Sandra Day O’Connor, who has died aged 93, had two principal claims to fame. The first was indisputable: she was the first woman to serve as a justice of the US supreme court, holding office from 1981 to 2006. The second claim was less certain but widely believed among her fellow US citizens – that hers was the key vote that put George W Bush rather than Al Gore into the White House after the cliffhanging election of 2000.
With the outcome dependent on Florida’s 25 electoral college votes, both candidates had asked a succession of state and federal courts to rule on the validity of Florida’s ramshackle voting procedures. A three-week succession of contradictory judicial rulings inevitably brought the case before the US’s highest court.
By this time O’Connor had already served in the supreme court for nearly two decades and had repeatedly cast the deciding vote in a succession of 5-4 judgments by the nine justices. With the court more or less evenly divided between conservatives and reformers, she had emerged as the reliable centrist in a wide range of criminal, social and political decisions.
The presidential election case centred on a Florida supreme court ruling that had extended the deadline for vote recounts. The inexorable reference to the US supreme court was greeted with private dismay by the justices. One of the conservatives, Clarence Thomas, later told a congressional hearing: “If there was a way … to have avoided getting involved in that very difficult decision and simultaneously living up to my oath, I would have done it.”
The ostensible issue was a narrow technical point with, as it turned out, vast international consequences. In her questioning, O’Connor repeatedly asked whether the Florida court was trying to change the rules in the middle of the election (a breach of the constitutional requirement for equal protection under the law).
Eventually, with her colleagues split down the middle, she voted to stop the recount, overturning the Florida judgment, and in effect awarding the election to Bush. There were, of course, immediate accusations that her Republican background had determined her decision.
Justice John Paul Stevens, one of those in the minority, warned that by questioning the impartiality of the Florida courts, the supreme court’s decision undermined confidence in judges, which “is the true backbone of the rule of law”. In his dissenting judgment he declared: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
In 2013, O’Connor herself expressed misgivings that the supreme court had taken on the Bush v Gore case at all, saying that the case “stirred up the public” and “gave the court a less than perfect reputation”.
The supreme court had been an all-male institution for 191 years when President Ronald Reagan nominated O’Connor as its 102nd associate justice in 1981, elevating her from the Arizona court of appeals.
She joined the eight men at the top of the legal hierarchy largely because Reagan had got himself into a political hole in his 1980 bid for the presidency, by opposing a constitutional move to outlaw sexual discrimination.
The Equal Rights Amendment was a lively issue because, though Congress had passed it in 1972, its ratification by the required 38 state legislatures missed the 1979 deadline, which was then extended to June 1982. With two years to go and three ratifications needed for victory, supporters ferociously lobbied the 1980 presidential candidates in the last chance they had for effective political action. (The amendment eventually died in November 1983 for want of state support.)
Reagan found himself squeezed between the demands of a block of increasingly significant female voters and the resistance of the die-hard Republican right. The battle over the amendment had, inevitably, become entwined with that about abortion. In an effort to divert this complex row Reagan promised that one of his first nominations to the supreme court would be a woman.
He was called on to honour this pledge far sooner than he expected. Barely had he arrived in the White House than Justice Potter Stewart announced his retirement. In his memoirs, Reagan said that his brief to the attorney general had been to find a female judge “who would interpret the constitution, not try to rewrite it”.
O’Connor was nominated because, he wrote, “everything we had learned about her during our months of searching convinced me she was a woman of great legal intellect, fairness, and integrity – the antithesis of an ideological judge, and just what I wanted on the court”.
His judgment in this instance turned out to be a great deal sounder than many of his others. Over the following decades O’Connor became a widely respected judge – and was seen by many as a strong contender to follow William Rehnquist as chief justice – and she established herself as one of the most important voices in the supreme court. Time and again she faced a 4-4 split in the court’s provisional opinions and was called upon either to devise a compromise before the formal judgment was proclaimed or, if compromise was impossible, to join one of the factions. Hers was the deciding vote on many controversial cases, when she often sided with her more liberal colleagues, including on gender equality cases, affirmative action and in upholding for many years the landmark abortion ruling Roe v Wade.
Her instinct was always to err on the side of judicial restraint and to accept the judgment of state courts, unless there appeared compelling grounds for federal intervention; this issue of states’ rights, enshrined in the 10th amendment, lies at the heart of US government and is often the foundation of political and legal disputes.
O’Connor had an unusual background for a supreme court justice. Describing herself as a “cowgirl from the Arizona desert”, she was born in El Paso, Texas, the daughter of Ada Mae (nee Wilkey) and Harry Day, and grew up on the 198,000-acre ranch her grandfather had acquired on the Arizona-New Mexico border in 1880, later leaving home to live with her grandmother in El Paso so that she could attend a private girls’ school.
From there she went to Stanford University in California, gaining a first in economics and then, as third best in a field of 102, a bachelor of law degree. At the top of that year was Rehnquist, supreme court justice from 1971 and chief justice from 1986 until his death in 2005. The two students became close friends.
Rehnquist’s progress was rather smoother than his classmate’s. Shortly after her graduation in 1952 she married her fellow student John Jay O’Connor and began a fruitless hunt for a legal position in California. As she commented later of the firms she approached, “none had ever hired a woman before as a lawyer and they were not prepared to do so”. The only offer she received was to work at one of the companies as a secretary.
When her husband joined the US army legal service she accompanied him to Germany for three years and worked as a civilian lawyer for the Quartermaster Corps. The first of their three children was born shortly after their return to Arizona in 1957, and though O’Connor started a legal practice in Phoenix it did little business and she was mostly preoccupied with domestic life.
She resumed her full-time career in 1965, serving as the state’s assistant attorney general for four years. When a seat in the Arizona state senate became vacant in the middle of its term, the state governor appointed O’Connor to fill it; she later took the seat as a Republican when it came up for election in 1972.
With a reputation for hard work and a precise and concise mind, she was elected the chamber’s majority leader in 1973, the first woman to hold such a position in US history. Her voting record was of moderate conservatism, with occasional excursions into social activism on issues such as contraception and women’s legal rights. After two terms in the legislature, however, she decided there was a brighter future in the judicial branch of government.
Under the system of voting for judges prevailing in many US states, she won election on the Republican ticket in 1975 to the county superior court, where she gained a reputation as a stern but fair judge, deeply concerned about prison conditions for those she sentenced. She also became more involved in politics at a national level, supporting Reagan’s candidacy against Gerald Ford in the 1976 presidential nomination battle.
O’Connor was encouraged by some of Arizona’s leading Republicans to run for the governorship against the Democratic candidate, Bruce Babbitt, in the 1978 elections, but she refused. In what was widely seen as a move by Babbitt to neutralise a dangerous political rival, he appointed her to the Arizona court of appeals soon after he took office.
In 1981, O’Connor was nominated as a supreme court judge. At her Senate confirmation hearing she laid out her philosophy of judicial restraint. Spelling out her commitment to the constitution’s separation of powers, she said: “Judges are not only not authorised to engage in executive or legislative functions, they are also ill-equipped to do so.” In the subsequent vote by the chamber she only missed unanimous confirmation because one of the 100 members was absent through illness.
During her years in the court she became extremely popular among the staff as a humorous and approachable boss. She started an aerobics class for female employees, in which she was an enthusiastic participant, and became well known for the informality of the conferences she held with young lawyers, handing out popcorn while discussing cases.
Largely under her influence, the court steered a firm, middle-of-the-road course through most of the contentious issues it had to confront. That was a solid achievement in itself. But her greater contribution was successfully to destroy the myth that women lacked judicial skills of the highest calibre. She cut a very large hole in the glass ceiling.
O’Connor retired from the supreme court in 2006, after her husband developed Alzheimer’s disease; he died in 2009. She continued as an active public speaker, and was an advocate for civic education. In 2018 she announced that she had developed early stage Alzheimer’s herself and would no longer play a part in public affairs.
She is survived by her sons, Scott, Brian and Jay, six grandchildren and her brother, Alan.
• Sandra Day O’Connor, jurist, born 26 March 1930; died 1 December 2023
Harold Jackson died in 2021
