Sisters in Law (23 page)

But when institutions such as state colleges started seeking to overcome that legacy with programs like affirmative action, a robust and self-righteous resistance arose almost overnight. Preference based on race? For shame! Affirmative action had everything a resistance movement could ask for. The programs, at places such as the University of California medical school, disadvantaged smart white men; the first plaintiff, Allan Bakke, looked just like the political and cultural opinion makers of the day. At the other end of the spectrum, the workplace programs disadvantaged white working-class males, the prime target of the Nixon political strategy, later the so-called Reagan Democrats. Think tanks to challenge affirmative action sprang up like mushrooms.

The first cases—and almost all of the cases for the next three decades—focused on race. Bakke challenged the University of California's consideration of race in higher education, and a steelworker named Weber challenged a joint employer-union training program designed to put more black people in skilled craft jobs. The affirmative action cases badly splintered the Court, with Powell and Stewart swinging back and forth between supporting and opposing it. There was never a majority to embrace affirmative action wholeheartedly as a way of rectifying the past or reshaping the future. But neither was there a majority to condemn it wholeheartedly as a violation of white men's civil rights. The justices parsed the issues so finely—had the employer actually committed past violations; was the employer public or private; was the affirmative action in hiring or firing—that no case ever gave guidance for future decisions. The first affirmative action case,
Bakke
, did not command a majority for any one opinion. It was decided, technically, 4–1–4. What a mess.

Five years into O'Connor's tenure, the first women's affirmative action case,
Johnson v. Santa Clara Transportation Authority
, came before the Court. The Transportation Authority had adopted an affirmative action plan allowing sex to be considered as a factor in promotion; shortly thereafter, it promoted the first woman in its history to the position of head dispatcher, lowering the ratio of men to women in that job category from 238:0 to 237:1. Johnson, a man who had scored two points higher than the woman promoted on the graded interview, filed a lawsuit, claiming the affirmative action was actually reverse discrimination, in violation of the Civil Rights Act.

Affirmative action was always something of a problem for legal feminism. Ginsburg's great victories often challenged schemes that seemed to benefit women such as giving them preference for survivor's benefits or creating a tax break for widows. But Ginsburg was pretty clear that affirmative action, like all law governing women, had to be seen in context. Over history, all that good, beneficial stuff such as putting a cap on the maximum hours women could work and excusing them from jury service just kept women in a
cage. When women were shut out from good jobs, including the job of citizenship, and expected to be caregivers, safe drivers, and worse, stereotyped as inferior, they were not benefiting from the so-called benefits. Her objective was to open the gates.

Where, however, the effect of affirmative action was not to seal women into old models of virtue and dependency, but to open new worlds, she was quite willing to contemplate its virtues. Especially if the affirmative action followed a long period when the employer, for example, engaged in practices that covertly excluded women. A particular bête noire of hers was the oral interview, exactly what kept the woman down in the Johnson case.

When the justices voted in
Johnson
, the liberal bloc of four—Brennan, Marshall, Blackmun, and Stevens—had attracted O'Connor and Powell to approve the affirmative action. Now that Rehnquist rather than Burger was chief, he voted honestly with the minority and therefore forfeited his power to assign the opinion. Brennan, the liberal senior justice in the majority, assigned it to himself.

O'Connor and Powell each mattered to Brennan. He very much wanted a robust six-vote majority in this hotly contested area and to avoid a raft of hair-splitting opinions again. Worst case, the two were often enough in agreement that if one split off, the other might endanger Brennan's majority.

Once Brennan circulated his draft opinion, it became clear that of the two, O'Connor was going to be his main concern. She wanted to allow employers to adopt affirmative action only as a remedy for past behavior so bad it amounted to a violation of the Civil Rights Act. In this case, she asked herself, before the Transportation Authority adopted affirmative action, could a woman have sued it on the grounds that only sex discrimination could account for the
total
absence of a single female among the 238 skilled workers? Indeed she could have, the justice thought, perhaps remembering the all-male law firms that had rejected her so robustly in the years before there was a Civil Rights Act on the books at all.

Brennan really did not want to require employers to confess to prior civil rights violations in order to defend a voluntary
affirmative action program. What company would ever admit that? Brennan gave Powell the trivial changes he was demanding in the opinion and cut O'Connor loose. The majority simply required that the employer be trying to rectify a “manifest imbalance” in the workplace. O'Connor filed a separate opinion setting up her demanding standard for defending affirmative action: “the employer must have had a firm basis for believing that remedial action was required. An employer would have such a firm basis if it can point to a statistical disparity sufficient to support a
prima facie
claim under Title VII by the employee beneficiaries of the affirmative action plan of a pattern or practice claim of discrimination.”

With Powell providing Brennan with his fifth vote, O'Connor's opinion in
Johnson
was technically a mere warning. Soon after the decision in
Johnson
, however
,
Powell left the Court. As most of the liberals left the Court in the ensuing years, the standard for affirmative action got harder and harder to meet, and O'Connor had a piece of tightening the noose. Although she provided the crucial fifth vote to keep affirmative action alive in her last years on the Court, she then retired.

She was not a robust voice for social change. The best outcome for women would have been if the Court had made decisions that incentivized private actors to help change the world, rather than women constantly having to sue them to enforce the equality norms the Court set out. Her concurring opinion on affirmative action, like her opinion on liability in the sexual harassment cases, excused employers from responsibility for making social change. Being forbidden to remedy the historically sex-segregated workplace with affirmative action unless the segregation was something illegal they had actively done, most employers would shun any affirmative efforts to bring women in lest they have to admit they had previously been violating the Civil Rights Act. Without strict liability for sexual harassment, employers would be little motivated to establish programs to train their workforce not to act out on the job.

In the sexual harassment arena, the Court eventually moved beyond O'Connor's tightfisted opinions, making it easier for women
to tag the employer with liability for sexual harassment. But until that time, years later, women would have to keep fighting for every inch of progress, case by case, and with their bosses as their adversaries, in the trench warfare of social-change litigation.

As long as O'Connor held the swing, however, the justices never prohibited affirmative action outright. Even if the legal doctrine was incoherent, thousands if not millions of women and racial minorities got jobs and educations, which would never have happened if the Court had struck down affirmative action as reverse discrimination per se.

LIFE IS GOOD

On June 26, 1987, Lewis Powell retired. President Reagan replaced him with the California federal appeals court judge Anthony Kennedy, who looked to be a lot more conservative than Powell was. The change altered the composition of the Court and O'Connor's role within it. Often, as in the recent affirmative action case, she and Powell and White made up the pool of potential votes for the liberal side. After Powell left, with Brennan, Marshall, Blackmun, and Stevens on her left and Rehnquist, Scalia, Kennedy, and White mostly to the right, a lot more of the courting from both sides focused on her alone.

She had by then established a very functional routine for running her little law firm of one justice and four clerks. As the cases came into the Court, she assigned one of the clerks to write a preliminary memo, called a “bench” memo, on how she should decide. But instead of handling each case with only the assigned helper, she had all the preliminary memos circulated to all the clerks. The Saturday before oral argument weeks, all the clerks would gather in chambers and talk about all the cases that were to be argued that week. Justice O'Connor brought one of her southwestern specialties for lunch, and they had a freewheeling discussion.

One of her clerks, the son of a working mother, thought the lunch business was weird. His mother rarely cooked. Why was the most important woman in the world making them lunch? Others responded with gratitude for her “maternal” acts of kindness. Writing a tribute after she retired, her 1985–86 clerk John Setear said they had by far the nicest, friendliest workplace in the entire
Supreme Court, a veritable matriarchy of courtesy and interest in the clerks' personal lives. Of course, there were always those who didn't like Mom's food. “Ugh, spicy chili,” Setear remembers. “I'm a Midwesterner and I don't like spicy food.”

Being an O'Connor clerk involved adopting a clutch of her cultural practices. Like many westerners, the O'Connors came to D.C. with a long tradition of amateur entertainment—themed parties, gag costume photographs on Christmas cards. The practice found a home in the hypercompetitive atmosphere of Supreme Court clerking. An innocent episode of a carved pumpkin in chambers one Halloween soon led to a contest for the most elaborate jack-o'-lantern, culminating in one clerk roping in an artist friend to set the curve. In 1986, the clerks put on a gag skit parodying the entire
Wizard of Oz
. The next year, they hijacked a copy of the video the Court showed to tourists and remade it for the reunion, replacing the serious presentation of the arrival of the mass of petitions for review with a version of the last scene from
Raiders of the Lost Ark
. Her female clerks soon learned that the early morning aerobics class was a command performance.

O'Connor had a well-established reputation for hiring clerks of diverse political views. When she was interviewing the liberal Joan Greco, her third clerk to come up from then–Judge Ginsburg's chambers in the D.C. Circuit, she asked Greco how she liked clerking for Ginsburg. “Oh, I love it,” Greco gushed, lured into inattention by O'Connor's legendary skill at putting people at ease. “It's so great to work for someone whose opinions you always totally agree with.” In the ensuing silence, Greco came to her senses. “Oh
no
,” she reflected. “What have I just
said
?” “Well,” Justice O'Connor responded, “how would you feel about working for someone whose positions you don't agree with?” “Why,” Greco gushed, “that would be great, too.” And O'Connor offered her the coveted job on the spot.

With Powell gone, O'Connor was ready to move into a position of serious influence. Life was good. Energetic and robust as always, she arranged athletic outings for her clerks, where she was often the toughest competitor among a crowd half her age.

A term after Powell retired, Guy Braibant, head of the highest administrative court in France, hosted a visit from American jurists in July. Justice O'Connor led the delegation, which included the appeals court judges Ginsburg, whom she had already met, and Stephen Breyer, from the First Circuit in Boston. It was clear who was top dog. During the trip, Justice O'Connor would describe the “general structure of [the American] court system,” and Judge Ginsburg would comment on her remarks. True to form, on their first day in Paris, the energetic Justice O'Connor arranged a morning walk to the Picasso Museum for the group. In her travel diary, an adorable little volume with a picture of a hot air balloon on the cover, Ginsburg reports, “O'Connor read map, none too well, so it was an hour+, but very pleasant stroll as beautiful day.” It must have been a merry trip; Ginsburg's diary records flower-filled hotel rooms, gifts of Hermès scarves and medals, champagne and meals (“mussels especially excellent”), including an “elegant lunch” at the Constitutional Court and a duck dinner at Versailles. After dinner at the legendary Paris restaurant Lapérouse, Ginsburg notes, “just say OUI!!”

UNTIL IT'S NOT

But sober news lay in store for O'Connor when she got back. In October 1988, the robust and energetic fifty-eight-year-old justice got the report so many women dread: breast cancer. When she first heard the news in a routine medical exam, she could not believe it. She was in the middle of a very busy term and told her doctors cancer would have to wait while she heard several more rounds of oral argument. The doctors dissented. So her first lesson was “everything had to stop.” Worse, she had “so many decisions to make.” She had always thought the doctors would just tell you what to do. And she did have on her team probably the premier cancer doctor in Washington, Mark Lippman, then the chairman of the department at Georgetown and an internationally renowned breast cancer researcher. Her disease had progressed too far to avoid mastectomy. Indeed, after the surgery, she had to undergo radiation
and chemotherapy, the most aggressive treatments. The doctors did not agree on everything, which made it all the more difficult.

In 1994, six years after her diagnosis, she told her story to a breast cancer survivors' gathering, a speech sent out to the world on TV. Perhaps for the first time, this most decisive of women recalled, she had had trouble making decisions. She remembers even having trouble digesting the information. It was so emotional a time. So she did what she did at the Court. She did as much research as it was possible to do and then she made her decisions. “I don't look back and I don't say, ‘Oh, what if I had done another thing?'” And she tried something new, too—relying on other people. “It helped me,” she recalled, “to have a close friend who had been through it,” not once but twice. Indeed, the justice found it “amazing how many people wrote letters” or came up to her to reassure her that they had had it too and that her life would go on. One day, after the surgery, it got so bad that she called her friend at home and asked her to come to the hospital, and “she dropped everything and came down and we shed a tear or two together and we talked about everything and somehow that helped.”

“Depressing” and “traumatic,” as she described it in a letter to Powell, even cancer did not turn the decisive no-nonsense O'Connor into a sensitive New Ager. When the support people at the hospital advised her to “visualize” her recovery, she recalled later, she balked. “I'm not a visual person. I'm a practical person.” So she made a chart on her calendar with all the chemotherapy appointments, and checked them off: “first one, got through it. When does the hair start to fall,” she asked herself. “Second one, check.” She was surprised by how distressing her physical losses were. Again surprised by the kindness of relative strangers, her hairdresser “turned out” to be “one of the kindest most marvelous men” she ever met. And she just sucked it up. When she saw how her condition was distressing her family, she told herself she'd better shape up. “Put a better face on things,” she resolved. “Don't distress other people.” It's only cancer.

As she retold it later, the “best thing was” that she “had a job to go to.” Tired and stressed out as she was, “I had a job that was
important and was always there for me to do so I just went down to my office and kept working, I never missed a day at the court, I never missed a conference, and I wonder how people who don't have a job do.”

In 2013, when Justice Ginsburg was asked to speak about her colleague, then long retired from the bench, she singled out O'Connor's 1994 cancer survivor speech as one of the most important legacies of her tenure. “Her account,” Ginsburg noted, “gave women afflicted with that trying disease hope, the courage to continue, to do as she did.” It is indeed impressive to see the video of Supreme Court justice O'Connor, this most dignified and self-sufficient woman, with a somber mien, her voice perceptibly shaking and eyes occasionally tearing up, telling her story to the survivors. When Marty had cancer all those years ago, legal work had given Justice Ginsburg some security, knowing she could support herself and her baby daughter. When Justice O'Connor was stricken herself, meaningful work gave her purpose, focus, and distraction.

A JOB TO DO

And so she continued to help women have access to that lifeline. On October 31, 1988, five days after she left the hospital, and despite press speculation to the contrary, she sat down to a full day of oral argument.

Ann Hopkins's challenge to her rejection for partnership at the accounting giant Price Waterhouse was the fourth and final matter of that long, hard first day back. Hopkins, a senior manager and the only female partnership candidate of the forty-plus people in line, had first been held over for a year for reconsideration and then rejected. No one disputed that she had been a very effective manager, landing a huge contract with the State Department in the run-up to her first partnership year. The crucial piece of evidence against Price Waterhouse in a warehouse full of damning admissions came from the man who bore responsibility for explaining to Hopkins the reasons for the decision. In order to improve her
chances for partnership after the first delay, he advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” It's hard to blame this gentleman entirely for the hilariously sexist advice, as he was looking at reports from partners that she was “macho,” she “overcompensated for being a woman,” she should take “a course at charm school,” and she swore a lot. One of her supporters even wrote in a supposedly favorable evaluation that she “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr [partnership] candidate.”

In previous years, other female candidates for partnership also had been evaluated in sex-based terms. As the trial record reflected, candidates at Price Waterhouse were viewed favorably if “partners believed they maintained their femin[in]ity while becoming effective professional managers.” A partner who could not consider any woman seriously as a partnership candidate even had his vote recorded in the overall summary of the evaluations.

Price Waterhouse did what it could to ameliorate the damage. It contended that Hopkins was rejected because she could not get along with her coworkers. Maybe they said things that looked bad, the firm argued, but they had a completely independent reason for rejecting her, and that should be enough. Again, the Court was confronted with a major social policy matter masquerading as a procedural problem. Firing someone for having a bad attitude does not violate the Civil Rights Act. Firing her for not being feminine enough does. Such disputes are called “mixed motive” cases.

The lower courts had found for Hopkins, ruling that once Hopkins proved the existence of discrimination, the employer had to show “clear and convincing” evidence that it would have fired her anyway, a standard much higher than the normal preponderance of the evidence required for most proof. On appeal, even Hopkins's lawyer didn't defend his having required such a powerful showing from the employer. He was just hoping to eke out an opinion that, after the plaintiff showed the employer behaving badly, the employer had to do something to justify its conduct.
Price Waterhouse, of course, was seeking a ruling that the
plaintiff
had to prove not just discrimination but that the decision would have been different if the employer had not discriminated. It was a very important “procedural” decision. Employers almost always present some alternative reason for firing someone. So who has the burden of proving which motive actually generated the rejection is game, set, and match in discrimination litigation.

From where Hopkins sat, “Justice O'Connor's eyes stared through deep grey rings on a ghostly white, stoically expressionless face. In spite of a mastectomy ten days earlier, she was on the bench.” Not only on the bench, but, three minutes into the accounting firm's argument, she was asking its lawyer, Kathryn Oberly, the crucial question. When there's evidence for both sides, who owns the tie? The employer's lawyer invoked a classic procedural answer: the person who brings the lawsuit always bears the burden of proving her case. At equipoise, the defendant wins. O'Connor jumped in immediately. If the rejected woman proves the employer did something bad, maybe that shifts the burden. Maybe the employer then has to prove
something.
No, the lawyer answers, it's the plaintiff's burden to “move the ball over the fifty yard line.” No, says O'Connor, there is language in other cases that “it's enough to show that the discriminatory reason was a substantial factor.” As Oberly resists her, she persists: “Are you saying the comments are irrelevant?” O'Connor asks incredulously. “It's discrimination in the air,” Oberly answers. “But it did not touch the plaintiff.”