2016 Selden Society lecture – the Hon Justice Margaret McMurdo AC on Justice Sandra Day O’Connor

2016 Selden Society lecture – the Hon Justice Margaret McMurdo AC on Justice Sandra Day O’Connor


Colleagues, distinguished guests, all.
Welcome to the Selden Society Australian Chapter lecture to be given by the Honourable Justice
Margaret McMurdo AC on Justice Sandra Day O’Connor. I welcome also those present virtually in the Courthouse
in Townsville. The Honourable Justice Margaret McMurdo AC
graduated Bachelor of Laws from the University of Queensland
in 1976 and served as clerk and then associate to Judge Denmack in the District Court and the Family Court of Australia 1975 to1976.
She was admitted as a barrister of the Supreme Court of Queensland in December 1976
and worked in the Public Defender’s Office from 1976 to 1989,
holding the office of assistant public defender 1978 to 1989.
She practiced at the private Bar in Brisbane 1989 to 1991 holding a commission to prosecute. Her Honour’s roles include being the first
woman to be appointed to the District Court of Queensland that was in January 1991, the
first woman appointed as the presiding Judge of an Australian appellate court being the
second President of the Queensland Court of Appeal appointed in July 1998 and a founding
committee member and president of the Women Lawyers Association. Justice McMurdo was awarded the Centenary
Medal in 2003 and received the Queensland Law Society’s Agnes MCWhinney Award in 2006.
She was appointed a Companion of the Order of Australia in 2007 and holds honorary doctorates
from Griffith University, 2000, Queensland University of Technology, 2009 and the University of Queensland, 2012. Looking around I can see that most of you
don’t really need any introduction such as I’ve given but I remind you all this lecture
will be on YouTube where others will also be looking at it no doubt. I ask you to welcome
our speaker. [APPLAUSE] Thank you Hugh. I acknowledge the traditional
owners of this land once known as Meanjin, the Turrbal people and across the river
the Jagera. I pay my respects to their elders past and present. Your Honours, members of the Selden Society,
ladies and gentlemen. It is my great pleasure this evening to share with you something of
the remarkable story of Sandra Day O’Connor, the first woman to be appointed an Associate
Justice of the US Supreme Court or FWOTSC (First Woman on the Supreme Court),
the acronym she gave herself. First, I will speak of her life before the US Supreme Court,
her formative ranch upbringing, the challenges for a young, women lawyer with children in
the 1950s and 60s, her grounding in Arizona Republican politics and the lead up to her
appointment. Second, I will speak of her work as an Associate Justice in the US Supreme
Court, although in this 50 minute address I can give but a small slice of the very large
O’Connor jurisprudential pie. I will focus on her opinions concerning Roe v Wade and
the ever topical issue of abortion. I will finish with an insight into this remarkable
woman’s public contribution since she resigned from the Court. For those of you who are not lawyers or judges,
it is important to understand that, unlike in Australia, England or New Zealand, US judges
are usually closely aligned to the politics of the government that appointed them, with
many judges actually elected on a Republican or Democrat ticket. I emphasise
that, Australia judges once appointed do not have party political affiliations and
are not expected to make judicial decisions according to the political view of the government
which appointed them. I fear this is something not understood these days by some Australian
politicians. And even in the US, the principle of judicial independence and the doctrine
of the separation of powers means that judges, at least those who are appointed, not elected,
cannot be expected to deliver opinions that accord with the view of the government that
appointed them. Sandra was the first child born to Harry and
Ada Mae Day in 1930 in El Paso, Texas, just as the Great Depression hit. Harry had planned
to attend Stanford University but the First World War and his father’s ill health led
him to take on the management of the family’s marginal cattle ranch, The Lazy B named after
its cattle brand a ‘B’, lying down. On the border between Arizona and New Mexico,
The Lazy B was “anything but a honeymoon cottage” yet this was where Harry brought
his attractive and refined new wife. There was no running water or electricity but Ada
Mae, who had grown up in comfortable circumstances, managed to cook for both the family and the
cowboys, wash clothes and linen using a corrugated washboard and was always impeccably dressed.
The locals enjoyed seeing her fashionable outfits when she came to town for the weekly
grocery shop, “it was the closest many of them came to seeing a stylish, well-dressed
woman.” The cowboys taught the Day children that only the toughest survive. Their mother
taught them that kindness and love can also produce survivors, and in a happy atmosphere.
From those earliest years, Sandra learned both courage and compassion. At the tender age of six, she went to live
with her maternal grandmother in El Paso to attend school. She missed ranch life and was
desperately homesick but she knew she had to be brave, like the cowboys. When reflecting
on her youth as an adult, she always focused on the romantic ideal of her ranch upbringing,
even though she spent most of her childhood in El Paso where she attended a number of
schools including the Radford School for Girls and Austin High. Her sister Ann was not born until Sandra
was nine years old. Their brother Alan came along 18 months later. There was no room for
self-pity or wallowing in the Day household, there was a job to be done, it was done,
no excuses accepted. In her memoir, Lazy B co-written with Alan, Sandra recounts an exceptionally
hot day in the middle of the 1945 Arizona summer. She was 15 years old and home for
the holidays. Her father and the cowboys were out branding cattle. She and her mother had
prepared their lunch and she was to deliver it by driving an old truck a considerable
distance over rough terrain. She was far from the ranchhouse when the truck became wobbly
and heavy, the left tyre was flat as a pancake and she was the only one around. Luckily there
was a jack and a spare tyre. She put rocks behind the other three tyres to stop the truck
rolling and jacked it up. But the lug nuts were rusted and wouldn’t move. She jacked
the truck back down and managed to loosen the nuts by stomping her foot on the lug wench,
finally cracking them loose. She jacked the truck up again and finished the job. Feeling
pretty chuffed, for a 15 year old she arrived with lunch, one hour late but with good reason.
She expected paternal praise for her initiative and resourcefulness. Instead her father ignored
her. When he finally spoke, he said, “You are late.” When she explained her misadventures,
he gruffly responded, “You should have started earlier, you need to expect anything out here.”
An obstacle was not an excuse, and overcoming it was not an accomplishment. Harry Day didn’t
touch the lunch his adoring 15 year old daughter had so carefully prepared and taken so much
trouble to deliver. He was, however, a kind man, revered by his children. He was also
a perfectionist who never admitted to being wrong. Harry was pleased to live out his thwarted
academic hopes through Sandra when, in 1946, she enrolled at Stanford University. She completed
a BA in economics in a mere two years. Her classmates remembered a popular co-ed with
fashionable clothes, and a friendly nature who made everyone feel at ease and who was
adept at disguising her considerable intelligence. And to prove what a shrinking world we live
in, Justice Peter Applegarth tells me his next door neighbour was at Stanford with Sandra
Day. As Sandra enjoyed a law class in her undergraduate
degree, she successfully applied to the law school, becoming one of only five women in
the class. She went to the movies on a few dates with another law student, Bill Rehnquist.
Little did they think, serving together on the Stanford Law Review where Bill was the
presiding editor-in-chief, that decades later, they would serve together on the US Supreme
Court, Bill again presiding, this time as Chief Justice. Bill was no competitor in the boyfriend stakes
for another student working on the Stanford Law Review, John Jay O’Connor III. The debonair
John suggested he and Sandra complete an article over a beer at the pub. This led to a date
the next night and the 39 nights after that. As their relationship became serious, Sandra
took John, a San Francisco city slicker unaccustomed to ranch life, to visit The Lazy B. When they
arrived, Harry was branding cattle while the cowboys castrated steers and earmarked calves.
Harry “reached into a dirty-looking bucket and pulled out a couple of bloody testicles,”
trimmed the “mountain oysters,” as they were known in Arizona, put them on baling
wire and placed them over the branding fire. He handed the skewer to John, directing him
to eat. Like Sandra, John was not short of courage. He ate up, winning Harry’s respect
and Sandra’s heart. It was a most memorable welcome to The Lazy B. As graduation approached, Sandra, who had
an excellent degree, called each of the 40 firms that advertised vacant positions on
the Stanford noticeboard. None would hire a woman. By contrast, Bill Rehnquist had begun
a prestigious Supreme Court clerkship with Justice Robert Jackson. Although Sandra was
only one or two places behind Bill, it was unthinkable in 1952 for a male Supreme Court
Justice to have a female clerk. Sandra circumnavigated that obstacle by asking
her girlfriend’s father, who worked in the large law firm, Gibson, Dunn & Crutcher, to
meet with her. He said she had an outstanding resume but could not see his firm hiring
women lawyers, clients wouldn’t stand for it. Instead, he offered her a job as a legal
secretary, which she politely refused. She surmounted that obstacle by writing to
the San Mateo County Attorney who was considered a revolutionary as he hired women lawyers.
He was very impressed but didn’t have funding for another Deputy County Attorney. Sandra
overcame this obstacle by immediately offering to work without a salary. There was yet another
problem, no vacant office. She overcame that obstacle by working from a temporary desk
in the secretary’s area. She had neither salary nor office but she had her first job
as a lawyer. Her enthusiasm paid off. Four months later when the County Attorney was
appointed to the bench, Sandra became a Deputy County Attorney. Like so many trailblazing
women in the law at this time, her career began in the public sector. Life was exciting, she loved her legal work
and she and John married at the Lazy B in December 1952. The following year, John was
drafted into the army during the Korean War and they moved to Frankfurt for four years.
John worked in the Judge Advocate General Corps and Sandra was a civilian attorney for
the United States Quartermaster Corps. When John left the army, they decided to stay in
Europe to ski until the money or the snow ran out. After three months, with both the
money and the snow gone, the O’Connor’s came home to settle in Phoenix, Arizona. They
each passed the Bar exam in the summer of 7957. Three days after they were admitted
to the Arizona Bar, their first son, Scott, was born. Sandra found a babysitter and went job-hunting
but law firms were still not hiring women. She overcame that obstacle in the following
spring when she and Tom Tobin, who met while studying for the Bar, set up their own firm. With second son, Brian’s birth in 1960 and
her babysitter moving away, she left paid employment for about five years. But she was
not your regular stay-at-home 1960’s all American Mom. She had developed an interest
in Republican politics, eventually becoming county vice-chairman of the Republican Party
and also President of its all-female Phoenix Junior League, a voluntary community service
organisation. She was influential in both the male dominated mainstream party and the
party’s women’s group. A third son, Jay was born in 1962. In 1965
she returned to paid employment as an assistant state attorney general, the first woman in
that office. She wanted to work part-time, not to spend more time at home, but because
her role as President of the Junior League was time consuming. But part-time work was
not then an option. She overcame that obstacle by making herself indispensable in her legal
role. Her employer then agreed she could work on her terms, including part-time. In 1969, a vacancy arose in the Arizona State
Senate. She was encouraged to stand, was selected as a Republican candidate, and was successful
in the next Senate election. Senator O’Connor was made chair of the State, County and Municipal
Affairs Committee, and a member of the Appropriations and Judiciary Committees. In a 1970 speech to women students at Arizona
State University, Senator O’Connor joked, “one advantage to being a woman in politics
is that while it is not too difficult to put your foot in your mouth in politics, it is
a lot harder to do when you are wearing high heels.” She also quoted anthropologist Margaret
Mead, “If women want real power and change, they must run for public office and use the
vote more intelligently.” She took Mead’s advice and in 1972, ran for and won the role
of majority leader of the Arizona Senate, the first woman to hold such a position in
the United States. During her time in the Arizona Senate, she
effectively lobbied for the repeal of several gender discriminatory laws, including a Bill
that repealed a law preventing women from working more than 8 hours a day. She argued,
“These laws were originally designed to protect women. Today, they tend to discriminate
against them and to cause them economic harm, because they make employers unwilling to hire
women when the job might, on some occasions, require overtime.” She led the revision of laws governing community
property to give women rights of management over marital property, and sponsored the removal
of male only language in legislation. She is remembered by her colleagues for her devotion
to detail, once introducing an amendment to insert a comma into a Bill as she felt this
clarified the meaning of the new legislation. She became skilled at building consensus to
pass legislation, through understanding her fellow politicians, tactfully reframing issues,
and being firm when necessary. Family life remained her bedrock. Even while
leading the majority of the Arizona senate, she cooked dinner for her family every night.
Husband John joked, “I think it is a tribute to American democracy when a cook, who moonlights
as a janitor, can be elected to high public office.” In the 1970’s when “feminists” were
considered “radical” and frightened the Republican conservative wing, Senator O’Connor,
a successful high achieving woman lawyer and politician, managed not to seem threatening.
She was an attractive, blonde, wife and mother, with traditional feminine country charm and
excellent Republican credentials, who often reassured her audience that she had “come
with her bra and her wedding ring.” In 1974, after two terms, she announced she
would not seek re-election as a senator. One month later, she announced her candidacy for
a new superior court judgeship in Maricopa County, an elected position. In a tightly
contested primary, her legal credentials were questioned by her Republican opponent, “No
judge I know ever remembers seeing Mrs O’Connor in the courthouse.” In her defence she said, “There are lots
of lawyers who can go in and fill the functions of a judge but they may not be able to make
constructive changes. We need to ask which person has demonstrated some leadership and
capacity to improve the system.” She won 70% of votes and, with no Democrat
opponent, she took up the role in 1975. She later frankly described her trial experience
in a way that trial judges I think might understand, “There are moments of great pathos in a
courtroom and there are moments of levity and there are moments of boredom.” In 1978, she was encouraged to run for Governor
of Arizona but she declined as she knew she did not have the numbers. The selected Republican
candidate lost to Democrat, Bruce Babbitt. In 1979, Governor Babbitt appointed Judge
O’Connor to the Arizona State Court of Appeals. Some claimed her elevation was motivated by
Babbitt’s desire to remove the threat of a strong future Republican gubernatorial candidate.
Governor Babbitt insisted he appointed “the most qualified person who also happened to
be a woman.” Shortly before her swearing in as an Appeals
Court Judge, the O’Connors, both considered excellent conversationalists, were invited
on a houseboat vacation on Lake Powell with Supreme Court Chief Justice Warren Burger.
Chief Justice Burger was impressed by Judge O’Connor’s “personal warmth and legal
experience and began thinking about ways to involve her in national legal conferences.”
He later invited her to join the US delegation attending an Anglo-American legal conference
in London. The 1980 Republican presidential candidate,
Ronald Reagan, was fighting to remove the incumbent Democrat President, Jimmy Carter.
At its national convention, the Republican Party renounced its support for the proposed
equal rights amendment to the US Constitution to guarantee equal rights for women. It aligned
itself with pro-life, anti-abortion groups. Many women were unimpressed and polling revealed
declining female support for the Republican Party and its presidential candidate. An October
1980 poll found that Carter was leading Reagan among women voters, 38 to 31 percent. In response,
Reagan promised that, if elected, he would appoint a woman to the Supreme Court. He was
elected and, when Justice Potter Stewart announced his retirement in June 1981, the search for
his replacement began. Unsurprisingly, Sandra Day O’Connor’s name was on Reagan’s
list and the White House sent representatives to Arizona to “scout” her. Attorney General
Bill Smith, a former partner of Gibson, Dunn & Crutcher, the firm who in 1952 refused her
a graduate job but offered her employment as a secretary, called to ask her to Washington
to talk about a position. Addressing the firm’s centennial celebration in 1990, she recalled, “I can remember as if it were yesterday
when Bill Smith telephoned me on June 26, 1981, to ask if I could go to Washington D.C.
to talk about a position there. Knowing his former association with your firm, I immediately
guessed he was planning to offer me a secretarial position, but would it be as Secretary
of Labor or Secretary of Commerce?” Events moved quickly. On 1 July she met with
President Reagan at the White House where they discussed their shared love of ranch
life. Recounting the meeting in an interview years later, she said she flew home not thinking
she would be asked to serve and breathed a sigh of relief. But the President did not
interview anyone else and instructed staff to complete the groundwork for the nomination.
Judge O’Connor’s name was strategically leaked to the press. Five days later, President
Reagan phoned and offered her the nomination as the 102nd Justice of the US Supreme Court,
and the first woman Justice. She accepted and on July 7, 1991 the President made the
nomination public, stating, “she is truly a person for all seasons,
possessing those unique qualities of temperament, fairness, intellectual capacity, and devotion
to the public good which have characterized the 101 brethren who have preceded her. I
commend her to you, and I urge the Senate’s swift bipartisan confirmation so that as soon
as possible she may take her seat on the Court and her place in history.” Bipartisan goodwill flowed to Judge O’Connor,
with national jubilation about the historic nomination of a woman. Democrat Senator Edward
Kennedy said, “Every American can take pride in the President’s commitment to select
such a woman for this critical office.” Barbara John, an African-American Democrat
congresswomen from Texas, said, “The Supreme Court was the last bastion of the male: a
stale dark room that needed to be cracked open. I don’t know the lady, but if she’s
a good lawyer and believes in the Constitution, she’ll be alright.” And of course, women’s
groups, not just in the US but around the world, were elated. Some say life imitates art and, in the US,
art includes Broadway and Hollywood. The Broadway play, “The First Monday in October”, starring
Henry Fonda and Jane Alexander, had opened in 1978. The plot revolved around the imaginary
appointment of the first woman Supreme Court Justice, a conservative, who clashed intellectually
with an older liberal Justice but over time they developed mutual admiration and respect.
The play became a film in 1981 with Walter Matthau and Jill Clayburgh, both nominated
for Golden Globe Awards. Although not due for release until February 1982, following
Sandra Day O’Connor’s nomination, the canny producers brought forward its release
to August 1981. Meanwhile Judge O’Connor prepared for the
confirmation hearings. She studied not only legal questions but also Senators’ personal
histories and interests, so that she could reference her answers to their work in the
area. She had experience in assisting Justice Rehnquist prepare for his confirmation hearings
in 1971, and she had learned the political skills to neutralise adversaries. One of the most controversial issues being
litigated by the US Supreme Court at this time was abortion. In 1973, in Roe v Wade,
Justice Blackmun delivered the opinion of the Court in which Chief Justice Burger and
Justices Douglas, Brennan, Stewart, Marshall and Powell joined, with only Justices White
and Rehnquist dissenting. The Court held that the right to privacy under the fourteenth amendment
extended to a woman’s decision to have an abortion. The right, however, needed to be
balanced against two important State interests in regulation, protecting and preserving the
health of pregnant women, and protecting the potentiality of human life. To reconcile the
two competing considerations, the Court adopted a “bright line rule” that left the decision
as to abortion in the first trimester for the woman, but the closer the woman became
to delivery, the more the State was permitted to regulate. During the confirmation hearings she was repeatedly
asked her views on abortion. Pro-life Senators raised that, as an Arizona Senator, she had
supported the repeal of a law decriminalising abortion. She agreed that she had supported
the repeal of the law, which did not allow for a rape victim to undergo a prompt procedure
to prevent pregnancy. She added that her knowledge of the issues had grown since and she would
no longer support the repeal of the law. When asked about her personal feelings, she said
that she found abortion “repugnant” and “something in which she would not engage”.
Socially conservative Reagan supporters wanted to know whether she would vote to overrule
Roe v Wade if given the opportunity. She rightly refused to answer. This could compromise her
independence in deciding the issue in the future. She did, however, allay concerns about
judicial activism saying, “My experience as a State court judge and
as a State legislator has given me a greater appreciation of the important role the States
play in our federal system, and also a greater appreciation of the separate and distinct
roles of the three branches of government at both the State and the Federal levels.
Those experiences have strengthened my view that the proper role of the judiciary is one
of interpreting and applying the law, not making it.” In contrast to more recent nominees, Judge
O’Connor’s confirmation hearings were gentle. The transcript of them was 420 pages
over three days, whereas those for Justices Sonia Sotomayor and Elena Kagan, the last
two Justices appointed to the Court, were over four days and covered 1406 pages and
1117 pages respectively. Despite the concerns of the pro-life lobby, Judge O’Connor was
unanimously confirmed 99-0. She would have received 100 affirmative votes but one Senator
was out of town. By contrast, Justice Rehnquist was confirmed 68 – 26, Justice Sotomayor
68 – 31 and Justice Kagan 63 – 37. The 51 year old Sandra Day O’Connor was
sworn in as the 102nd Associate Justice of the US Supreme Court on 20 September 1981
by Chief Justice Burger. Later, when posing with FWOTSC for photos outside the Court,
the Chief Justice joked in a way that was common at the time but now seems inappropriate,
“You’ve never seen me with a better looking Justice, have you?’ Justice O’Connor was expected to be conservative
in her judicial opinions but it was unknown whether, and if so to what extent, they would
be influenced by her views on women’s rights and her personal experiences of discrimination.
Her opinions came to bear out the views she expressed in her confirmation hearings that
she believed in the incremental development of the law, not radical change. Over time,
her opinions also came to reflect her astute understanding of how far at any given point
she could push both societal acceptance and enough judges to achieve a majority. This
approach suited her coalition building style learnt as an Arizona politician. Much is known about the deliberations of the
Supreme Court Justices at this time because Justice Thurgood Marshall, the first African
American to be appointed to the Court who served from 1967 to 1991, left his revealing
personal and judicial papers to the Library of Congress. On his death in 1993 they were
controversially made public. Following oral argument, the judges routinely
held a conference after the hearing to discuss their views as to the outcome of the case,
with the most senior judge speaking first and the most junior, last. In Justice O’Connor’s
early years on the Court, this allowed her as the junior judge to sense the majority
opinion, with which she usually aligned herself, mostly joining or concurring with Justice
Rehnquist. When a Supreme Court Justice joins in a circulated opinion of another Justice,
or part of it, the Justice agrees with the reasoning. When a Justice writes a concurring
or partially concurring opinion, the Justice agrees with the outcome in the circulated
opinion, or part of it, but either expresses different reasons or additional reasons. As
Justice O’Connor’s seniority, experience and confidence increased she would often remain
uncommitted at the post-hearing conference so that, in close cases, both sides would
vote for her crucial vote, would vie for her crucial vote. She worked the Court like a seasoned politician, using her opinion
as a strategic tool in a case by case approach. She often diluted a joint opinion of its binding
authority by writing a separate concurrence. On many issues, for example abortion, she
used her opinions and concurrences over successive cases, to move the court to the centre and
to adopt her reasoning. In 1993, just two years after Justice O’Connor
joined the Court, it considered the issues relating to abortion and the correctness of Roe v Wade
in City of Akron v Akron Center for Reproductive Health. Ohio had enacted laws that, required
all abortions after the end of the first trimester to be performed in hospitals, prohibited unmarried
minors under 15 from having an abortion without parental or judicial consent, mandated that
an abortion could not be performed until 24 hours after the patient signed a consent form
compelled doctors to obtain informed consent from patients before abortion could be performed,
and created criminal sanctions against doctors who failed to dispose of foetuses in a “humane”
way. Justice Powell delivered the majority opinion
of the Court, in which Chief Justice Burger and Justices Brennan, Marshall, Blackmun and
Stevens joined, striking down the laws and applying the test from Roe v Wade. Justice
O’Connor, with whom Justices White and Rehnquist joined, dissented. She considered the majority
Roe v Wade test was too focused on the trimester stages of pregnancy. In her view, the point
at which the foetus became viable was a sliding scale, stringent delineation between the trimesters
was artificial. As medical science improved, the foetus could become viable within the
first trimester. She considered the focus instead should be on whether the impugned
laws were “unduly burdensome”. She considered States could regulate abortion as long as
they did not impose an “undue burden” on a woman’s decision to terminate the pregnancy.
She would have upheld all the impugned Ohio laws as in her view none were “unduly burdensome”. The “undue burden” test in Akron is an
excellent example of Justice O’Connor’s preference for a contextual, fact driven,
case by case approach, recognising medical developments and social change, over what
she apprehended as the less flexible legal doctrine of the strict, trimester based, bright
line rule in Roe v Wade. Following the death of Chief Justice Burger,
the retirement of Justice Powell, Justice Rehnquist’s elevation to Chief Justice and
the appointment of Justice Scalia in 1986, the Court was seen as having four staunch
conservatives, Justices Rehnquist, Scalia, Kennedy and White and four staunch liberals,
Justices Brennan, Blackmun, Marshall and Stevens. Justice O’Connor used her swing
vote to such great effect in these year that the US Supreme Court was known as “the O’Connor
Court”. In October 1988 Justice O’Connor was diagnosed
with breast cancer and required an immediate mastectomy. Another obstacle to be overcome.
This courageous and resilient rancher left hospital after five days, and five days after
that was back hearing oral arguments. She scheduled chemotherapy for Fridays so she
had the weekends to recover, and did not miss a day in court. She found work therapeutic.
Her treatment was successful and she allowed her story as a breast cancer survivor to be
publicised to assist other women battling the disease. The following year, six years after Akron,
in Webster v Reproductive Health Services, the Court considered the lawfulness of a Missouri
statute that, required all state laws to be interpreted to provide unborn children with
equal rights to other persons, subject to the limits imposed by the Constitution, prohibited
government doctors from performing an abortion if they believed the foetus was viable, prohibited
the use of State resources to perform or assist abortions, unless necessary to save the mother’s
life and prohibited government from encouraging or counselling a woman to have an abortion
unless, it was necessary to save her life. Chief Justice Rehnquist considered there was
no affirmative obligation on States to fund nontherapeutic abortions, viability testing
after 20 weeks was constitutional, significantly narrowing the application of Roe v Wade, abortion
restrictions were allowed if they “reasonably further the State’s interest in protecting
potential human life”. Justices Blackmun, Brennan and Marshall dissented in part, not
wishing to narrow the application of Roe v Wade. At conference, Justice O’Connor initially
voted with the conservative block. Justices White, Scalia and the newly appointed Kennedy
informed Rehnquist they would join in his opinion, but Justice O’Connor, uncharacteristically,
did not immediately respond. Over a month later, she issued her concurrence, agreeing
with the Chief Justice in the result but not accepting his rejection of Roe v Wade. Applying
the test she articulated in Akron, she held that “a regulation imposed on lawful abortion
pre-viability is not unconstitutional unless it unduly burdens the right to seek an abortion.”
Further, as the constitutional validity of the Missouri laws did not turn on the constitutional
validity of Roe, “there is no necessity to accept the State’s invitation to reexamine
the constitutional validity of Roe v. Wade. When the constitutional invalidity of a State’s
abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time
enough to reexamine Roe. And to do so carefully.” In this way she deprived Chief Justice Rehnquist
of a majority opinion to overturn Roe v Wade. Justice Scalia was furious and then wrote
his own concurrence with the Chief Justice’s opinion. Making a stinging attack on Justice
O’Connor’s refusal to revisit Roe v Wade which, he was adamant, should be overturned. Justice Blackmun, the author of the majority
opinion in Roe v Wade almost two decades earlier, in his partial dissent in which Justices Brennan
and Marshall joined, said, “Today, Roe v Wade,…and the fundamental
constitutional right of women to decide whether to terminate a pregnancy, survive but are
not secure… I fear for the future. I fear for the liberty and equality of the millions
of women who have lived and come of age in the 16 years since Roe was decided. I fear
for the integrity of, and public esteem for, this Court”. Webster firmly placed the fate of Roe v Wade
in the balance and Justice O’Connor was poised to decide its future. That opportunity
arose in 1992 in Planned Parenthood of Southeastern Pennsylvania v Casey. The Federal Court of
Appeals, relying on Justice O’Connor’s opinion in Webster, had ruled that Roe v Wade
no longer commanded a majority of the Supreme Court. Utilising Justice O’Connor’s “undue
burden” test, they upheld Pennsylvanian laws which, required the passage of 24 hours
between the doctor giving exhaustive information about the abortion process and obtaining informed
consent, and any abortion, required the informed consent of at least one parent if a minor
was having an abortion, with a judicial bypass procedure as an alternative, required reporting
by abortion facilities and excused noncompliance with these requirements in “medical emergencies”.
The Federal Court of Appeals did not uphold a provision in the laws that required women
to alert their husbands of their intention to have an abortion. Until now, Justice O’Connor had yet to find
a law that regulated abortion and which amounted in her opinion to an “undue burden” under
her test. During oral argument, she made clear that she was uncomfortable with the spousal
notification provision. At the post-hearing conference, the clear
majority of Justices voted to uphold the laws, except for the spousal notification provision.
But it remained to be seen whether Chief Justice Rehnquist would have a majority to overturn
the reasoning in Roe v Wade. Following the conference, Justice Souter, who was appointed
by President George W Bush but came to be considered a liberal judge, approached Justices
O’Connor and Kennedy, both Reagan appointees but seen as moderates. Justice Souter expressed
his preference for upholding the central principle of Roe v Wade, that the fourteenth amendment
implies and protects a woman’s fundamental but not unlimited right to control the outcomes
of her reproductive actions. He recognised that advances in maternal health and neo-natal
care meant that the rigid trimester framework of Roe v Wade should be replaced by Justice
O’Connor’s undue burden test, as she articulated almost a decade earlier in Akron. The three
justices each wrote a section of a jointly drafted opinion, which began, “Liberty finds no refuge in a jurisprudence
of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right
to terminate her pregnancy in its early stages, Roe v Wade, that definition of liberty is
still questioned.” The end result was that the Court, by a 5
to 4 majority, Justices Stevens, Blackmun, O’Connor, Kennedy and Souter, with Chief
Justice Rehnquist and Justices White, Thomas and Scalia dissenting, upheld Roe v Wade’s
recognition of a woman’s right to choose to have an abortion before foetal viability
confirmed the right of the State to restrict abortions after viability, with exceptions
for pregnancies endangering a woman’s life or health and affirmed that, from the start
of the pregnancy, the State has legitimate interests in protecting both the woman’s
health and the life of a foetus that may become a child. Ultimately, all the impugned Pennsylvanian
provisions, except for spousal notification provision, were upheld by a differently constituted majority.
But what this all meant was that, with the critical five votes including Sandra Day O’Connor’s,
Roe v Wade was safe. Announcing the opinion in Court, Justice O’Connor,
consistent with her answers during the confirmation hearings, said, “Some of us as individuals
find abortion offensive to our most basic principles or morality, but that cannot control
our decision. Our obligation is to define the liberty of all, not to mandate our own
moral code.” More than twenty five years later, Justice
O’Connor’s undue burden test remains the standard against which US State laws regulating
abortion must be measured. Earlier this year in Whole Woman’s Health v Hellerstedt the
undue burden test, engineered over time by Justice O’Connor, was once again applied. When Ruth Bader Ginsburg joined the Court
in 1993, Justice O’Connor publicly expressed her delight, and also her relief from the
media clamor of FWOTSC. The Christian rancher Republican and the Jewish, Brooklyn Democrat
had very different backgrounds and jurisprudential approaches but each was strengthened by the
other’s presence on the Court, conscious of their shared heavy responsibilities as
female role models committed to gender equality. Bush v Gore was another of the many cases
where Justice O’Connor’s decision was critical to the outcome, here ending challenges
to the Florida voting results in the 2000 presidential election, and effectively securing
George W Bush’s success. The Court was split 5 to 4 with Justice O’Connor’s vote again
crucial. Some later argued she should have recused herself as her husband
John, suffering from early onset Alzheimers, said at a public function shortly before the
Court heard the case, that if Gore won the election, Sandra could not retire to Arizona
for at least another four years. Twelve years later, with hindsight, she was widely reported
as stating that Bush v Gore was a case in which the US Supreme Court should not have
become involved. In her later years on the Court Justice O’Connor
voted more often with the liberal judges, supporting affirmative action, striking down
the death penalty insofar as it applied to the mentally retarded and declaring criminal
sodomy laws unconstitutional. In terms of life imitating art, perhaps she was turning a little
into Jill Clayburgh’s character in the Hollywood film, “The First Monday in October”. In 2005 she became the first woman justice
to preside in the US Supreme Court when Chief Justice Rehnquist was ill and battling cancer.
She announced her retirement on 19 July 2005, to take effect on the appointment of her successor.
She intended to spend more time with John whose Alzheimer’s had progressively worsened.
President George W Bush announced US Court of Appeals for the District of Columbia Circuit
Judge, John Glover Roberts Jnr, as her successor. But when her dear friend and colleague, Chief
Justice Rehnquist, died on 3 September 2005, the President nominated Judge Roberts as Chief
Justice. Initially, White House Counsel, Harriet Miers, was to replace Justice O’Connor.
After prolonged controversy however President Bush withdrew Ms Miers’ nomination and instead
nominated Judge Samuel Alito from the US Court of Appeals Third Circuit, who was confirmed
and sworn in on January 31, 2006 and Sandra Day O’Connor left the US Supreme Court. Since leaving the Court, she has remained
an active contributor to public life. She has become a champion of fostering public
appreciation of the principle of judicial independence, arguing against the notion of
elected judges. In 2012, she testified before the Senate Judiciary Committee on the importance
of civil education. She helped establish ‘iCivics’, a website initially focused on the judicial
branch of government but later expanded to include the legislature and executive. The
iCivics website engages at least 4 million students and 110,000 teachers through online
games such as “Supreme Decision” where the player is a Supreme Court justice who
must cast the deciding vote in an important case, and “Do I have a Right?” where the
player is a constitutional lawyer, taking clients’ instructions, determining their
rights and running their cases. I met Sandra Day O’Connor not long after
her retirement when she visited Brisbane on 13 September 2006. She travelled to Australia
to speak at an Australian Institute of Judicial Administration (AIJA) conference in Adelaide.
Justice John Byrne was then the President of the AIJA and hosted her whirlwind
visit. She travelled to Brisbane, she confessed to me, primarily to visit Australia Zoo. She
was a great fan of Steve Irwin who tragically died only a few weeks earlier. I heard FWOTSC
speak warmly and encouragingly to a group of awestruck Queensland University of Technology
law students about judicial independence and the important role of lawyers in protecting
it. When I met her again later that night at a function at Government House hosted by
then Queensland Governor Quentin Bryce AC, like a groupie I had her sign my copy of her
book, “The Majesty of the Law.” At 76, her intellect remained sharp and she was still
an excellent conversationalist, charming, unassuming and smartly groomed, wearing bright
coloured stiletto shoes. I think she was competing with the Governor. I am pretty confident she
was also wearing her bra and her wedding ring. She seemed genuinely pleased and a little
surprised when I spoke of her influence on Australian women lawyers of my generation
as an exemplar role model. We chatted of the challenges of working in demanding careers
as “first women” and the more general challenges for working women raising families,
especially in the teenage years. You may not be surprised to hear that her solution to
the “terrible teens” was ranch holidays! She also spoke frankly of her profound sadness
that John’s illness had deteriorated so far that she could no longer care for him
and that he was now in a facility. I was interested to hear at an International
Women Judges’ Conference some years later that John was initially very unhappy in the
facility but later fell head over heels in love with a woman patient. I apprehend this
is not uncommon behavior for sufferers of Alzheimers. After 55 years of marriage, the
courageous and compassionate Sandra Day O’Connor, with the support of her sons, gave John her
blessing. She was relieved to see him no longer anxious and depressed but happy as a school
boy. She allowed the story to become public to assist other Alzheimer patients and their
families, and to inform the public of the effect that the disease can have on marriage
and carers. In 2008 she testified before the Senate Special Committee on Ageing and called
for a national strategy against Alzheimer’s to find a breakthrough by 2020. John Jay O’Connor
III died on 11 November 2009. More sadness followed in May this year, when
her younger sister, Ann, who also became an Arizona Senator, was killed in a dreadful
two-car crash, with the driver of the other vehicle charged with manslaughter. Despite those sadness’s Sandra Day O’Connor
has continued to live a rich and full post-Supreme Court life, both in the law and academia.
For many years she has sat regularly on federal appellate courts when an additional member
was needed to fill a vacancy. She took over in 2006 from Henry Kissinger as the Chancellor
of the venerable and renowned Virginian University, the College of William and Mary and, served
in that role until 2012. I do not always agreed with President Reagan’s
views, but his description of Sandra Day O’Connor in announcing her nomination was apt, “She
is truly a person for all seasons, possessing those unique qualities of temperament, fairness,
intellectual capacity and devotion to the public good.” To those qualities I would
add courage and resilience learnt on the ranch from the cowboys, allowing her to overcome
obstacles others would find unsurmountable. And, like her mother Ada Mae, she shared
compassion and moments of pleasure with all those whose lives she touched. Sandra Day O’Connor has received countless
well-deserved honours, culminating in President Obama’s 2009 Medal of Freedom, the highest
civilian honour in the United States. But I suspect her favourite accolade was her induction
into the National Cowgirl Museum and Hall of Fame as Cowgirl Honoree. Even Harry Day
would have approved. Thank you . [APPLAUSE] It’s my pleasure to move the vote of thanks
for the lecture. We have been treated to an illuminating and educational lecture about
Sandra Day O’Connor. Which educated us not only about her legal and judicial career,
but about her personal life whilst a lawyer, a judge and afterwards and before. It is remarkable
to reflect how much we have learnt, well at least I have learnt in the 50 minutes that
was occupied by the lecture. It was characteristically succinct and thorough at the same time. May
I ask you once again to thank our speaker. [APPLAUSE] And it’s my pleasure to pass over the usual
gift, to our speaker. [APPLAUSE] Just two final things I should mention. First
and importantly you may wish to mark your diaries for the next lecture in the series
which will be given by the Honourable Richard Chesterman AO RFD QC, who I’m pleased to
note is in the audience tonight, on Legal History of Queensland – the Supreme Court fire of
1968. And lastly and not quite as importantly but still importantly you are all invited
to enjoy refreshments in the foyer now. Thank you. [APPLAUSE]

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