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A Feminist Folk Hero?

This column was written by Adele M. Stan.
The announcement of Sandra Day O'Connor's resignation from the Supreme Court heralds a dark road ahead for women -- not just because she will undoubtedly be replaced by some reactionary right-winger but because women will lose a genuine advocate and protector on the high court.

When, in 1981, Ronald Reagan introduced the nation to Sandra Day O'Connor, his first nominee to the Supreme Court, feminists looked on warily. It figured, we thought, that the increasingly anti-woman GOP would be the first to land a woman on the high court. Would she turn out to be a Margaret Thatcher -- an iron lady sent to do the right's bidding?

In fact, she turned out to be anything but, often foiling right-wing justices by joining the somewhat liberal wing in its decisions. It was O'Connor who consistently upheld the rights of women to labor free of sexual harassment in the workplace, joining the majority in the Court's precedent-setting 1986 decision Meritor Savings Bank v. Vinson, the case that established the principle of "the reasonable woman," which, whatever its legal weaknesses, at least affirmed the existence of such a creature. In subsequent sexual-harassment cases, O'Connor fiercely asserted that sexual harassment is a form of discrimination, and wrote the majority opinion in Harris v. Forklift Systems, the 1993 decision that made it easier for plaintiffs to make a sexual-harassment claim.

Yet O'Connor is hardly a feminist folk hero. If anything, she has functioned as the "yeah, but" justice -- willing to give her right-wing colleagues on the bench a good bit more than an inch, but usually stopping them far short of making the mile mark.

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On their merits, O'Connor's opinions appear to reflect a mind at odds with itself -- or, perhaps, to reflect the old sexist saw about a woman's prerogative. In the 1986 decision that upheld Georgia's sodomy law, O'Connor joined the majority. In the 2003 decision that struck down a similar law in Texas, O'Connor concurred with that outcome while refusing to join the majority in overturning the Court's previous decision in the Georgia case.

She sees herself as a fierce defender of the First Amendment's establishment clause, leading her to agree with the prohibition of a municipal display of a single Christmastime nativity crèche. However, she does not agree that religious expressions should be struck from the public square, as shown by her embrace of a government display that included symbols from several different religions -- including a crèche. While the principle therein may be clear to O'Connor, it has been less than obvious to those following the Court.

She has upheld affirmative-action programs while narrowing their scope, and forestalled the overturning of Roe v. Wade while granting the states significant powers to place certain obstacles in the way of that choice, including a 24-hour waiting period and parental notification requirements for minors. Yet her refusal to concur with a spousal-notification clause in a restrictive Pennsylvania law that her opinion helped to uphold saved women from that onerous precedent, writing that such a provision would give their husbands undue power over women.

However frustrating the figure of Justice O'Connor has been for feminists, she has been downright infuriating to the right wing. Until recently, there was no Supreme Court justice more loathed and more maligned on the right than O'Connor. She represents everything they abhor and fear: a fully empowered woman who often stops the boys from having their way. And as the Court's "swing vote," O'Connor's unpredictability and apparent lack of ideology have driven those angry fellows to distraction.

And therein lies an authentic, homegrown sort of feminist defiance in the legacy of the Supreme Court's first female justice. However inconsistent her opinions may appear on their face, a consistent theme runs throughout the contexts in which they were rendered: Sandra Day O'Connor has time and time again acted as a hedge on male hegemony. In the Constitution as originally written, women have virtually no rights -- and conservatives such as Justices Antonin Scalia and Clarence Thomas have made quite explicit their desire to return to the original Constitution. O'Connor's deep-rooted aversion to rigidity may be the single most important factor in the Constitution's survival as a living document in the late 20th and early 21st centuries. It remains to be seen whether that bulwark will prove O'Connor's legacy -- or only a temporary redoubt.

Adele M. Stan is the author of "Debating Sexual Correctness: Pornography, Sexual Harassment, Date Rape and the Politics of Sexual Equality," and the author of the blog

By Adele M. Stan
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved

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