Justice Sandra Day O’Connor’s new book, The Majesty of the Law, appears at a particularly auspicious moment. As the swing vote on and author of Grutter v. Bollinger, the Supreme Court’s 5-to-4 decision in June upholding the University of Michigan Law School’s affirmative action program, she has shaped the future of minority education in America’s universities for years to come. Also, she is the first female Justice. The book is thus a timely statement by a powerful judge at a time when the judiciary has more power than ever. The situation is also rife with irony. Ever since Ronald Reagan, Republicans have fiercely opposed affirmative action programs for racial minorities and women. They have shed tears over the harm to self-esteem that the beneficiaries of these programs have supposedly suffered, expressed grave concerns over the tensions that affirmative action has fomented between blacks and whites, and denigrated diversity and all the other justifications put forth for these programs.
All that is conveniently forgotten, however, when a little affirmative action will bring a lot of political profit. The most prominent uses of affirmative action in the past twenty-five years were actually by Republicans: the nominations of O’Connor by Reagan and of Clarence Thomas by George H.W. Bush. On any gender- or color-blind list, neither would have appeared. Thomas was an undistinguished federal appellate judge in Washington, and an unimpressive chairman of the Equal Employment Opportunity Commission; O’Connor was an obscure midlevel Arizona state judge and former state legislator with no outstanding reputation among Arizona lawyers. She herself has acknowledged to NPR reporter Nina Totenberg that she was the beneficiary of affirmative action.
Like so many other affirmative-action candidates given an opportunity to show what they can do, Justice O’Connor has proved her merit, becoming an able and important jurist. Now, two decades after her appointment, she has written a book that, she says, is “the result of more than twenty years of thinking about and speaking about some of the major themes in our national history and the principal challenges facing our world today.”
A book by a Supreme Court Justice with so grand a title and that claims to be the product of so much experience and thought should be an important event. One expects insights, reflections, insider discussions of problems and anecdotes about this powerful institution, especially about what it has been like for the first woman to enter the previously all-male sanctum sanctorum of American law.
O’Connor’s book will, alas, be a disappointment to anyone looking to learn something about the Supreme Court that is not already common knowledge. The chapters are short and barely skim the surface. Part 1, on “Life on the Court,” contains little that is new or interesting, except for a chapter on an early fight among those who collected and published the Court’s decisions. The second and third parts consist of some historical vignettes and of profiles of six earlier Justices, including praise for Chief Justices William Howard Taft and Warren Burger for improving the efficiency of the federal court system. Subsequent chapters deal with women and the law, lawyers and courts, and the rule of law in the twenty-first century. There are a few interesting historical vignettes, tributes to some of her predecessors and some sensible ideas about juries and the need for judges to consider what is happening elsewhere in the world. Perhaps not surprisingly, there is nothing about Bush v. Gore (2000), the harsh reaction to which by many lawyers is said to have shocked her. The book catches fire only once, and that is when she discusses women’s issues. Her inability to find a job other than as a legal secretary when she graduated near the top of her Stanford Law School class in 1952 still rankles; she has often talked about it elsewhere, and she mentions it at least twice in the book.