Sandra Day O'Connor and Gender Influenced Jurisprudence

In 1980 Ronald Reagan made a campaign promise to appoint a woman to the Supreme Court. On August 19, 1981 he fulfilled his promise and nominated Sandra Day O'Connor without any congressional opposition (Cushman 249). Feminists and Republicans viewed this appointment as a victory for their causes. Feminists believed that a woman on the court would support the feminist agenda because she was a woman, and could understand gender discrimination and issues such as the right to abortion differently from the male justices. Conservatives believed that a Republican woman on the court would support the conservative agenda because she believed in the conservative ideology, and could understand the importance of morals. Each side expected the first woman on the Supreme Court to advance their agenda, and they criticized O'Connor when she did not meet their expectations (Cushman 250). O'Connor was criticized for not following a distinctly feminist or conservative jurisprudence. Instead she had her own unique jurisprudence which epitomized moderation. This was influenced by her conservative political affiliation and her gender. The conflicts between the conservative and feminist aspects of her identity have often made her the moderate and swing voter on many important cases, especially those which dealt with abortion rights and restrictions.

In order to understand the influence of Sandra Day O'Connor's gender on her jurisprudence, it is essential to look at female psychological theories. According to Carol Gilligan, in In a Different Voice, women are psychologically different than men, and because of that they bring a "different point of view to the lifecycle" (22). Gilligan believes basic psychological differences are innate and they revolve around the "recognition of relationships," "preservation of relationships," and the "belief in communication as the mode of conflict resolution" (29). This differs from men who generally feel that relationships can easily be replaced and do not emphasize communication. Thus Gilligan stresses that since women are psychologically different than men, it is only natural they would have a different understanding of morals and judgement (22). By following Gilligan's theory that women understand morals and judgment differently, it would be natural to expect that Sandra Day O'Connor would add a different voice to the Supreme Court. Her voice is different because trends in her case decisions show evidence of female psychological qualities, and this is naturally different from her male colleagues. Through out her stay on the bench, O'Connor's decisions have shown trends of trying to maintain relationships, this can especially be seen in case decisions and in the way journalists write about her.

Newspaper articles written about O'Connor show a general recognition of gender and how it has influenced her to recognizes relationships between opposing views, and moderate in order to find a common ground. One journalist, Jeffrey Rosen wrote an article for The New York Times, entitled "A Majority of One." In this article Rosen describes how O'Connor controls the court because she is frequently the 5-4 swing vote that decides the outcome of cases. Additionally he argues that since she is the swing voter, she is essentially the court's moderator. Rosen believes that "O'Connor viewed it as her mandate to reign in the conservative extremists and she was independently-minded enough to break ranks with her party on issues she cared about" (4). This shows how even though O'Connor identified herself with the Republican party, she did not always agree with them, especially on issues that closely relate to her gender, such as abortion. This also shows how O'Connor was not afraid to position herself against conservatives in order to moderate extreme agendas to find a common ground. Finding a common ground was an important aspect of O'Connor's jurisprudence, because according to Rosen, it "allows her to remain not only the center of the court but also at the center of America's politics" (2). He believes that O'Connor has been more perceptive of public opinion and the public's general preference for moderation over extremes. This highlights the characteristics of female gender influences because she recognized the relationships between the court and the public, and additionally she moderated the court's decisions in order to maintain that delicate relationship. As the court's moderator, O'Connor clearly had an important role that was shaped by the influence of her gender, and Rosen was not the only journalist to pick up it.

In addition to Jeffrey Rosen, other journalists wrote about O'Connor's position as moderator of the Supreme Court. Another journalist, Thomas Evan, wrote about O'Connor's importance as a centrist a week after she announced her plan to retire. Evan wrote a cover story for Newsweek entitled "Queen of the Center." This is one of the first pieces to be written about O'Connor's legacy on the court, and it was a legacy that focused on her position as the court's centrist. Evans described O'Connor as a "deep believer in the sensible center, in humane compromise, in finding ways to defuse quarrels and sand down bitter edges" (1). This shows how O'Connor's gender naturally affected her jurisprudence because she focused on compromise and finding a center in order to avoid fights and preserve relationships. This also helps explain why O'Connor as a conservative and as a woman would rely on moderation in order to negotiate between the two opposing views. Evan, like Rosen, also addressed the issue of O'Connor's jurisprudence and how it relates to public opinion. He claims "O'Connor is essentially a centrist, she is hardly insensitive to public opinion, and usually looks for a way to make her decisions palatable to the public at large" (4). By relating Rosen's belief back to Gilligan's theory, it shows how O'Connor's was influenced by her gender to recognize a relationship between the court and public opinion, and preserve it by finding a common ground. Both Rosen and Evan address how O'Connor was the moderator of the court, and because they both mention how her decisions were essentially compromises the public favored, shows how her decisions worked in order to preserve relationships. Compromise and relationships are characteristics emphasized by Gilligan's theory, and even though it is clear that O'Connor was at least partially influenced by her gender, some critics say that gender did not affect the way she decided on cases at all.

One advocate who claims gender has no influence on O'Connor's jurisprudence, is O'Connor herself. In Majesty of the Law: Reflections of a Supreme Court Justice, O'Connor mentions the question of if gender has influenced her judgment. She states "I am often asked whether women judges speak with a different voice... there is simply no empirical evidence that gender differences lead to discernible differences in rendering judgment" (190-191). O'Connor's answer shows how she underestimates her influence on the court by not accrediting her gender to how she was able to decide cases differently from her male colleagues. However, it may also be a possibility that O'Connor is hesitant to accredit her gender to influencing her jurisprudence because it might spark criticism from conservatives who might then use that to turn down the nomination of another woman to the Supreme Court. Nevertheless, even though there is no empirical evidence that female judges judge differently then male judges because of their gender, there is a strong correlation. The correlation lies within how her judgments compromise opposing views, recognize relationships, and preserve relationships, all of which are elements of Gilligan's theory of what makes a woman different. Even though O'Connor refuses to recognize gender differences, she did make another gender related comment in her book, "my intuition and my experience persuade me that having women on the bench, and in other positions of prominence, is extremely important" (189). This reflection is important to recognize, because it is important to have more women in government. However the reason more women in government are needed is because they speak with a different voice. Women are more likely than men to moderate extreme agendas, and by that logic women are more likely to create moderate policies that reflect public opinion rather than the opinions of the extreme political elite. Obviously there are some exceptions to this, since some men are moderates; however Gilligan's theory stresses the correlation that women are more likely to compromise and recognize relationships than men.

The differences between men and women, and how gender influences jurisprudence could not be clearer than when looking at specific abortion cases. When looking at O'Connor's abortion decisions, the conflicts between the gender and conservative aspects of her identity can be seen. O'Connor's gender aspect is influential because she would sometimes uphold abortion rights, which can be seen in the case of Webster v. Reproductive Health Services. Additionally O'Connor's conservative aspect is just as influential because she would sometimes vote in favor of abortion restrictions, which can be seen in the case of Akron v. Akron Center for Reproductive Health. Joan Biskupic details these, and other abortion decisions in a biography called Sandra Day O'Connor. Biskupic covered O'Connor's decisions on abortion, and how they sometimes sided with her liberal colleagues and sometimes sided with her conservative colleagues. From studying Biskupic's detailed coverage of these respective abortion cases it can be seen that the way O'Connor would swing was decided by her own patented "undue burden" test (151). Additionally Biskupic makes it a point to stress that O'Connor was always seeking for a compromise and a middle ground, which she tried to achieve by applying the "undue burden" test, which was described in her Akron v. Akron Center for Reproductive Health court decision (150). The way O'Connor voted in each abortion cases suggests that she was influenced by her gender while legally thinking.

Around the tenth anniversary of Roe v. Wade, the court agreed to hear an abortion case, and O'Connor found herself in the middle of the controversy. The case of Akron v. Akron Center for Reproductive Health came before the court in O'Connor's second term, Biskupic feels that O'Connor knew "the religious right was watching her, as were women's groups" because it was one of the first abortion cases she would decide (147). With respect to the Akron case, O'Connor voted with her conservative colleagues to uphold a state statute that would restrict abortion (Biskupic 151). The state statute the court wanted to uphold was an Ohio statute that required doctors to lecture abortion-seeking women that life begins at conception, it also required a twenty-four hour waiting period between the lecture and the procedure, and a brief hospital stay after the abortion (Biskupic 146). O'Connor felt this statute could be upheld because it was a regulation that she deemed was not "unduly burdensome" for a women to seek an abortion with the respective regulation in place (Biskupic 151). The statute did not prevent abortion, which O'Connor thought would appease feminists, and the fact that doctors could still tell women that life begins at conception appeased the conservatives who wrote that statute. O'Connor thus used this abortion case to reach a compromise between the two opposing views. Most feminists were infuriated because they expected O'Connor to strike down any abortion regulation (Ibid). Biskupic also notes some women's groups "continued to be split in their assessments of whether she advanced their cause" (154). They felt this way because they recognized that her conservative political ideology could have caused her to advocate strongly for a reversal of Roe, and they were pleased that O'Connor showed no sign of doing so.

Two years after Akron, women's groups were relieved, and conservatives infuriated with respect to the case Webster v. Reproductive Health Services, when O'Connor voted with her liberal colleagues and provided the swing vote that upheld Roe v. Wade (Biskupic 231). This was the first case that came before the Supreme Court that could have reversed Roe, and its fate was held in the hands of the first woman on the bench. Biskupic calls it a "coincidence of history" that the court "faced pressure to reexamine Roe at a time when the crucial swing vote belonged to the first justice to have given birth" (218). As the swing voter, O'Connor ultimately held the fate of the abortion controversy in her hands, and the nation was waiting to see what she would decide. O'Connor used her distinct jurisprudence to tailor carefully an opinion for this case; she knew conservatives would be furious, but Biskupic notes that she knew that the majority of the public opinion did not want a reversal of Roe (231). Thus O'Connor tried to compromise. O'Connor knew she could not reverse the case without breaking a relationship with the majority of the public, so in order to balance out her upholding Roe, she compromised by reminding conservative of all the other abortion regulations she upheld in previous abortion cases. Difficulties lie within trying to compromise on such a highly charged issue, especially when there is such strong political pressure from her conservative colleagues demanding a reversal vote. O'Connor however, still managed to balance favoring abortion rights and favoring abortion restrictions in order to find a common ground, even in face of harsh criticism.

Feminist and conservative critics found O'Connor's perceived ambivalent abortion position to be unsettling. This is not an uncommon critique, since the public would often wonder which way O'Connor would swing on a given abortion case. However O'Connor was anything but ambivalent about the abortion controversy, she simply tried to compromise between women's interests and conservative interests. According to Biskupic, O'Connor accomplished this by creating her own standard, the "undue burden" test (151). O'Connor devised her own "undue burden" test when she wrote her opinion for the Akron case. Under this test, O'Connor outlined that she believed abortion regulations should be upheld as long as it is not "unduly burdensome on a woman's ability to seek an abortion (Ibid). Also, if a regulation places an "undue burden" on the right to choose an abortion, then it would be subject to scrutiny (Biskupic 152). Critics like The New York Times journalist Rosen, consider this test to be vague language employed by O'Connor to simply give herself "lots of discretion to decide, from case to case, whether or not she considered a particular abortion restriction permissible" (5). When Rosen and other women's rights advocates denounce the "undue burden" test as vague, they fail to see its inherent benefits. O'Connor's "undue burden" test does give her a lot of discretion, but this discretion is beneficial since it ensures that regulations that place a burden on the right to seek an abortion are overturned. It also ensures that there will be no reversal of Roe while O'Connor possesses the swing vote. These benefits derive from O'Connor's desire to compromise between women's interests and conservative interests. Such a strong emphasis on compromise is a woman's psychological quality, and many scholars have directly addressed the impact gender has had on Sandra Day O'Connor's decisions.

In an argument relative to my own Susan Behumiak-Long strongly believes gender has impacted and defined O'Connor's way of legal thinking. She believes "O'Connor's impact as a female is derived from the fact that she is promulgating a very specific jurisprudence-that of the feminine" (417). Behumiak-Long wrote "Justice Sandra Day O'Connor and the Power of Maternal Legal Thinking" for The Review of Politics, in her scholarly article she addresses feminine jurisprudence, which she claims is extremely different from feminist jurisprudence. According to Behumiak-Long, O'Connor possesses a jurisprudence which is feminine rather than feminist, which means O'Connor favors a more moderate way of legal thinking over the extreme (440). Feminine jurisprudence originates from the female gender, thus O'Connor is impacted by her gender. O'Connor's jurisprudence revolves around three issues that Behumiak-Long deems feminine, "concreteness over abstraction, responsibilities over rights, and the recasting of legal questions," all of which play "a role in O'Connor's concurrences...introducing a feminine voice to the court's debate" (437). Behumiak-Long derives these three feminine aspects from Gilligan's theory that women have a psychological desire to compromise. Concreteness considers the facts of every case rather than abstract ideologies, responsibilities stresses balance between opposing views, and recasting of legal questions stresses resolutions that try to make both sides happy (427). Since feminine jurisprudence reflects the basic concept of compromise, which is seen in Gilligan's theory, it is clear how O'Connor was influenced by her gender in abortion cases. This is because O'Connor used elements of feminine jurisprudence to compromise in each abortion case in order to find a common ground.

According to Behumiak-Long, O'Connor's ability to use feminine jurisprudence to seek compromises in her decisions is important to the court because it works to the advantage of the American public. This is true because She states "O'Connor's feminine jurisprudence may be deleterious to feminists" and "it may also undermine conservatives... in subverting each cause she pulls each side toward the center" (442). Evidence of this can be seen when O'Connor responded to a question about her abortion philosophy during her Senate confirmation hearings. O'Connor's response was that "issues that come before the Court should be resolved based on the facts of that particular case...they should not be based on the personal views and ideology of the judge" (Historic Document). With that response, O'Connor let conservatives and feminists know that she would not be guided by a conservative or feminist jurisprudence. Thus she gave herself a lot of room to decide on abortion cases, which allows for moderation between the two sides. Behumiak-Long feels by pulling opposing sides to the center, O'Connor bridges opinions and moderates the extreme political elites (444). When O'Connor tries to find a common ground for opposing sides, she ensures that she does not advance an extreme agenda. This has been seen repeatedly in her abortion decisions, where she moderates by sometimes voting in favor of abortion regulations, and sometimes voting in favor of abortion rights. Moderation is in and of itself a compromise made to preserve the relationship between opposing sides, and reflect public opinion. Moderation is also the political safeguard against radical political changes. If O'Connor did not moderate Roe could have easily been overturned and that would have been a radical change critics like Biskupic do not believe the public will accept (232).

It is to America's favor that Sandra Day O'Connor served as the first female Supreme Court Justice. She profoundly impacted the bench by offering a woman's voice to constitutional interpretation for the first time in United States History. O'Connor's voice was derived from her unique jurisprudence which was influenced by her conservative political affiliation, but predominantly by her gender. With this gender influenced way of legal thinking, O'Connor introduced a moderate voice to a court whose male justices almost always voted based on party partisanship. She was not a staunch Republican, and she was not a staunch feminist, because of this O'Connor was influenced by her gender to be moderate. A most notable aspect of her decisions is the desire to compromise on the highly charged issue of abortion in order to preserve the relationships between conservatives and feminists. Her jurisprudence has been extremely influential to the court because her decisions often reflect public opinion over the opinion of political elites. This is where gender interpretations of legal thinking become controversial in the political world, because justices are not supposed to care about what the masses want. However since women's studies is a relatively new field to academia, it is important to analyze and recognize the inherent differences between men and women as detailed in Gilligan's theory, and how they apply to the political arena. Some may find that they do not believe that gender can play a role in legal thinking, including O'Connor, who does not believe that gender had anything to do with the way she interpreted the law. However, after exploring Gilligan's theory it is clear that gender influenced O'Connor's jurisprudence because it correlates to characteristics that are distinct to women-compromise and relationships.

Behuniak-Long. "Justice Sandra Day O'Connor and the Power of Maternal Legal Thinking." The Review of Politics. Vol. 54, No. 3, Summer 1992.
Biskupic, Joan. Sandra Day O'Connor. New York: Harper Perennial. 2005.
Cushman, Claire, ed. Supreme Court Decisions and Women's Rights. DC: The Supreme Court Historical Society Congressional Quarterly Inc. 2001
"First Woman Appointed to Supreme Court." Historic Documents of 1981. Washington: CQ Press.
Gilligan, Carol. In a Different Voice. 2nd ed. Cambridge: Harvard University Press, 1993
O'Connor, Sandra Day. Majesty of the Law. Westminster MD: Random House, 2003.
Rosen, Jeffrey. "A Majority of One." The New York Times. 3 Jun 2001.
Thomas, Evan. "Queen of the Center. (Cover Story)." Newsweek 2005: 24-31.