Episode 15: Beyond the Headlines: The Supreme Confidence of O'Connor & Ginsburg

Before diving into today's complex headlines and the swirling debates of social media, let's take a HerStance back to the foundational principles of our government – guided by two women who defied the odds. This episode explores the remarkable journeys of Sandra Day O'Connor and Ruth Bader Ginsburg, the first and second women appointed to the Supreme Court. 

Despite their wildly different backgrounds, both possessed an unyielding self-confidence, a profound belief in their own capabilities, and a fierce refusal to be deemed inferior by the men around them. 

We'll trace O'Connor's steady, often subtle, path to incremental social change and Ginsburg's more expansive vision of the Constitution as a dynamic, living document of American inclusivity. 

Discover how these "sisters in law," though diverging in their approach, were united in their pursuit of justice for women. 

Join us as we uncover their inspiring legacies and encourage you to read the Constitution for yourself, gaining a crucial new perspective on how our government functions in a world they could never have envisioned. 

For an interactive resource to engage with the US Constitution and landmark cases of the US Supreme Court, visit https://www.annenbergclassroom.org/constitution/

Music provided by All Good Folks "Something Greater"

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Transcript

Supreme Court orders Maine House to restore vote of GOP lawmaker who ID-ed trans teen athlete online

Supreme Court allows Trump to strip legal protections from 350,000 Venezuelans who risk deportation

Trump asks Supreme Court to allow him to end humanitarian parole for 500,000 people from 4 countries

Supreme Court allows Trump ban on transgender members of the military to take effect, for now

These are a handful of top US Supreme Court headlines this month, May 2025.

When the Constitution of the United States was written, our forefathers would never have even heard the term “transgender” , could not have imagined ‘online’ communications and all of those implications, and a global economy meant no taxation without representation touted in drawings of English tea being thrown into the Boston Harbor.

You see, the Supreme Court was created by the Constitutional Convention of 1787 as the head of a federal court system, though it was not formally established until Congress passed the Judiciary Act in 1789.

The opinions of the Supreme Court, including the dissenting opinions of individual justices, often have been considered epitomes of legal reasoning.

But through these opinions, the court serves to clarify, refine, and test the philosophical ideals written into the Constitution and to translate them into working principles for a federal union under law. Beyond its specific contributions, this symbolic and pragmatic function may be regarded as the most significant role of the court.

Size matters, when it comes to the SCOTUS. Again, it is CONGRESS that decides.  It started with 7, was 8 for a while, but has been 9 since 1869. In the 1930s President Franklin D. Roosevelt asked Congress to consider legislation that would have allowed the president to appoint an additional justice for each member of the court aged 70 years or older who refused to retire.  This ‘court-packing plan’ was voted down.

Today’s Supreme Court is made up of 4 women, 2 of which are women of color. 5 men, 1 of which is a person of color.  The average age of the Court is 64 years old.  

The oldest Justice is 76, and that would be Clarence Thomas, the African American confirmed to the bench in 1991 (33 years ago) despite the claims of sexual harassment against Anita Hill, an African American colleague. Don’t get me started on that media circus and divisive period in our history. Way before the Me Too movement.

Have we come very far? 

Well, that’s why I do this podcast and why we are witnessing the THIRD wave of feminism, right? The work continues.

All of this is leading up to my featured luminary women today.

Let me introduce you to the 1st and 2nd women appointed to the Supreme Court, respectively: Sandra Day O’Connor and Ruth Bader Ginsburg, also affectionately known as RBG.

While relatively the same age, O’Connor born in 1930 and Ginsburg in 1933, their backgrounds and paths to the SCOTUS look very different. And yet, as “sisters in law” they were great colleagues and supported each other and the causes for women’s rights in equal share. 

Let’s get into the deets.

Sandra Day was born into a family of Arizona ranchers. She was no stranger to hard work. All ‘manpower’ was useful and every woman had a role to play.

She attended Stanford University for both undergraduate and Law School in the 50s. She was one of a few women seen on campus in those days.

In contrast, RBG was born in a Jewish family in Brooklyn, NY. Her father was a Russian immigrant with no formal education except Hebrew school. She was witnessing a liberal revival movement in the big city and young people were striving for self-fulfillment.

She graduated 1st in her class from Cornell University at 21. Married her husband the same year, and quickly they started their family. THEN she went off to Harvard Law School, as did her husband.  Harvard was not a welcoming environment for women. There were 4 other women in the program. The Dean of the Law School actually asked each of those women to justify themselves for taking up the place of a man that would otherwise have been there.

She transferred to Columbia Law School and graduated from there.

Both of these young women had amazing self confidence - and believed they were ‘entitled to run the show, and acted as if they were equal to the powerful men in their world. They both took offense when men told them they were inferior.  

Things didn’t get easier after Law School for either of them. 

O’connor was rejected by 40 law firms, not even granting her interviews because she was a woman.   (One firm offered her a job as a secretary.)  She actually took a job for NO PAY. Then, when her husband became an attorney for the US Army Judge Advocate General Corps – JAG)  in Germany, she served as a civil attorney for the Army from ‘54 - 57.

In the 60’s and 70’s she served as a state senator (and the first woman in the US to occupy the majority leader position), and had her first judgeship in Maricopa County’s Superior Court in 1974.

President Ronald Reagan (a republican) nominated her for the US Supreme Court in 1981.

RBG found it just as hard to navigate a career after Law School. She had three strikes against her. She was a woman, a mother and she was Jewish. 

So she went the teaching route.  She took a job as a law professor at Rutgers Law School. She then spent the 1970s with the American Civil Liberties Union Women’s Rights Project where she fought for gender equality in front of the Supreme Court.   In 1980 she became a judge with the US Circuit Court of Appeals. 

In the late 80’s she met both Hillary and then President Bill Clinton at an event and impressed them both. This led to her Supreme Court nomination by Bill Clinton, a democrat in 1993.

Regardless of which party your appointment came from, the Supreme Court was never meant to be political.

Sandra Day O’Connor and Ruth Bader Ginsberg were colleagues and often allies. They served together for 12 years.

They did take very different approaches, however.

O’Connor was described as a ‘very cheerful energetic ‘westerner’.  She never complained, never asked for special treatment. She is quoted as saying:  Unfortunately, civility is hard to codify or legislate, but you know it when you see it. It’s possible to disagree without being disagreeable.

Whereas RBG was already an activist having had years with the ACLU. She knew politics. If she didn’t get what she wanted from the Court, she appealed to Congress, or used the media for public opinion.

Her sentiment was “Fight for things that you care about, but do it in a way that will lead others to join you.”

So what did these women do for us? What is their legacy?

O’Connor was often known as a ‘swing’ justice. This means that she was in the ideological center, who may align with either her more conservative or more liberal colleagues to provide the key vote in closely divided cases.   After her retirement, Justice Anthony Kennedy held that distinction. Today, Justice John Roberts appears to be the ‘swing justice’.

In a series of rulings, O’Connor signaled a reluctance to support any decision that would deny women the right to choose a safe and legal abortion. 

Case in point, in 1989, because she sided with the more ‘liberal’ view in Webster v Reproductive Health Services, —in which the Court upheld a Missouri law that prohibited public employees from performing or assisting in abortions not necessary to save a woman’s life and that required doctors to determine the viability of a fetus if it was at least 20 weeks old—she reduced the Court’s opinion to a plurality. 

Through her stewardship in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court reshaped its position on the right to abortion. 

The Court’s opinion, which O’Connor wrote with Justices Anthony Kennedy and David Souter, reaffirmed the constitutionally protected right to abortion established in Roe v. Wade in 1973,  but also lowered the standard that legal restrictions on abortion must meet in order to pass constitutional muster. 

After Casey, such laws would be considered unconstitutional only if they created an “undue burden” on women seeking to obtain an abortion.

Also, importantly, in 1982, she played a key role in  Hogan v Mississippi, which prohibited Mississippi from segregating the sexes in the state’s public nursing schools.

Bader Ginsberg was also a force. Because of her work on US vs Virginia Military Institute, June 1996, women are now accepted into the VMI.   The case had originally been assigned to O’Connor. But she actually refused it because she knew that Ginsberg had labored as a Supreme Court Lawyer at the ACLU in the 70s to get the Court to call women ‘equal’.  O’Connor felt it was Ginsberg’s case.  In her opinion, Ginsberg actually cited the 1982 Hogan v Mississippi opinion by O’Connor.

These two women opined on 88 cases over their 12 years serving together, on topics ranging from criminal procedure to civil rights, to judicial power.

Not all were earth shattering. But all important to keep our constitution relevant and tested for the times.

O’Connor thought that social change should occur slowly, so she limited the scope of her opinions to the facts of the case. She wasn’t threatening to the ‘establishment’ while also almost always deciding in favor of the female plaintiff.

Ginsberg saw her America as an expanding country of inclusiveness. She could see the Constitution as a living document and a living manifestation of that American experiment. According to the book “Sisters in Law” by Linda Hirshman, after O’connor retired, the conservative court turned their backs on women’s rights and Ginsberg became the icon of resistance to the backlash with her fiery dissents.

Sandra Day O’Connor retired in 2006, and she died in 2023. 

Ruth Bader Ginsberg never left the bench. She stayed until her death in 2021, never giving up the fight.

The fights must continue. Not just for women’s rights, but for human rights. And not just for our country’s constitutional rights, but for global compassion, global equity, global dignity, and even for online civility.

There is a current case being considered. Tiktok Inc v Garland (2025). It notes that this case “involves new technologies with transformative capabilities.” and that “As Justice Frankfurter advised 80 years ago in considering the application of established legal rules to the ‘totally new problems’ raised by the airplane and radio, we should take care not to ‘embarrass the future.’” Northwest Airlines, Inc v Minnesota, 1944.

Never before has RBG’s idea of a living constitution been more tested.

Well, you’ve made it to the HerStance Challenge

Maybe you can guess it … Get to know our Constitution.

I’m going to provide the resource for you in the show notes:

Civics knowledge surveys conducted by the Annenberg Public Policy Center show that Americans lack a basic understanding of the Constitution and how our system of governance works. 

So they have provided an interactive guide for us to learn all about it.

https://www.annenbergclassroom.org/constitution/

This site provides the original text and an explanation of the meaning of each article and amendment.

Visit this site and learn about one of our nation’s founding documents and the establishment of the federal government.  

You’ll also find landmark Supreme Court cases on the site too. By clickinbg on the link “Supreme Court Cases” you’ll see Right at the top – A conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O’Connor: Brown v Board of Education the landmark case that ended racial segregation in schools!

My hope is that with all of this new information at your fingertips, you will have a new perspective to bring to the Nation’s headlines and social media’s conversations. 

May the voices of Sandra Day O’Connor and Ruth Bader Ginsberg ring loud and clear for you as we carry on the fight they started.

Thanks for listening to HerStance.

Please share a comment, like and share!

Check out Linda Hirshman’s biography of these two women “Sisters in Law”.

This program has been written, hosted and produced by me, Sandra Koelle.

Until next time! Thanks for taking Her Stance!