Sandra Day O’Connor, the first female justice of the U.S. Supreme Court, turns 80 years old next year.
But even in her lifetime, she told a Harvard audience last week (June 5), there has been a “revolution” regarding the issue of women as practitioners of American law.
O’Connor — chipper, funny, and precise — spoke at a luncheon sponsored annually by the Radcliffe Institute for Advanced Study, which awarded the former justice its Radcliffe Medal.
She joined a stellar cast of previous honorees: Donna Shalala last year, Toni Morrison the year before, and, in years past, the likes of Madeleine K. Albright, Lena Horne, Katharine Graham, Margaret Atwood, Elizabeth Dole, and Janet Reno.
Radcliffe Dean Barbara J. Grosz praised O’Connor’s American West virtues, “honesty, discipline, and good humor.” She also said the veteran jurist is the first Radcliffe Medalist to be a member of the Cowgirl Hall of Fame.
Grosz also noted, with admiration, O’Connor’s “non-retirement” since 2006 — busy promoting three issues: judicial independence (hard to create, easy to destroy); early public education in civics (O’Connor is behind the new Internet education site www.ourcourts.org); and the relevance of international law in American jurisprudence.
O’Connor — silver-haired and slim in a violet jacket and black slacks — delivered a brief history of women in American law.
She started with present statistics: Women comprise 50 percent of law students and 45 percent of law firm associates. But only 20 percent of judges are women, along with 16 percent of law firm equity partners, and –— this got a laugh — 11 percent of Supreme Court justices.
To date, women have achieved parity in the legal profession, but only at entry-level positions, said O’Connor. The more power a job has, the fewer women are likely to be in it.
Still, “it’s been an amazing century for us,” she said. “It was not that long ago that the only relevant statistic regarding women in the legal profession was zero percent — as in zero associates, zero equity partners, and zero judges.”
As for not long ago: O’Connor told her own story. Fresh out of Stanford Law School in 1952, and ranked near the top of her class, she had trouble landing an interview with a law firm — much less a job.
When she did get an interview, her interviewer asked, “Now, Miss Day, how well can you type?”
Impediments like this led her to a career in public service, perhaps happily — because of the experience, said O’Connor. (She went on, in Arizona, to serve in all three branches of state government.)
Her first job, in 1952, was as a county attorney — for no money and with a desk next to the secretary.
Decades before, “early women legal pioneers faced a cult of domesticity,” said O’Connor — the notion that women were unsuited to the hurly-burly of the law.
“They were compassionate, whereas lawyers had to be ruthless,” she said. “They were gentle, where lawyers had to be forceful. Women were pure, when lawyers had to be morally flexible.” (Laugh line.)
“The view that women could not cut it as lawyers enjoyed an embarrassingly long shelf life in our United States,” said O’Connor.
She related the case of Myra Bradwell, who in 1869 applied to be admitted to the Illinois bar. Turned down, she appealed all the way to the Supreme Court — and lost there, too, in 1873.
O’Connor recalled that Greta Coleman ’15 and Elizabeth Beale ’15, two Radcliffe suffragists, lobbied in 1914 for the college to add legal studies. By the next year, there was a Cambridge Law School for Women, a national first. It only lasted two years, said O’Connor, but was an inspiration.
By 1920, women had gained the right to vote. And by 1922, the nation saw its first female state Supreme Court justice, in Ohio: Florence E. Allen. (Her advice to a friend: “Never forget, nor remember, that you are a woman.”)
In 1934, Allen became the first female federal judge. She wrote “good opinions,” said O’Connor, “rather than women’s opinions.”
Allen was later turned down by both Franklin Roosevelt and Harry Truman for U.S. Supreme Court consideration — for reasons, O’Connor said, that signaled the enduring power of “the cult of domesticity.”
But starting with Reed v. Reed in 1971, an equal protection case that reached the Supreme Court, gender barriers started falling fast.
Losing its shine, said O’Connor, was “the myth of the true woman” — or what Justice William J. Brennan Jr. in 1972 called “romantic paternalism.” Such concepts, he said — as O’Connor quoted, put women “not on a pedestal, but in a cage.”
But just as the courts and Congress were turning away from gender-based classifications, the same kind of myths were getting revisited, said O’Connor — writers questioning “whether women are different merely by virtue of being women.”
In the legal arena, such inquiry suggests that women lawyers (including O’Connor herself, according to one writer) would rather mediate than litigate, for instance.
“I fear that kind of calls back the old mess we struggled to put behind us,” and revives old stereotypes, said O’Connor.
“This new feminism is certainly interesting,” she said. “But it troubles me because it so nearly echoes the Victorian myth of the ‘true woman’ that kept women out of the action for so long.”