Sandra Day O’Connor, who died on December 1, was an accomplished jurist who demonstrated that women lawyers and judges are every bit as good as men. Although there were very few job openings for women when she graduated with honors from Stanford Law School in 1952, her remarkable example has brought about a dramatic change in the legal profession. Women have not been handed equality in the legal workplace, they have earned it. I won’t say they have achieved full equality, but there has been tremendous progress over the years. O’Connor helped to forge the way.
I had the privilege of observing Justice O’Connor in action on three occasions in the 1980s and came away mightily impressed. The first instance was in 1983, when the Supreme Court finally heard argument in a case filed in 1975 by former Idaho Attorney General Wayne Kidwell against Oregon and Washington. Kidwell rightly claimed the downstream states were endangering salmon and steelhead runs by overfishing. In 1980, the Court sent the case to trial, which resulted in a decision against Idaho. As Idaho’s AG at the 1983 hearing, I argued that enough fish should be allowed to return to Idaho to perpetuate the runs and provide Idahoans with an allocated share.
It was clear during the hearing that Justice O’Connor understood the need to protect and perpetuate the runs for the benefit of everyone. A number of her male colleagues could not seem to grasp that basic concept. When the decision came out, O’Connor wrote an outstanding opinion favoring Idaho. Unfortunately, it was a dissent that only two other Justices agreed with. It was not a total loss because the majority ruled that states which share a natural resource must “take reasonable steps to conserve and even to augment” the resource for the benefit of all. However, the majority refused to implement a conservation and allocation formula because the runs in the 5-year period selected by the trial judge were so depressed that a formula would be pointless. In other words, there were not enough fish to mess with during those 5 years, so why bother?
O’Connor argued that the use of the 5 years of depressed runs was a serious error and that it was precisely because the runs were so endangered that Idaho had made its case. Had the good old boys on the Court paid attention to her well-reasoned opinion, our wild runs of salmon and steelhead would undoubtedly be in better condition today.
The second case arose in 1980, when Legal Aid attorneys filed a suit challenging the conditions of confinement for juveniles at Idaho’s State Hospital South in Blackfoot. The suit was brought on behalf of a mentally challenged 15-year-old boy, Jeff D., who was not being provided with necessary mental health services. The State recognized it was in the wrong and eventually agreed to a settlement that was better than the judge might have granted, but which required the Legal Aid attorneys to waive any claim for attorney fees against the State. However, after settling, they renewed their attorney fee request and the case ended up before the Supreme Court in 1986. O’Connor was active and engaged during the argument, but did not write a separate opinion. She and four others joined Justice Stevens’ opinion, ruling in favor of Idaho. Even though the fee issue was fully resolved, the underlying Jeff D. case still lives on to this very day.
In my third trip to the Supreme Court, Justice O’Connor wrote a majority opinion, holding against the State. A jury had convicted Laura Lee Wright of lewd conduct with her daughters, ages 5 ½ and 2 ½. The trial judge found that the younger daughter was unable to testify to the jury, but allowed a pediatrician to testify as to what she had told him about the abuse. Wright was convicted for abusing both, but the Idaho Supreme Court overturned the conviction for abusing the younger daughter on hearsay grounds.
The State sought and was granted review by the nation’s high court. In Justice O’Connor’s 1990 opinion, she and four other members ruled the admission of the pediatrician’s testimony violated Wright’s constitutional right to confront her accuser. Had there been indicators that the testimony was particularly trustworthy, the conviction might have been upheld. Justice O’Connor wrote in a scholarly fashion, providing needed guidance in sex abuse cases involving younger victims. I did not agree with the ultimate outcome, but I respected the manner in which she handled the case.
By demonstrating great skill and dignity as a jurist, O’Connor helped to shatter the glass ceiling for women in the legal profession. I recall that my 1964 law school class at Northwestern Law School in Chicago started with 168 students, only 8 of whom were women. Now, law schools across the country have a slight majority of female students. A world of job opportunities in the legal and judicial arenas have opened up for women, thanks to the path paved by Sandra Day O’Connor. May she rest in peace.