On December 1st of last year, Sandra Day O’Connor passed away at the age of 93. She was the first female U.S. Supreme Court Justice, serving for 25 years. Because of her impact on women in the legal landscape, we are devoting some space to her on the blog this week. 

Early Career & Supreme Court Appointment

O’Connor grew up on a ranch near El Paso, TX. She brought the independent, down-to-earth spirit of her roots into her work as an attorney, senator, and justice. She attended Stanford Law School and graduated in the top 10 percent of her class – but struggled to find work as an attorney because of her gender. To get her first foothold at a law firm in San Mateo, CA, she initially offered to work for free.

O’Connor gained prominence as Assistant Attorney General of Arizona and in the Arizona Senate before being appointed to the Arizona State Court of Appeals in the 1970s. In 1981, President Ronald Reagan nominated her to the U.S. Supreme Court when Justice Potter Stewart retired.

Though she leaned conservative, O’Connor was known for being pragmatic and precise in her research and rulings. As the Supreme Court tipped to the right over the decades, she became more moderate to balance things out.

Important Cases

Because of her adaptive moderate status, O’Connor often served as a pivotal swing vote in important decisions. Here are some of her notable opinions in her 25 years:

• County of Allegheny v. ACLU (1989): “…[e]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.” This case weighed on displays of religious sentiment on government property as violations of the First Amendment. The court basically said: “It depends.”
• Planned Parenthood v. Casey (1992): “After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed…” O’Connor was part of the joint controlling opinion affirming Roe v. Wade, which went against typical conservative pro-life standpoints.
• Bush v. Gore (2000): O’Connor joined in denying the request for a Florida recount, essentially grounding the final outcome of this presidential election. Reactions to this decision were controversial.
• Grutter v. Bollinger (2003): This case upheld affirmative action rules at the University of Michigan Law School. She concurred that the policy did not violate the 14th Amendment and that it supported “a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
• Lawrence v. Texas (2003):  “A law branding one class of persons as criminals solely based on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause.” This case concluded that criminalizing consensual homosexual acts went against the Due Process Clause and was an unnecessary government intrusion into the lives of private citizens.

O’Connor’s Intellectual Property Contributions

O’Connor weighed in on several important 20th century copyright cases, and her opinions helped form the underpinnings of a constitutionally-based copyright law.

In Feist v. Rural Telephone, the Rural Telephone company tried to claim copyright on its telephone directory, citing the “sweat and brow” doctrine, which asserts that copyright is a reward for the work of collecting facts.

O’Connor’s opinion rejected the “sweat and brow” doctrine and re-focused copyright law on creativity and authorship. She emphasized that, according to the Constitution, copyright exists “to promote the progress of Science and useful Arts.” This means that creative usage of fact merits copyright, but the facts themselves need to be left open as building blocks with which innovators can experiment.

Another pivotal IP case on which O’Connor opined was Sony v. Universal. This case dealt with consumers using Sony’s Betamax machines to record live TV programs to watch later, not for resale. O’Connor’s swing vote absolved Sony of liability for this noninfringing use. This decision allowed for the development of plentiful technology that enables users to make copies – computers, DVRs, iPods – to this day. 

Other notable IP cases on which O’Connor left her mark:

• Harper & Row v. Nation Enterprises – the court denied application of the fair use doctrine to a verbatim quote from then-President Ford’s memoir. O’Connor kept the ruling from going so far as to ban paraphrasing from memoirs and autobiographies, leaving some utility room for journalists and historians.

• New York Times v. Tasini  – O’Connor recommended that Justice Ginsberg edit a major sentence in her opinion, as she foresaw its misinterpretation as misuse as a highly quotable statement. Ginsberg agreed.

A Legacy of Equality in Law

All in all, O’Connor made a stand for women as equal practitioners of law. She did so in a practical, no-nonsense way, and she backed up her stance with well-researched, grounded, and nuanced opinions. I am proud to follow in her footsteps as an attorney, and I am grateful for her contributions to intellectual property law.