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As usual, U.S. Supreme Court Justice Sandra Day O’Connor was the first justice to pose a question during an oral argument. It was early this spring, and at issue was the constitutionality of limiting visits to prison inmates. “Does the right to association while in prison survive in some form, do you think?” she asked Michigan Solicitor General Thomas Casey, who was defending the regulations at issue in Overton v. Bazzetta. The right to a relationship survives, Casey suggested, but not necessarily any right to activities that further a relationship — such as visitation. Before O’Connor could follow up, the discussion took another turn. But Justice Ruth Bader Ginsburg chimed in a few minutes later, asking Casey to “back up to where you were when you were responding to Justice O’Connor’s question.” Ginsburg asked him directly, “Do I take it that your position is . . . there is absolutely no right to any visitation?” When Casey replied yes, O’Connor leaned forward and interjected acidly, “Do you have a fallback position from that, and if so, what is it?” It was a rare but striking example of the O’Connor-Ginsburg one-two punch, in which one of the court’s two female justices makes sure an advocate does not slip away from the questioning of the other. As Ginsburg nears her 10th anniversary on the nation’s highest court — and O’Connor closes in on her 22nd — the relationship between the court’s first and only two female justices has settled into one of easy and comfortable mutual help and solidarity. They may not be the closest of friends, and their opinions often diverge. But they speak warmly of each other and have many shared experiences — from surviving cancer to facing gender discrimination to a fondness for classical music. Most of all, they are glad to have each other on the court. “It was a happy day indeed when she was confirmed to join our court,” O’Connor wrote of Ginsburg in her new book, “The Majesty of the Law.” Before Ginsburg arrived on the court, O’Connor found herself constantly in the spotlight as the court’s first woman justice. But once there were two instead of one, O’Connor said in a recent interview on National Public Radio, “we were fungible justices all of a sudden, treated just like the others. It was a relief to me.” For her part, Ginsburg has said in speeches and other public forums that O’Connor was “like a big sister” during Ginsburg’s early time on the court. O’Connor, Ginsburg notes, had known Chief Justice William H. Rehnquist since their Stanford Law School days, and “she told me many things that made my life easier that first year.” In many ways, the women are an unlikely pair. O’Connor grew up on a ranch in Arizona, at times going without electricity or running water. When she was inducted into the National Cowgirl Hall of Fame in 2002, she said she was proud to be the first woman on the high court, but added, “it will be even better when we get the second cowgirl on the Supreme Court.” To say the least, Ginsburg, who grew up in Brooklyn, N.Y., does not qualify for that distinction. Ginsburg, 70, was a longtime women’s rights advocate before becoming a judge, while O’Connor, 73, was an Arizona politician who thrived within male-dominated institutions. O’Connor is gregarious and can work a crowd with the best of them. Ginsburg can be painfully shy and barely audible in social settings, at times coming across as uninterested in the people around her. Similar Styles But Deborah Merritt, who clerked for Ginsburg and O’Connor, says that the two justices actually have similar styles. “They are both very articulate and very direct,” says Merritt, a law professor at Ohio State University who directs its John Glenn Institute for Public Service and Public Policy. “Justice Ginsburg is more shy, but not in speaking about the law. I’m not sure, if you saw a transcript of what they said on similar occasions, that you could tell which justice was speaking.” In her earlier days as a law professor, Merritt was part of a group of academics who studied whether women members of the bench judged differently than men. But from her research and her familiarity with O’Connor and Ginsburg, Merritt concludes, “I don’t think there are systematic differences in the way women judge.” The discrimination O’Connor and Ginsburg faced when they were breaking into the field more than 40 years ago certainly is an important part of their backgrounds, Merritt says, but it does not necessarily correlate with voting patterns. Vanderbilt University law professor Suzanna Sherry has a different take on the question, noting that O’Connor’s votes on gender-related civil liberties and privacy issues have been “more favorable than you otherwise would expect,” given her conservative outlook on most other issues — a difference that could be explained in part by gender. O’Connor joined the majority in Planned Parenthood v. Casey, which rescued the right to abortions, and in Stenberg v. Carhart, which struck down a law that banned so-called partial-birth abortions. In Davis v. Monroe County Board of Education, O’Connor wrote the 5-4 majority opinion, ruling that pervasive, unpunished, student-on-student sexual harassment in public schools was a Title IX violation. “Consider, for example, a case in which male students physically threaten their female peers every day, successfully preventing the female students from using a particular school resource – an athletic field or a computer lab, for instance . . . ,” O’Connor wrote. “The district’s knowing refusal to take any action in response to such behavior would fly in the face of Title IX’s core principles. . . .” When Ginsburg in 1996 announced the groundbreaking 7-1 decision in United States v. Virginia, finding that it was unconstitutional to exclude women from the state-funded Virginia Military Institute, she gave a dramatic nod toward O’Connor, who had authored Mississippi University for Women v. Hogan. That 1982 ruling said men could not be excluded from a state-funded nursing school. The vote then was 5-4. But O’Connor parted company with Ginsburg in United States v. Morrison, joining in the majority’s view that the Violence Against Women Act was unconstitutional. Her solidarity with the court’s conservative wing on issues of federalism and congressional overreaching outweighed whatever sympathy she had for victims of gender violence. Florida International University College of Law professor Thomas Baker thinks that the doctrinal space between O’Connor, the former President Ronald Reagan appointee, and Ginsburg, the former President Bill Clinton appointee, is smaller than it first appears. “The conventional wisdom is that Justice O’Connor is to the right of Justice Ginsburg,” Baker says. “But they are both centrists. The distance between them is small, compared to the distance between [former Justice Felix] Frankfurter and [former Justice William O.] Douglas or [former Justice John Marshall] Harlan and [former Justice Hugo] Black.” Overall, in their time on the court together, Ginsburg and O’Connor have agreed with each other on the results of cases roughly 75 percent of the time. (Last term, O’Connor voted most often with Justice Anthony Kennedy, 83 percent of the time, while Ginsburg concurred with Justice Stephen Breyer and Justice David Souter at a 94 percent rate.) I Am Woman With tiresome regularity, questioners ask Ginsburg and O’Connor whether “being a woman makes a difference.” O’Connor is skeptical; in her new book, she disputes Sherry’s conclusions in a 1986 law review article that she, O’Connor, takes a distinctly feminine approach to judging: “I would guess that my colleagues on the court would be as surprised as I am by these conclusions.” Ginsburg is equally dubious. “At least in the law, I have found no natural superiority or deficiency in either sex,” she said in 1994. “I have detected no reliable indicator of distinctly male or surely female thinking — or even penmanship.” On the speaking circuit, Ginsburg and O’Connor have settled on the same answer to the question. They quote Jeanne Coyne, a former Minnesota Supreme Court justice, who once said, “A wise old woman and a wise old man reach the same conclusion.” They may reach the same conclusions as men, but at important moments they probe issues in ways that their male colleagues typically do not. Often they raise family-oriented concerns during oral argument. During the prison visitation case earlier this year, O’Connor said, “If you’re going to release somebody back into society, you don’t want to cut off all contact with family members or friends who might help that person on release, do you?” And in the 1997 oral arguments in the so-called right-to-die cases of Vacco v. Quill and Washington v. Glucksberg, O’Connor said at one point, “This is an issue every one of us faces, young and old, male and female.” Ginsburg added, “Most of us have parents and other loved ones who have been through the dying process, and we’ve thought about these things.” Inside the court, the two also have taken on issues that would not have made the to-do lists of their male colleagues. Soon after Ginsburg joined the court, she and O’Connor became aware that the ladies’ restroom available to the public at the court did not open until 9 a.m., later than the men’s room. That was an inconvenience to female visitors who got in line early to get seats in high-profile cases. The team of Ginsburg and O’Connor got it remedied swiftly. “The women’s restroom, I have good reason to believe, will never again close while the men’s room remains open,” Ginsburg said triumphantly in a 1996 speech. When Ginsburg underwent treatment for colon cancer in 1999, O’Connor was a helpful friend, say some observers. O’Connor had had her own bout with breast cancer more than a decade earlier, and both found hard work was the best therapy for getting through the treatment. Neither missed an oral argument. “They are there for each other, even if they don’t spend New Year’s Eve together,” says one court insider: Ginsburg and her husband, Martin, celebrate with the Scalias; O’Connor and husband, John, tend to go out with larger groups. On the bench, when the two justices do disagree, it is not with rancor. Their decorum was established from the very start. One of the big misconceptions about the court is that freshman justices are given an easy case to write as their first opinion. But Ginsburg’s maiden decision in the 1993 term divided the court 6-3 – and O’Connor joined the dissent. Ginsburg recalls that after she read a summary of her opinion from the bench, a messenger handed her a note from O’Connor: “This is your first opinion for the court. It is a fine opinion. I look forward to many more.” Tony Mauro is U.S. Supreme Court correspondent for Legal Times. This article originally appeared in the June issue of The American Lawyer as part of a special report on women and the law. Legal Times and The American Lawyer are Texas Lawyer affiliates.

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