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Op-Ed

Flirting with justice

Thirty years ago, Sandra Day O'Connor made history by becoming the first female justice on the Supreme Court — and opened doors for wise women everywhere.

September 25, 2011|By Meg Waite Clayton

O'Connor's first major Supreme Court opinion, in Mississippi University for Women vs. Hogan, began the process of changing the law of gender discrimination, allowing a man admission to a women's nursing college because to do otherwise "lends credibility to the old view that women, not men, should become nurses." She was the swing vote in Price Waterhouse vs. Hopkins, finding discrimination had been "a substantial factor" in a decision not to promote a woman to partnership, and in Jackson vs. Birmingham Board of Education, allowing a whistle-blower to sue for retaliation in gender-discrimination circumstances. Her vote in Davis vs. Monroe allowed a girl who'd been subjected to relentless sexual taunts by a classmate to sue the school for allowing a hostile environment to go unchecked.

The truth is that wise men and wise women do sometimes reach different conclusions: Jennifer L. Peresie, writing in the Yale Law Journal, found that women claiming sexual harassment or gender discrimination were twice as likely to prevail when a female judge was included on the bench, an effect independent of judicial ideology.

Despite O'Connor's record on gender rights, though, she by no means always pleased women's rights advocates, much less liberals as a whole. Her swing votes allowed substantial limitations on abortion rights, affirmative action and gun control, and her vote in Bush vs. Gore gave George W. Bush the presidency. She disappointed conservatives too, and not only with respect to gender discrimination. She limited school prayer, expanded gay rights and allowed campaign finance reform. O'Connor was a woman who voted her conscience.

Women in prominent roles matter for what they achieve substantively, that different wisdom Peresie found. They serve as models for younger women trying to succeed in a world that still struggles with gender issues. And seeing other women achieve allows us to believe that we too might be talented and, armed with that belief, to push through the obstacles and reach for our dreams.

In nudging the Supreme Court doors open, O'Connor made way for Justices Ginsburg, Sonia Sotomayor and Elena Kagan, and even for the possibility of nine wise women, and one woman who will finally be considered wise enough to be elected president. In her holdings themselves, and in her holding against expectation to her own sense of the law, Sandra Day O'Connor demonstrated that the time to give up traditional notions of gender roles had come. This one wise judge set everyone on notice that women were no longer merely to be flirted with, if we ever were.

Meg Waite Clayton is the author of three novels, most recently "The Four Ms. Bradwells." She practiced merger and acquisition law at an L.A. firm.

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