Book Excerpt: 'Supreme Conflict'


The anticlimax of a non-announcement that morning carried no small amount of apprehension and unease for conservatives and liberals alike. Amid the swirling rumors of retirement and change, conservatives were facing an uncomfortable reality: the Rehnquist Court, with seven justices appointed by Republican presidents, had become a legal and ideological disappointment. Time after time, these justices had refused to sweep aside the landmark liberal rulings of earlier Supreme Courts. In case after case, the justices frustrated conservatives by avoiding clear resolutions of the most controversial issues of constitutional law. Liberals may have seen a Court that put a Republican in the White House, but on the volatile and often emotional issues of abortion, affirmative action, capital punishment, and religion, conservatives were left gasping, often falling just short of their goals. Justices who were advertised and marketed as conservatives turned out to be anything but. Victories at the polls seemed to have no meaning when it came to influencing the direction of the Court.

Despite anticipation of a historic retirement, there was unspoken anxiety on both sides about whether George W. Bush would be able to seize the opportunity for fundamental change. Drama over possible retirements was ratcheted up as conservatives and liberals sensed the moment for changing the Court's direction might again be at hand. Who knew when another such opportunity might come to pass? If Bush had his moment, would he succeed where others -- including his own father -- had failed?

That morning, change was in the air. But of all the people who had gathered in the courtroom, of all the justices and officials and lawyers and former clerks, only O'Connor and Rehnquist knew how much. Bush would get his chance.

What would happen next would, after a protracted and sometimes bizarre series of steps and missteps, after strokes of strategic brilliance and acts of folly at the highest levels, produce a profound and lasting alteration to the Supreme Court. The Court that had functioned as a unit for more than a decade, unaltered since the seating of Justice Stephen Breyer in 1994, would be transformed by the departures of these veteran judges, Rehnquist and O'Connor, these old friends from the West. It would be a titanic conflict, one that would turn old allies into enemies, damage reputations, and open bitter wounds, and when the smoke of battle finally lifted, one of the most fateful shifts in the country's judicial landscape in a generation would be a fait accompli, with repercussions as yet unimagined.

1. Day's End

Sandra Day O'Connor was not a woman who sat still. She had grown up under big skies, surrounded by miles of open land, and she liked to get out and see things. In the fall of 2004, she readily agreed to travel to Ottawa with her old friend and colleague Bill Rehnquist to meet with judges on Canada's Supreme Court. Rehnquist invited another justice, Tony Kennedy, and together the group flew there in mid-October.

Rehnquist and his colleagues had just kicked off a new Supreme Court term that had reached a significant milestone. Over its history, the Court has welcomed a new justice on an average of about every two years. Rehnquist's current Court had worked together for a decade, the longest period nine justices had ever served together without a change in membership.

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