Book Excerpt: 'Supreme Conflict'
Jan Crawford Greenburg's New Book Takes an Unprecedented Look Into the History of the Supreme Court
Jan. 22, 2007
In her new book, "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court," ABC News correspondent Jan Crawford Greenburg was allowed an unprecedented look at the highest court in the land, starting with the Rehnquist court and extending through the nominations of Samuel Alito and John Roberts. She also covers the failed nomination of White House counsel Harriet Miers, which she says Attorney General Alberto Gonzalez tried to hard to prevent. The following is an excerpt of that book.
The nine justices emerged from behind the red velvet curtains right on time, as always, at 10 a.m. They are never late or early, no matter how small or big the cases before them. They follow a routine dictated by custom and tradition.
About ten minutes beforehand, the associate justices donned their black robes in a paneled changing room just behind the courtroom and gathered next door in the oak-paneled conference room where they meet to discuss cases. The room is just outside the chief justice's chambers, and as always, he joined them already wearing his robe. Right before the appointed hour, they all shook hands. Then they walked single file behind their chief, in order of seniority, to wait behind those velvet curtains. As the Court's marshal announced "the honorable, the chief justice and the associate justices of the United States of America," an aide swept back the curtains, and the justices stepped into the room.
On this day, like all other days on the Court calendar, a hush preceded the marshal's announcement, as if the spectators in the surprisingly intimate marble courtroom suddenly and all at once noticed that it was time. But on this day, the hush seemed more profound, as if the crowd thought it could somehow will the justices into the courtroom a moment or two early. It was a big day, a historic day in the minds of many. All the seats were full, some with top government officials ushered in by Supreme Court police officers, others with people who had camped out overnight in the sticky heat of Washington in late June.
The justices stepped up to their long wooden bench in unison and pulled back their high-backed black leather chairs. The scene was carefully choreographed, but also well practiced. This group had worked together for eleven years. As the justices sat down in their seats, the people in the audience sat up straighter in theirs. Some leaned forward. Everyone, even the justices, looked at the gaunt man in the middle of the bench. It was the last time they expected to see Chief Justice William Rehnquist in that seat, controlling a court he'd led for nineteen years.
Rehnquist was eighty years old, and he was dying of cancer. Many in the courtroom on the last day of the 2004-5 term had come to see him announce the inevitable: He was retiring after thirty-three years on the Supreme Court. The White House had already begun interviewing possible replacements. Journalists had worked up lengthy stories about his legacy, to run when he made his announcement. Former law clerks had considered the remarks they would offer, if asked, about the chief 's curious mix of stern leadership and personal warmth. More than one planned to talk about how it was a testament to Rehnquist's willpower and love of the institution that he had managed to finish out the term despite the illness that had weakened him. He was not the kind to leave his ship midcourse; he had steered it home.
None of them truly knew just how sick Rehnquist was. The previous October, doctors had diagnosed him with anaplastic thyroid cancer, the most serious and aggressive form of thyroid cancer. They'd performed a tracheostomy, an operation to make a permanent opening in his throat so he could breathe and eat when the chemotherapy and radiation swelled it shut. Rehnquist did not disclose any details publicly, nor did he make public the grave prognosis his doctors had given him. A younger man, doctors told Rehnquist in the hospital after his diagnosis in October, would have less than a year to live. He'd have perhaps half that.
On that June morning, Rehnquist, who loved to put down a one dollar bet on almost anything -- the amount of snowfall, a football game, a congressional election -- had already beaten his odds.
The atmosphere in the courtroom grew tense as the Court turned to the last two cases of the term. Both dealt with whether the Ten Commandments could be displayed on public property. The question had generated enormous controversy across the nation. In Alabama, the state's chief justice had been kicked out of office when he refused to remove a large display from his courthouse. The justices had struggled mightily with these decisions before splitting the difference. They approved a Ten Commandments monument on the grounds of the Texas state capitol in part because it was displayed with dozens of other markers. But they ruled the display unconstitutional in a Kentucky courtroom, where it appeared to take center stage.
Rehnquist announced his opinion in the Texas case, and he struggled to provide even the briefest of summaries. Unable to eat because of his cancer, he'd become thin and stooped, and his skin appeared gray. His trademark booming baritone, which had silenced many a lawyer, sometimes in midsyllable, was gone. His voice now was weak and reedy from the tracheostomy. Rehnquist ticked off the names of the six other justices who'd also written opinions in that Ten Commandments case.
"I didn't know we had that many people on our Court," Rehnquist said slowly, his breathing labored. Then he smiled as he looked to the justices on his left and right, and the courtroom exploded in laughter. Rehnquist thanked the Court's staff for its work over the term. The audience grew completely still. The other justices peered intently at Rehnquist. This would be the time for the announcement. Rehnquist seemed to pause briefly. Then he banged down the gavel and carefully rose from his seat.
The other justices, looking confused, slowly began to follow. Only O'Connor seemed to have a sense of purpose. She turned and stepped beside her old chief, ready to help him if he needed her arm. Then the old chief shuffled back to his chambers, leaving all of Washington to wonder and wait.
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.
But as Rehnquist, O'Connor, and Kennedy left Washington, change seemed likely. The presidential election was weeks away. George W. Bush was fighting for his political life against a spirited challenge from Massachusetts senator John F. Kerry, with both the president and his challenger pointing to the closely divided Supreme Court to illustrate the campaign's high stakes. With two justices over eighty years of age and two others in their seventies, the next president could get one, two, or even three appointments. It seemed certain in those frantic final stages of the race that the winner of this election would shape the direction of the Court, and with it the country, for decades to come.
On a sunny fall Ottawa day, Rehnquist, O'Connor, and Kennedy spent their time meeting with their Canadian counterparts and touring some of the government buildings, including the Senate and House of Commons. After their official visits, O'Connor wanted to look around the picturesque capital. She was a woman in motion, and she liked to bring people along with her. Every year, O'Connor would take her law clerks on long outings around Washington's landmarks to make sure they didn't miss out, and she encouraged the women to join her aerobics class, which she had started at the Supreme Court just after her confirmation in 1981.
"Let's take a walk,"O'Connor suggested to Rehnquist and Kennedy. Kennedy, who joined the Court seven years after O'Connor, was game. But Rehnquist declined. He wasn't feeling well, he said. He had a cold he couldn't shake, some kind of respiratory thing. It had been going on for a while.
Later that day, Kennedy told his wife, Mary, that he thought Rehnquist was unwell. Rehnquist suspected it too. He'd been more tired than usual, and his throat was scratchy. His voice wasn't the same. When he returned home from his Canadian meetings, he went to Bethesda National Naval Medical Center for tests. On Friday, October 22, doctors gave him the news: thyroid cancer, maybe six months.
The next day Rehnquist had surgery to insert a tube in his throat. The Court downplayed the illness, releasing a terse statement the following Monday that Rehnquist had been diagnosed with thyroid cancer and had undergone surgery. Rehnquist, the Court said, expected to be back on the bench the following week.
With barely a week left before the presidential election, the announcement caused surprisingly little stir. Interest groups tried to make the Supreme Court a rallying point with voters. Reporters interviewed doctors who suggested that Rehnquist's days were numbered. But the Court disclosed nothing more, and the story soon died down. By Friday, news that Rehnquist had been released from the hospital barely merited a mention, since the Court continued to insist he was returning to work that Monday.
That claim would prove false. The chief justice's black leather chair, in the center of the Court's bench, would go empty for four months while Rehnquist underwent treatment to reduce the cancerous tumor. He didn't tell the justices about his prognosis, but some of his colleagues assumed he would never again sit beside them in court. Justice John Paul Stevens, the Court's most senior associate justice, took over for Rehnquist in the public sessions and ran the justices' private conferences, where they discuss cases and vote. Stevens even began to relax the terms of the Court's discussions, giving the lawyers and the justices more time to make their points than Rehnquist had allowed.
But Rehnquist, ever the tough old Lutheran, would swear in President Bush during a wintry inauguration ceremony, and he would be back in the courtroom by the end of March. His deep and resonant voice was forever changed, but he allowed no concessions to be made to his weakened condition. He sternly cut off lawyers when their time expired, almost as if he'd opened a trapdoor. He kept a tight rein on the conferences, just as he always had. But he was fading away, his clothes getting looser on his angular frame and his wristwatch dangling near his knuckles when his hands were at his sides.
After Rehnquist had returned to the courthouse and resumed more of his old duties, O'Connor went by her old friend's chamber to talk. Like everyone else, O'Connor thought he would be retiring at the end of the term, and she had reluctantly concluded that she should begin planning her own departure. John, her devoted husband of fifty-two years, was suffering from Alzheimer's disease, and he was becoming increasingly frail. She wouldn't be able to stay on the Court indefinitely, she confided to Rehnquist. "I might have to do this," O'Connor said.
But Rehnquist surprised O'Connor. Despite his obviously weakening condition, he hadn't looked that far ahead into his own future. "We don't need two vacancies," he said. "But let's just wait. Let's talk later." O'Connor and Rehnquist had been friends for more than fifty years, since their days together at Stanford Law School. They'd come from very different places -- he was the A student from Wisconsin who'd been an army weatherman; she was the Arizona cowgirl who roped and rode horses with the boys. But Rehnquist had a quick wit, and O'Connor loved a good joke, so the two socialized often. Since Stanford didn't have on-campus housing for women graduate students, O'Connor and other women students lived in a co-op apartment. Rehnquist and his friends would visit and help with dinner. Afterward, the group would play charades, a game Bill Rehnquist would enjoy his entire life, especially with his law clerks.
After law school, Rehnquist clerked on the Supreme Court, and he received lucrative job offers from private law firms. O'Connor, also a star student at Stanford University and its law school, didn't enjoy similar treatment. She had completed her schooling in six years instead of seven, having spent her fourth year as an undergraduate earning credit in the law school, and she had earned top grades. But she had just one law firm interview, and the partner asked her how well she could type.
"Well, medium,"O'Connor told him. "I can get by, but it's not great." The partner told her, "If you can demonstrate that you can type well enough, I might be able to get you a job in this firm as a legal secretary. But, Ms. Day, we have never hired a woman as a lawyer here, and I don't see the time when we will."
O'Connor declined the typing test and, contrary to popular legend, didn't even get an offer for the secretarial job. Knowing where to wage her battles, she turned her sights to the district attorney in San Mateo Valley and eventually persuaded him to hire her as a lawyer, after she wrote him a long letter and told him she could set up a desk in his secretary's office.
That December, on her family's cattle ranch in Arizona, she married the charming John O'Connor, whom she'd met on the Stanford Law Review. She became the sole breadwinner while her husband finished law school. When the O'Connors moved to Phoenix several years later, she still couldn't find work at a law firm, so she became heavily involved in volunteer work while she reared three sons, and then hung out her own shingle. She and John also developed a close group of friends, including Rehnquist and his wife, Nan, who also had settled in Phoenix. The families played bridge together, picnicked in the desert, enjoyed frequent dinners, and even participated in play readings.
About the time the Rehnquists were moving to Washington in the late 1960s, after Bill Rehnquist took a high-ranking Justice Department job in the new administration of Richard Nixon, O'Connor made the transition from committed Republican Party supporter to political candidate. In time she would become majority leader of the state senate -- the first woman to serve in such a position in American history.
When President Nixon nominated Rehnquist to the Supreme Court in 1971, O'Connor was as surprised as everyone else. She'd written Nixon just three weeks earlier and urged him to put a woman on the Court. But O'Connor quickly turned all her efforts to supporting her close friend, lobbying Arizona leaders and writing letters in support. In a speech on the floor of the state senate, she joked that her only regret was that the president's choice "doesn't wear a skirt." But he was "one of the most brilliant legal minds in the country," she said, and she predicted that he might someday become chief justice. After Rehnquist's confirmation, O'Connor and her husband flew to Washington for his swearing-in ceremony. It was O'Connor's first time in the Supreme Court.1
Rehnquist had been on the Court nine years when newly elected President Ronald Reagan got his first Supreme Court nomination. Reagan had said during his 1980 campaign that he wanted to nominate a woman to the Court, and his attorney general contacted Sandra Day O'Connor, then a midlevel state court judge.
"It had nothing to do with me," O'Connor said. "He was hoping to get votes from women, I assume, and rightly so." Attorney General William French Smith had kept a little piece of paper underneath the phone on his desk with names of possible nominees on it. Whenever he heard of a prospect, he'd jot down the name, and O'Connor's made it onto his handwritten list. She isn't sure how. Maybe through Chief Justice Warren Burger, whom she'd come to know through a presidential commission they'd served on together? Or through her old law school classmate Rehnquist? "Probably because there were not that many women judges, much less many Republican women judges," O'Connor said. "Face it. Where are you going to find them?"
Shortly after Potter Stewart told the White House he would be stepping down, Smith called O'Connor at home. She was in bed, recovering from a hysterectomy. "Could you come back to Washington to talk about a vacancy?" Smith asked. He did not say for the Supreme Court, but O'Connor knew what he meant.
"Well, I've just had surgery," she told Smith. "I'll have to check with the doctor. If he says okay, then yes."
O'Connor's doctor gave her permission to go, but only if she promised not to lift anything, not even a handbag. She flew out by herself several days later to begin a barrage of interviews with lawyers and staff in a hotel several blocks from the White House, so no one would see her. Smith told her that night that she would be meeting with Reagan in the White House the next day.
"Well, how do I get there?" she asked. Smith said he'd have his secretary pick her up where it was convenient. Before her surgery, O'Connor had planned to be in Washington for meetings with a medical advisory group. Since she was in town, she figured she might as well attend the meetings. The next morning, she left one of the group's ses- sions and stood outside a People's drugstore on Dupont Circle, where she waited for her ride to meet the president.
She talked with Reagan for forty minutes, with his top advisers sitting in the background. At first they discussed cattle and ranching and general things, like how much they enjoyed riding a good horse. Reagan then asked a few questions about law, though nothing of major substance. Do you understand the role of a legislator, Reagan asked, and the role of a judge? The question is a classic for conservatives, who think liberal judges act too much like politicians and decide issues that don't belong in court. It was a question O'Connor felt she was well qualified to answer. "I understood that about as well as anybody could," O'Connor said, "having been both." O'Connor remembers thinking that the conversation seemed fun for Reagan, and she enjoyed it herself.
When the interview ended, she went to the airport to catch her flight back to Arizona. "And I breathed a big sigh of relief. I thought, 'Wasn't that interesting, to meet all those people in the Oval Office?' "O'Connor said. She also felt sure she wouldn't get the job, especially with a friend from Arizona who also had gone to Stanford Law School already on the Court. "I was thinking it was so unlikely. I just thought it was not remotely likely. It was my husband who said, 'Of course they'll ask you. Don't be ridiculous.' "
A week later, Reagan reached her in her chambers in Phoenix. "I'd like to announce your nomination tomorrow, Sandra," Reagan said. O'Connor had gone from a young woman out of law school who couldn't get a job because of her sex to a judge who was going to be a Supreme Court justice because of it. "My heart sank," she said.
"It was such a massive undertaking, and I wasn't a bit sure my background and experience would enable me to do the job well enough to say yes," O'Connor explained. "You don't want to do a lousy job. I'd never worked at the Court. I wasn't a law clerk there. I didn't know it. I didn't have a practice that took me to the Supreme Court."O'Connor and her husband, John, were happy in Arizona. "To uproot ourselves and move to Washington, D.C., for me to start this massive new undertaking was a daunting prospect, and not one that filled my heart with joy,"O'Connor recalled.
O'Connor was a little shaky when she hung up with the president. She immediately called her husband at his office. He was not ambivalent." You have to do this," he told his wife. He had great faith and trust, and he told her she couldn't say no, despite her instincts." You'll do fine."
So the O'Connors went to Washington. The pressure was overwhelming at times. As a midlevel state court judge, O'Connor was not particularly well versed in some of the constitutional concepts senators wanted to talk about. Administration lawyers gave her binder after binder, filled with notes and cases and talking points. She met with senators during the day, studied the binders at night, and practiced with lawyers the next morning. Then she started again. She lost so much weight that her clothes became loose on her already thin frame.
After Reagan nominated her, O'Connor called on Rehnquist, as well as then-chief justice Burger, whom she'd come to know through judicial conferences, to ask what she might expect during the Senate confirmation process. O'Connor had been so involved in helping Rehnquist with his own battle a decade earlier that she never thought twice about calling him now that she was in the same position. But neither Rehnquist nor Burger felt comfortable, as sitting justices, talking with her while her nomination was pending. "The sense then, and I think today, was if you're nominated, you stay away," O'Connor said.
But unlike the more controversial Rehnquist -- who was hit with charges that he had opposed the landmark Brown v. Board of Education -- O'Connor did not need her friend's input. Despite grumbling from conservative senators worried about her views on abortion, O'Connor was confirmed unanimously.
Rehnquist was more conservative than O'Connor from the beginning, but his attitudes toward the Court and the law were similar to her own. A new day brought a new case. No grudges, just move on.
O'Connor always admired that about Rehnquist, and after Reagan appointed him chief justice in 1986, her appreciation for him only grew. Rehnquist ran the Court with great efficiency.
The new chief justice was a master of the short statement at the Court, and he demanded brevity from fellow justices in their conferences. Rehnquist made it known that he expected less talk than his predecessor Burger had allowed. He found endless debate unproductive, and he believed the justices could best exchange legal reasoning and ideas in written memos and drafts. Whenever Rehnquist thought a justice went on too long in conference, he would simply cut him off. "It will come out in the writing," he'd say.
"Bill Rehnquist was concerned about efficiency. He didn't want to waste time. You could raise your hand, but it was not encouraged," O'Connor said of the conferences. "I thought Rehnquist's push for efficiency was a pretty good thing -- to get on with the task and get the work done."
O'Connor voted often with Rehnquist in her early years, when he was the Court's most conservative member. Later, as chief justice, Rehnquist moderated his position on some issues, and O'Connor did as well. But as O'Connor entered her second decade on the Court, she began being pulled further left. Her voting patterns looked almost the same, but they didn't tell the full story. Increasingly, she was holding the conservatives back, staying on their side, but refusing to embrace sweeping rulings. By the early 1990s, Rehnquist found himself losing her vote on many of the era's major cases, as O'Connor became more liberal.2 Unlike Burger, who would invite O'Connor to tea when he wanted her vote, Rehnquist kept his distance.
As chief justice, Rehnquist rarely pushed the independent O'Connor, even when she sided with liberals on social issues. Despite their long friendship -- and the number of times he needed a fifth vote -- it was a rare instance when Rehnquist picked up the phone to press his views. Conservative critics of Rehnquist grumbled that he wasn't put- ting his all into the job. He could have been more effective in managing O'Connor, they complained, instead of just standing by while his friend abandoned them on the cases they cared about the most.
It wasn't Rehnquist's style to lobby. Once, in Clarence Thomas's first year on the Court, the new justice was struggling with a case over the plight of thousands of Haitians who'd fled their war-torn country on boats for the United States. The George H.W. Bush administration ordered the coast guard to intercept them and return them directly to Haiti. Lawyers asked the justices to step in and stop the coast guard. Thomas was anguished. He sympathized with the Haitians. He called Rehnquist for advice, and the chief referred Thomas to a favorite poem by Arthur Hugh Clough. "Say not the struggle naught availeth," the poem begins, urging fortitude in the face of battle. It then ends on a hopeful note: "Westward look, the land is bright."
Thomas made a copy of the poem and slid it under the glass top of his desk, where he's kept it. He joined seven other justices and declined to intervene in the plight of the Haitian boat people. "I am deeply concerned about these allegations" of mistreatment in Haiti, Thomas wrote in a separate opinion explaining why the Court would not step in. "However, this matter must be addressed by the political branches, for our role is limited to questions of law."3
When Rehnquist did press, he could be effective. He cared deeply about states' rights, and beginning in 1995 he'd convinced other justices to join him in scaling back Congress's power. The Court generally was divided on those cases 5-4, and O'Connor, the former state legislator, was a solid ally. But five years later Rehnquist worried he would lose her vote in a critically important states' rights case that challenged the federal Violence Against Women Act.4 The law allowed women to sue in federal court if they were physically assaulted because of their gender. Opponents said those lawsuits belonged in state court.
Rehnquist worried that O'Connor was wavering, and he felt compelled to approach her. Although O'Connor typically sided with him on states' rights issues, she also strongly supported women's rights. The case forced her to choose sides between two of her causes, and supporters of the law urged O'Connor to take theirs. But Rehnquist was the more effective lobbyist. O'Connor called him in his chambers late one afternoon to tell him she would be casting her vote with the chief. He hung up the phone with satisfaction. "Well, we got it," he said.
But even in those states' rights cases when O'Connor remained with her chief, the other justices seemed to be pulling back. Ten years after Rehnquist first tried to lead a "federalism revolution," the justices held up a stop sign and said that Congress could trump the states on law enforcement issues. The Court ruled that the federal government had broad powers to prohibit the use of marijuana for medical purposes, even if the states wanted to allow it.5 Antonin Scalia and Anthony Kennedy joined the Court's four liberals in supporting federal power in the case.
That case, decided at the end of the 2004 term, effectively ended Rehnquist's efforts to rein in Congress. Dying of cancer, he was in no condition to fire off one last rhetorical volley for states' rights. O'Connor and Thomas wrote the dissents instead.
The decision also seemed to signal the end of the Rehnquist Court. With the chief 's expected retirement, George W. Bush would finally get the chance to put his stamp on the Court. But Bush wouldn't immediately change its direction. He would be replacing a conservative with another conservative, albeit a leader of his choosing.
That year had been difficult for the Court. Rehnquist, so stern in private settings, was a well-liked leader, and the justices had developed a warm and easy rapport over the years, even though they grappled with the most divisive issues of the time. Liberal justice Ruth Bader Ginsburg affectionately called Rehnquist "my chief," and as he deteriorated before their eyes, they suffered along with him.
His illness was ever present. Even in the private conferences, Rehnquist's breathing was strained, and he frequently had to clear his tra- cheotomy tube. Some of the justices felt constrained from strongly disagreeing over the cases during those conferences. And the other justices ended up writing more opinions.
O'Connor had several important ones. Although she sided with the liberals to order the Ten Commandments removed from a county courthouse,6 she wrote a blistering dissent in a landmark dispute over property rights.7 The liberal justices, joined once again by Justice Anthony Kennedy, had allowed a Connecticut town to force residents from their homes so they could sell the land to developers and collect more property taxes.
O'Connor said the decision meant "nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." Her opinion may have been in the minority on the Court, but public outcry against the decision was immediate. Legislatures began passing laws to block the dire scenario O'Connor predicted.
The trials of the 2004 term behind her, O'Connor seemed to be looking ahead to another year on the Court. She had hired her law clerks for the next term, and had scheduled her public speeches so they didn't conflict with the days the Court was in session.
With the end of June approaching, O'Connor went back to talk to Rehnquist. He'd been coming to court every day, but she, like the other justices, still believed the chief would be retiring soon. She'd begun to think she would spend one more year on the Court before retiring herself. Rehnquist had been emphatic in their earlier discussion: The Court didn't need two retirements at the same time. Her guess was that he would announce his retirement, allowing her to stay one more year.
She guessed wrong.
"I want to stay another year," Rehnquist told O'Connor. Years earlier, Rehnquist had vowed not to linger at the Court, that no man was bigger than the institution he served. Now, facing death, Rehnquist wasn't ready to leave a job that defined his life. "Say not the struggle naught availeth," went the words of his favorite poem. "Westward look, the land is bright."
Rehnquist was not ready to give up. But he then delivered a message she had heard before, this time with a stunning implication: "And I don't think we need two vacancies."
O'Connor, the trailblazing jurist who was arguably the most powerful woman in America, was caught off guard. Rehnquist's implication was clear: She must retire now or be prepared to serve two more years. Her opinions had determined the direction of the Court, reshaped American culture, and preserved the constitutional right to an abortion. But now Rehnquist, ravaged by cancer and desperately ill, was unilaterally deciding both of their fates. He would stay, and she should either step down now or be prepared to serve longer than she wanted.
The seventy-five-year-old O'Connor had been willing to remain another year, but because of her husband's illness, that would be it. Since the day he'd met Sandra Day, John O'Connor III had spent his life providing unconditional love and support. Unlike his wife, he never doubted that O'Connor would get the nomination after she met with President Reagan. And he never doubted that she could handle the job, even in those early days when, as a new justice, she couldn't sleep and lost weight from the pressure of being the first female on the highest court. O'Connor had no idea, absolutely none, how she would hold up in the face of historic pressures. She soon received the answer: her husband.
Sandra O'Connor had always imagined that she and John would retire to Arizona, where they'd kept a home the entire time they'd lived in Washington. They'd spend more time with their grandchildren, on the golf course, and traveling around the world. But now it was clear that wouldn't happen. The face of retirement had changed. John was battling Alzheimer's, the same debilitating disease that crippled and killed the president who had nominated O'Connor as an associate justice two decades earlier. It was her turn to support her husband, before the disease stole him from her for good.
She hadn't thought she'd be retiring at the end of the term, but it soon started to sink in."Well, okay,"O'Connor said, deferring to her old friend and chief. "I'll retire then."
With that exchange, the fading Rehnquist delivered to conservatives the vote they had craved for more than a decade. Now George W. Bush and his Republican Congress could begin the realignment of the Supreme Court. Bush would not be replacing a conservative with a conservative. He would replace the justice who often dictated the direction of the Court.
After twenty-four years on the Court, O'Connor had become the justice to watch. Rehnquist may have occupied the center seat on the bench, but O'Connor was the justice in the middle. With the Court divided 4-4 on critical issues, her vote often determined the outcome of important cases. Lawyers crafted their arguments to appeal especially to her, knowing that as O'Connor went, so went the Court. So broad was her power that journalists and law professors stopped talking about the "Rehnquist Court." It was instead, they said, the "O'Connor Court." Her vote had preserved the constitutional right to an abortion8 and the use of affirmative action in college admissions.9 Her vote had helped keep religion out of the public square.10
When O'Connor took her seat in the courtroom that last Monday in June, she knew that William Rehnquist was staying put. She had reconciled the events of the past month and, as she looked out on the packed courtroom, understood that this day would likely be her last on the bench. She may have been ambivalent about the timing, but "you make the decision, and you live with it," she explained in an interview. She had already thought about what she would say in her letter to President Bush. "I wanted to convey one simple thing: that I'd decided to retire and that I respected the Court," O'Connor said.
But O'Connor also understood the power of her vote, and she anticipated the battle that would ensue over her successor. She planned to tell Bush that she would remain on the bench until the Senate confirmed her replacement. She wasn't willing to risk leaving the Court short one member. She didn't want the Court deadlocked. "I did that deliberately," O'Connor said. "I had no intention of leaving the Court in a mess. I chose those words deliberately."
Two days after the justices exited the courtroom, leaving Washington speculating over when Rehnquist would quit, O'Connor called the Court's marshal, Pamela Talkin, into her office. O'Connor had specific instructions. She had a letter for President Bush. Talkin should keep it in the Court's safe until Friday, then deliver it to the White House.
Some of the justices have speculated privately that O'Connor waited until Friday to announce her retirement in order to give Rehnquist a chance to retire first. But they are mistaken. O'Connor and her husband, John, were leaving town that day, and she wanted to be on her way before the news reporters descended. She had seen the crush of cameras outside Rehnquist's home, camped out for a photograph on the day of his expected retirement announcement. She was determined to avoid that public spectacle.
Talkin, who is the first woman to oversee the Court's operations and security as marshal, called White House Counsel Harriet Miers at the White House the next day. Miers, Bush's longtime adviser from Texas who'd come to Washington in 2001 to work in his administration, had become counsel only months before. But she knew the kind of justice Bush wanted to appoint, and she'd been involved in the discussions over possible replacements for Rehnquist. The conversation didn't take long. "I need to deliver something, a letter, from a justice," Talkin told Miers.
It was a call Miers had expected. All week the White House had waited for Rehnquist to make his announcement, and it had already lined up a handful of contenders for Bush to interview to replace him. But the White House had begun to doubt Rehnquist would leave. Talkin, on O'Connor's instructions, didn't tell Miers who had written the letter. She agreed to hand-deliver the letter to Miers in the White House the next morning at 10:30.
When Miers hung up the phone, she quickly notified Bush and Vice President Dick Cheney, who were having lunch, and then told her deputy, William Kelley. Only a few months into the White House job, Kelley had deep Supreme Court experience, having argued before the Court as a lawyer in the Bush and Clinton administrations and having served as a law clerk to Burger and Scalia before that.
Most of the work was done. Top White House officials, including Cheney, had been interviewing possible nominees to replace Rehnquist for the past two months, and they had winnowed down the list to a handful. Kelley had played a critical role in analyzing prospective nominees and their opinions and writings, to advise Bush on whether they'd remain solidly conservative once on the Court.
Talkin and officials in the court's public information office arrived early the next day, as did Miers and her team in the White House. Miers called Talkin again to ask if she could bring the letter fifteen minutes earlier than scheduled. Talkin agreed, and then she delivered the stunning news. "The letter," she told Miers, "is from Justice O'Connor."
The revelation came as a jolt, but it would be a mistake to say that Miers was shocked.With no news from Rehnquist, some -- notably the Weekly Standard's Bill Kristol -- had already speculated that it would be O'Connor who would step down. Seasoned Court watchers didn't believe it, nor did O'Connor's friends. But Miers saw it as her job to anticipate every possible contingency, and O'Connor's retirement -- though unlikely -- was one she'd considered.
O'Connor had told only a handful of people about her plans. Not even her three boys knew. She'd written them letters several days before and timed them to arrive at their homes Friday, when everyone else heard the news. As Talkin was breaking the news to Miers, O'Connor's farewell letters were hitting the other justices' desks.
O'Connor's secretary called Ginsburg's chambers. "You're going to get a letter from Justice O'Connor," she said. "You should open it right away."
Ginsburg was stunned. Kennedy, upon getting the letter, walked down the hall and gave O'Connor a hug. Clarence Thomas quickly called his wife, Ginni, who worked at the conservative Heritage Foundation, with the news. Minutes later, Thomas called back and asked his wife to urge her Heritage colleagues -- frustrated by years of O'Connor opinions -- not to say a negative word about her in the press.
Thomas, like the other justices, had grown fond of O'Connor. Depending on the age of the justice, the pioneering O'Connor was invariably described as a mother hen or a sister, the one who organized their lunches and kept things moving along. Even as the Court took up contentious issues that divided the justices as they divided the nation, the justices remained collegial. They credited O'Connor for much of that. They would miss her.
An hour later, one of the Court's Lincoln Town Car sedans whisked Talkin down Pennsylvania Avenue and into the White House, where she handed Miers the letter of resignation.
Before Talkin made it back to her office, Bush called the Court to speak with O'Connor and thank her for her service. The two spoke briefly. Bush invited her to the White House, but she declined. She had a plane to catch.
"For an old ranching girl, you turned out pretty good," Bush told O'Connor. "You're one of the great Americans." O'Connor found herself overcome with emotion, and her voice began to break.
"I wish I was there to hug you," Bush said.
Minutes later, O'Connor walked out of the courthouse with John at her side and headed to Ronald Reagan Washington National Airport. The era of the so-called O'Connor Court was over.
Bush now had his chance. The battle would be epic. A new justice could provide the deciding vote on cases involving abortion, affirmative action, and religion. But the stakes, if anything, were even higher. O'Connor's retirement could change not only the Court's direction, but its very role in American life. For the past fifty years, beginning under the leadership of Earl Warren, the Court had confronted America's most pressing social controversies. The Court showed little hesi- tation in interjecting itself into those disputes and attempting to solve the nation's most vexing problems from the bench, even if that meant wresting them away from the state legislatures and the Congress.
In the 1950s, civil rights groups increasingly turned to the courts because elected officials did little or nothing to stop pervasive and virulent discrimination against African Americans. The Supreme Court responded with Brown v. Board of Education in 1954, which dismantled "separate but equal" facilities for blacks and whites throughout America. Segregation was outlawed by Brown, and only because the Warren Court ignored critics and intervened.
But the Court did not stop there. It began to see itself as a vital protector of rights and liberties, including those not specifically addressed in the Constitution. It recognized greater rights for criminal defendants. It imposed limits on religious expression. It identified new constitutional rights to privacy. Its role in American society grew. It became a moral compass.
Liberals believed that was an entirely proper role for the Court, especially since the other branches of government had failed so miserably in the area of civil rights. The Court was supposed to protect the rights of the minority against the will of the majority. If judges would not, they said, perhaps no one would. That approach encouraged the justices to identify new constitutional rights, especially in situations the document's framers could never have imagined two hundred years earlier. As society changed, the understanding of the Constitution should change with it, liberals believed, and the justices should help foster the progression.
Conservatives saw a Supreme Court that had arrogantly grabbed power for itself. By deciding those issues and creating new constitutional rights, conservatives believed, the justices usurped the role of elected officials, who were closer to the people and more accountable for their decisions at the ballot box. That struck at the heart of democratic participation, they believed. After all, voters aggrieved by their elected officials could campaign for change. But if the Court's unelected judges made all the decisions, the electorate had no leverage and little incentive to get involved in the debates.
As it happened, many politicians came to welcome the Court's intervention in contentious issues. It often saved them from making the tough calls. A politician could vote for extremely strict regulations on abortion, for example, knowing a court would step in and reverse them. His vote would have no practical impact, other than as a campaign slogan. A Maryland state senator candidly summed up that sentiment during a 2006 debate in his state legislature over whether to allow gay marriage, an issue that had bitterly divided his constituents. "I'm just hoping and praying the courts will step in," he said.11
For four decades, Republican presidential candidates had campaigned on constraining the Supreme Court's role in American life. But once elected, they'd had little success in doing so. The Warren Court soared so high and fast that it created a draft that swept the next Court, led by conservative Chief Justice Burger, right up with it. When Rehnquist took over in 1986, conservatives assumed his Court would pull back. Instead, it merely slowed down the constitutional crank, without turning it back the other way.
Sandra Day O'Connor's retirement offered a long-awaited opportunity to finally change the Court's direction—but only if conservatives didn't blunder through the process as they had in the past.
Justices -- especially presumed conservative ones -- have sometimes surprised the presidents who appointed them. Theodore Roosevelt said he could "carve out of a banana a Judge with more backbone" than Oliver Wendell Holmes. Harry Truman suffered a stinging setback when two of his four appointees voted to strike down his claims of presidential power to seize the nation's steel mills in 1952, and he called Justice Tom Clark "my biggest mistake." Dwight Eisenhower reportedly said his two worst mistakes as president both sat on the Supreme Court: William Brennan and Earl Warren, who became the ideological leaders of the most left-wing court in history. "Packing the Supreme Court simply can't be done," Truman said. "I've tried it, and it won't work."
Ronald Reagan made four appointments to the Supreme Court, but he failed to reverse the legacy of the liberal Warren Court. Nor did Richard Nixon, who also nominated four justices, including Rehnquist. Nixon, like Reagan, deliberately made his nominations to reverse the Court's direction. But Nixon ended up with yet another liberal court— and he appointed a justice, Harry Blackmun, who would write Roe v. Wade, a decision that would outrage conservatives for decades to come and change forever the tenor of confirmation hearings.
Change does not come easily in an institution that, once set on its course, moves with all the speed and agility of an oil tanker. Rehnquist himself tried to explain in speeches in the mid-1980s why presidents so often fail to transform the Supreme Court. Beyond legal principles that can constrain justices from readily overturning previous decisions, Rehnquist speculated that new issues come before the Court that the justices -- and the appointing president -- simply never considered. Then there is public opinion. The justices work in an insulated atmosphere in the courthouse, but they go home and read the papers and talk about current events. Just as one planet can affect the orbit of another, public opinion "will likely have an effect upon the decision of some of the cases decided within the courthouse," Rehnquist said in a 1986 speech.
But conservative leaders, long focused on turning those tides of public opinion in their direction, have always grumbled that its influence always pulls justices one way: toward liberal elites in the media, especially the editorial pages of the New York Times, and at law schools, where most prominent academics see the Warren Court as the standard-bearer.
The Rehnquist Court had proven deeply disappointing to the Right. Justices billed as conservative proved not to be; justices who were solidly conservative shifted the court in unexpected ways. In both its reason- ing and results, the Court failed to live up to conservative expectations and at times acted directly contrary to them. With seven Republican appointed justices, the Rehnquist Court had refused to overturn Roe v. Wade, which guaranteed a woman's right to an abortion. It reaffirmed Miranda v. Arizona, a 5-4 Warren Court decision that required police to give warnings against self-incrimination to criminal suspects in custody. 12 It would not bring down the curtain on affirmative action.13 It put greater restrictions on the death penalty14 and created new rights for gays and lesbians,15 expressly overturning earlier decisions in the process. It imposed sharper limits on presidential power than ever before.16
By the end of Rehnquist's tenure as chief justice, his court was decidedly not conservative. With O'Connor and Kennedy at its center, the Court was willing to identify new rights in the Constitution and take on all those nettlesome social issues that conservatives thought should be decided by legislatures. The Rehnquist Court didn't hesitate to take on the most hotly debated public issues of the time -- abortion, gay rights, affirmative action, the death penalty, presidential power, the separation of church and state. Sometimes the decisions were narrow. Sometimes the justices split the difference between two strongly argued extremes.17 But more often than not, on the most volatile issues, the Court did not take the conservative path.
Like the Republicans in the political branches, who have flouted ethics laws, increased the size of government, and shown no discipline in cutting runaway spending, the Supreme Court under Rehnquist went astray from conservative legal principles. Over the years, the O'Connor Court became increasingly willing to inject the Court -- and the Constitution -- into explosive public disputes. The justices came to believe that judicial wisdom could help decide the right policy. Their opinions didn't have the aggressively progressive tone of the Warren Court's decisions, which profoundly reshaped constitutional rights and protections in criminal law, civil rights, race relations, free-speech rights, and religion, but they produced significant liberal victories.
That's not to suggest that the Court was liberal. If anything, it was jurisprudentially unmoored. During Rehnquist's reign, the justices were in a constant struggle over which of their competing legal theories was most relevant. They had their own philosophies about the law, so the Court could legitimately be characterized as liberal one day and conservative the next. They tended to think of themselves as individual justices first, and less like a court of nine working to find consensus in the law. The Court was ideologically adrift, and its course usually depended on which way O'Connor -- and to some extent, Kennedy -- chose to go.
More often than not, on the big cases involving contentious social issues, O'Connor or Kennedy -- or both of them together -- would join the four liberals to rule against conservative positions. Only two of the justices who took the liberal path were Democratic nominees. The other four were appointed by Republicans. President Ford appointed John Paul Stevens, a maverick whose vote became solidly liberal after his first decade on the Court. Reagan tapped swing justices O'Connor and Kennedy. George H.W. Bush selected David Souter, one of the Court's most predictably liberal members.
As chief justice, Rehnquist was unable to build consensus and forge coalitions on key cases, even with his old friend O'Connor. At times, the once-fiery dissenter seemed to care more about a case's outcome than about the principled legal reasoning it took to get there, disappointing conservatives like Scalia, who would bluntly note the inconsistencies. In a 1998 case, Scalia accused the Court, with Rehnquist in the majority, of taking an approach it had specifically rejected only the year before. "The changes are attributable to nothing but the passage of time (not much time, at that), plus application of the ancient maxim "That was then, this is now,' " Scalia wrote in a dissent joined by Thomas.18
Unmoored as the Rehnquist Court appeared to be, however, few would argue that it was more expansive in granting rights than the Burger and Warren Courts would have been -- with the possible exception, ironically, of Bush v. Gore, which ruled that the Florida recount in the disputed 2000 presidential election violated equal protection. During Rehnquist's remarkable thirty-three-year judicial career, he eventually molded other justices to his strong law enforcement views. His Court imposed limits on affirmative action and narrowed the use of redistricting designed to increase minority representation. It allowed more religious expression, including school vouchers for parochial schools. He also led a Court that was more assertive about its own authority, and more willing than any other Court in modern times to invalidate federal legislation that infringed on the states' concerns.
But the Rehnquist Court didn't dig up the foundation cemented by more left-leaning Courts and justices. Some of Rehnquist's victories, especially in scaling back congressional power over the states, had little practical impact. The way conservatives saw it, his Court did little to impede the liberal agenda, and in many cases actively furthered it. On one key social issue after another, the Rehnquist Court seemed bent on frustrating those who had long dreamed of restoring the Court to what they saw as its proper place in the system of government.
Perhaps that is why most liberal criticism of the Supreme Court focused more on fears about where the Court was headed than where it actually stood toward the end of Rehnquist's tenure.
Academics have written about the Rehnquist Court's surprising liberal legacy. Some have attributed its shift left to the Court's ruling in Bush v. Gore, which ended the bitterly contested 2000 presidential election and handed the presidency to George W. Bush.19 That decision opened the Court to withering criticism for deciding the case on politics, not law. Those denunciations may have made the Court's centrists even more wary of being cast as predictable conservatives, a concern that would push the Court even further left in the remaining years of Rehnquist's tenure. But the suggestion that O'Connor and Kennedy voted with the Court's liberals only in the years after Bush v. Gore, in order to counter allegations by the media and law professors that they had been driven by rank partisanship, ignores a decade of their earlier rulings on social issues.
Still, the 2000 election was without question a watershed event for the Court. The outcome of the race came down to fewer than a thousand votes in Florida. Al Gore initially conceded defeat on election night when it appeared that Bush had carried the state and won the presidency, but the balloting was so close, the stakes so high, that Gore withdrew his concession and decided to challenge the results and ask for a partial recount.
The legal battle captivated the nation, as television networks aired endless images of election officials hand-counting the ballots, often holding them up to the light and squinting quizzically to discern the vote. Bush opposed the recount, arguing that it was illegal under state law and the federal Constitution. His partisans also made much of the fact that Gore and his lawyers had asked that a recount be conducted not in the entire state, but only in a few heavily Democratic Florida counties where they suspected those squinting at hanging chads might "find" enough additional votes to hand the election to Gore. Lower courts agreed with Bush, but the Florida Supreme Court ordered the recounts to continue.
Entire books have been written on the Supreme Court's decision in Bush v. Gore, but the outcome is not that complicated. The five most conservative justices joined together to block the recount of votes in Florida, essentially calling the election for George W. Bush. The conservatives believed that the Florida Supreme Court had brazenly thumbed its nose at an earlier unanimous U.S. Supreme Court decision by ordering the recounts to continue without any standards for conducting them. The conservatives said the process was so arbitrary that it violated basic concepts of equal protection, a secondary argument Bush's legal team had made. This was a startling decision from justices who had spent their careers resisting such broad constitutional claims.
The Court's four most liberal justices sided with Gore, refusing to join a more narrow opinion by Rehnquist that upbraided the Florida Supreme Court for ignoring their directives. The liberals said the justices should stay out of the process and emphasized states' rights—that the Florida courts and the Florida officials should handle a recount which would determine the presidential contest. It was a stunning claim coming from the four,who had vehemently opposed previous Supreme Court decisions giving states greater powers.
The decision produced deep divisions in the Court and outraged liberals, law professors, and editorial writers, all of whom accused the conservative justices (though not their liberal counterparts) of deciding the case based on their political views. Although every justice had taken a position at odds with his or her stance in the past, the blow to conservatives was particularly severe. The decision also seemed to represent the kind of result-driven outcome the conservative legal movement had long opposed.
The conservative legal movement prided itself on strictly following its methods of interpreting the Constitution, even when it produced results conservatives didn't like. But the unsigned opinion in Bush v. Gore seemed to many like a result-oriented approach, good for one day, and one case, only.
The Court's liberal justices still believe Bush v. Gore was a political decision, and they privately question whether the outcome would have been the same if it had been Gore v. Bush, with the Republican candidate calling for a recount. They contend that the Court would never have reviewed the case in the first place if the parties had been reversed.
But the conservative justices say politics didn't drive them. Kennedy says he took a long walk around the hallways of the Supreme Court and imagined how he would have seen the case if the parties had been reversed. He concluded that he would have decided it the same way. The conservative justices believe that the country was in crisis, and they insist that they had a duty to step in and make the hard decisions. The Florida Supreme Court was a rogue state court "off on a trip of its own," as O'Connor puts it, ordering up recounts but without clear and uniform standards for doing it. The justices, she argues, had no choice but to step in.
"A no-brainer! A state court deciding a federal constitutional issue about the presidential election?" Kennedy exclaimed, in an interview nearly six years later. "Of course you take the case."
The Supreme Court didn't ask to get involved, defenders like Kennedy and O'Connor say. It was Al Gore who started the recount battle. "It would be odd if the people that brought the litigation would later say the courts shouldn't intervene,"Kennedy says today. "We didn't say the case should go to the court. Those were the other parties that made that decision for us. And for us to say, 'Oh, we're not going to get involved because we're too important,' well, you know, that's wrong."
O'Connor is less forceful in her analysis. She ruefully notes that subsequent media recounts of the disputed ballots indicated Bush would have won Florida.20 The outcome would have been the same, she says, even without the Supreme Court's involvement. "It's not correct to say the Court determined the result. The voters determined the result, and it never changed,"O'Connor says today. "Could we have done a better job? Probably. But it wouldn't have changed the result."
Whether the decision elected a president or not -- and media recounts of ballots in the contested counties support O'Connor's contention -- this was a Court that possessed a sweeping sense of its role in refereeing disputes of enormous national importance. A judicial approach that had infuriated and motivated conservatives for decades was entirely pleasing to them as Bush v. Gore unfolded. And if the conservative justices were driven by a political or ideological motive to rule in a way that guaranteed Bush's election, their decision paid multiple dividends. It gave the new president a chance to appoint two or three justices who would hold a much more restrictive view of their roles on the bench.
The Court stayed together for five years after Bush v. Gore, denying George W. Bush a nomination in his first term. In that time, the Court's moderates embraced sweeping liberal rulings on key social issues, further disappointing conservatives. With Sandra Day O'Connor's retirement, Bush would now have the chance to succeed where his father and so many other Republican presidents had failed. If he got it right, he could make history. The burden of reshaping the Supreme Court would be placed on Bush's administration and his GOP majority in the Senate. The battle for the Supreme Court's future was about to begin.