Lessons from Working for Sandra Day O'Connor
Syverud, Kent D., Stanford Law Review
Justice O'Connor doesn't like footnotes in her opinions. That was a bracing lesson for a young lawyer fresh from a law review where a legion of footnotes, packed with authorities and afterthoughts, marched halfway up almost every page. Holding my first memo, she started right in on teaching: "If you have something to say, just say it. Don't weasel around down in the brush." There would be many other straightforward lessons from a year working for Sandra Day O'Connor, but the most important were about decisiveness, theory, inclusivity, and religion.
Making Decisions. In my first month on the job, the Supreme Court wrestled with a difficult capital case. Justice O'Connor and my co-clerk worked late into the night on an emergency petition, and by a close vote the petition was denied. There was an execution after midnight. The next morning, Justice O'Connor was in the office early and was cheerful. She told me of her "fabulous" plans for an event later that day. ("Fabulous" is Justice O'Connor's most-often-used word.) Her cheerfulness that day seemed callous, and I confronted her about it. Even from a distance I had been torn up about both the substance and procedure of the decision, so how could she get over it so quickly? She wasn't "over it," she told me. She had been torn up too, but she had done the best job she could. The time to worry about a decision, she said, is before it is made. You work, read, and listen as hard as you can, and then when you have to decide--and no earlier--you choose. If you do that, your judgment is a good one, even if your decision later turns out to be mistaken, because you made sure it was the best you could do under the circumstances. Moreover, if you agonize over past decisions, you neglect the present ones, and judges always have many other people--and life-and-death decisions--waiting. Justice O'Connor taught that lawyers ought to go at a job full tilt, do the best job possible, and then move on.
Theory. Justice O'Connor's decisiveness rarely embraces deciding more than she has to. Over the years, she has infuriated many law professors by the narrowness of some of her opinions, and by her resistance to any new theory until its implications were tested out through the facts of a series of cases. She is a common law judge in an increasingly polarized and ideological age. In chambers, Justice O'Connor always wanted to know the facts of each case in excruciating detail. She wanted to know who the litigants were and why they behaved the way they did. She wanted to read every word of the trial judge's opinion, because that judge saw the witnesses and watched the jury. She wanted to know why the grand issue raised by the parties needed to be decided by the Court if the facts called for some simpler and narrower solution. Clerks had to scramble to master the record, and often an overlooked fact or argument became vital to the Justice's views.
It took me years to fully appreciate how important this was to our country. The Supreme Court can be a great pulpit for a Justice, a place for moving rhetoric that will be recounted in newspapers and blogs and taught in countless classrooms. It can be a place for sarcasm, for belittling humor, for uplifting phrases, for clear, grand theories that cut through the complicated maze of facts and circumstances that make up our country. For Justice O'Connor, this was all mostly beside the point, and her clerks knew it. In her fundamentally humble view, the Supreme Court is a court whose job is to decide cases on their messy facts.
Lots of folks appreciated this pragmatic common law approach by the time Justice O'Connor retired. Some appreciated it mostly because the alternative seemed worse: a judge who decides the narrow issue before her based on the particular facts of the case was attractive when the alternative may have been a judge whose theories you do not share. But for many like me in the country, confronting deeply uncivil and ideologically polarized politics in every branch of government, Justice O'Connor's approach to judging was attractive regardless of political persuasion. …