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 theirblack robes in a paneled changing room just behind the courtroomand gathered next door in the oak-paneled conference room wherethey meet to discuss cases. The room is just outside the chief justice'schambers, and as always, he joined them already wearing his robe. Rightbefore the appointed hour, they all shook hands. Then they walked singlefile behind their chief, in order of seniority, to wait behind those velvetcurtains. As the Court's marshal announced "the honorable, thechief 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 precededthe marshal's announcement, as if the spectators in the surprisinglyintimate marble courtroom suddenly and all at once noticed thatit was time. But on this day, the hush seemed more profound, as if thecrowd thought it could somehow will the justices into the courtrooma moment or two early. It was a big day, a historic day in the minds ofmany. All the seats were full, some with top government officials usheredin by Supreme Court police officers, others with people who hadcamped out overnight in the sticky heat of Washington in late June.
The justices stepped up to their long wooden bench in unison andpulled back their high-backed black leather chairs. The scene was carefullychoreographed, but also well practiced. This group had worked togetherfor eleven years. As the justices sat down in their seats, the peoplein the audience sat up straighter in theirs. Some leaned forward. Everyone,even the justices, looked at the gaunt man in the middle of thebench. It was the last time they expected to see Chief Justice WilliamRehnquist in that seat, controlling a court he'd led for nineteen years.
Rehnquist was eighty years old, and he was dying of cancer. Manyin the courtroom on the last day of the 2004-5 term had come to seehim announce the inevitable: He was retiring after thirty-three years onthe Supreme Court. The White House had already begun interviewingpossible replacements. Journalists had worked up lengthy stories abouthis legacy, to run when he made his announcement. Former law clerkshad considered the remarks they would offer, if asked, about the chief 'scurious mix of stern leadership and personal warmth. More than oneplanned to talk about how it was a testament to Rehnquist's willpowerand love of the institution that he had managed to finish out the termdespite the illness that had weakened him. He was not the kind to leavehis ship midcourse; he had steered it home.
None of them truly knew just how sick Rehnquist was. The previousOctober, doctors had diagnosed him with anaplastic thyroid cancer,the most serious and aggressive form of thyroid cancer. They'dperformed a tracheostomy, an operation to make a permanent openingin his throat so he could breathe and eat when the chemotherapyand radiation swelled it shut. Rehnquist did not disclose any detailspublicly, nor did he make public the grave prognosis his doctors hadgiven him. A younger man, doctors told Rehnquist in the hospital afterhis diagnosis in October, would have less than a year to live. He'd haveperhaps half that.
On that June morning, Rehnquist, who loved to put down a one dollarbet on almost anything -- the amount of snowfall, a footballgame, a congressional election -- had already beaten his odds.
The atmosphere in the courtroom grew tense as the Court turnedto the last two cases of the term. Both dealt with whether the Ten Commandmentscould be displayed on public property. The question hadgenerated enormous controversy across the nation. In Alabama, thestate's chief justice had been kicked out of office when he refused to removea large display from his courthouse. The justices had struggledmightily with these decisions before splitting the difference. They approveda Ten Commandments monument on the grounds of the Texasstate 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 struggledto provide even the briefest of summaries. Unable to eat becauseof his cancer, he'd become thin and stooped, and his skin appearedgray. His trademark booming baritone, which had silenced many alawyer, sometimes in midsyllable, was gone. His voice now was weakand reedy from the tracheostomy. Rehnquist ticked off the names of thesix other justices who'd also written opinions in that Ten Commandmentscase.
"I didn't know we had that many people on our Court," Rehnquistsaid slowly, his breathing labored. Then he smiled as he looked to thejustices on his left and right, and the courtroom exploded in laughter.Rehnquist thanked the Court's staff for its work over the term. Theaudience grew completely still. The other justices peered intently atRehnquist. This would be the time for the announcement. Rehnquistseemed to pause briefly. Then he banged down the gavel and carefullyrose from his seat.
The other justices, looking confused, slowly began to follow. OnlyO'Connor seemed to have a sense of purpose. She turned and steppedbeside her old chief, ready to help him if he needed her arm. Then theold chief shuffled back to his chambers, leaving all of Washington towonder and wait.
The anticlimax of a non-announcement that morning carried nosmall amount of apprehension and unease for conservatives and liberalsalike. Amid the swirling rumors of retirement and change, conservativeswere facing an uncomfortable reality: the Rehnquist Court, withseven justices appointed by Republican presidents, had become a legaland ideological disappointment. Time after time, these justices had refusedto sweep aside the landmark liberal rulings of earlier SupremeCourts. In case after case, the justices frustrated conservatives by avoidingclear resolutions of the most controversial issues of constitutionallaw. Liberals may have seen a Court that put a Republican in the WhiteHouse, but on the volatile and often emotional issues of abortion, affirmativeaction, capital punishment, and religion, conservatives wereleft gasping, often falling just short of their goals. Justices who were advertisedand marketed as conservatives turned out to be anything but.Victories at the polls seemed to have no meaning when it came to influencingthe direction of the Court.
Despite anticipation of a historic retirement, there was unspokenanxiety on both sides about whether George W. Bush would be able toseize the opportunity for fundamental change. Drama over possibleretirements was ratcheted up as conservatives and liberals sensed themoment for changing the Court's direction might again be at hand.Who knew when another such opportunity might come to pass? IfBush had his moment, would he succeed where others -- including hisown father -- had failed?
That morning, change was in the air. But of all the people who hadgathered in the courtroom, of all the justices and officials and lawyersand former clerks, only O'Connor and Rehnquist knew how much.Bush would get his chance.
What would happen next would, after a protracted and sometimesbizarre series of steps and missteps, after strokes of strategic brillianceand acts of folly at the highest levels, produce a profound and lastingalteration to the Supreme Court. The Court that had functioned as aunit for more than a decade, unaltered since the seating of JusticeStephen Breyer in 1994, would be transformed by the departures ofthese veteran judges, Rehnquist and O'Connor, these old friends fromthe West. It would be a titanic conflict, one that would turn old alliesinto enemies, damage reputations, and open bitter wounds, and whenthe smoke of battle finally lifted, one of the most fateful shifts in thecountry's judicial landscape in a generation would be a fait accompli,with repercussions as yet unimagined.
Sandra Day O'Connor was not a woman who sat still. She hadgrown up under big skies, surrounded by miles of open land, andshe liked to get out and see things. In the fall of 2004, she readilyagreed to travel to Ottawa with her old friend and colleague BillRehnquist to meet with judges on Canada's Supreme Court. Rehnquistinvited another justice, Tony Kennedy, and together the group flewthere in mid-October.
Rehnquist and his colleagues had just kicked off a new SupremeCourt term that had reached a significant milestone. Over its history,the Court has welcomed a new justice on an average of about every twoyears. Rehnquist's current Court had worked together for a decade, thelongest period nine justices had ever served together without a changein membership.
But as Rehnquist, O'Connor, and Kennedy left Washington, changeseemed likely. The presidential election was weeks away. George W.Bush was fighting for his political life against a spirited challenge fromMassachusetts senator John F. Kerry, with both the president and hischallenger pointing to the closely divided Supreme Court to illustratethe campaign's high stakes. With two justices over eighty years of ageand two others in their seventies, the next president could get one, two,or even three appointments. It seemed certain in those frantic finalstages of the race that the winner of this election would shape the directionof the Court, and with it the country, for decades to come.
On a sunny fall Ottawa day, Rehnquist, O'Connor, and Kennedyspent their time meeting with their Canadian counterparts and touringsome of the government buildings, including the Senate and Houseof Commons. After their official visits, O'Connor wanted to lookaround the picturesque capital. She was a woman in motion, and sheliked to bring people along with her. Every year, O'Connor would takeher law clerks on long outings around Washington's landmarks to makesure they didn't miss out, and she encouraged the women to join heraerobics class, which she had started at the Supreme Court just after herconfirmation 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 coldhe couldn't shake, some kind of respiratory thing. It had been going onfor a while.
Later that day, Kennedy told his wife, Mary, that he thought Rehnquistwas unwell. Rehnquist suspected it too. He'd been more tired thanusual, and his throat was scratchy. His voice wasn't the same. When hereturned home from his Canadian meetings, he went to Bethesda NationalNaval Medical Center for tests. On Friday, October 22, doctorsgave 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 followingMonday that Rehnquist had been diagnosed with thyroid cancerand had undergone surgery. Rehnquist, the Court said, expected tobe back on the bench the following week.
With barely a week left before the presidential election, the announcementcaused surprisingly little stir. Interest groups tried to makethe Supreme Court a rallying point with voters. Reporters intervieweddoctors who suggested that Rehnquist's days were numbered. But theCourt disclosed nothing more, and the story soon died down. By Friday,news that Rehnquist had been released from the hospital barelymerited a mention, since the Court continued to insist he was returningto 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 monthswhile Rehnquist underwent treatment to reduce the cancerous tumor.He didn't tell the justices about his prognosis, but some of his colleaguesassumed he would never again sit beside them in court. JusticeJohn Paul Stevens, the Court's most senior associate justice, took overfor Rehnquist in the public sessions and ran the justices' private conferences,where they discuss cases and vote. Stevens even began to relaxthe terms of the Court's discussions, giving the lawyers and the justicesmore time to make their points than Rehnquist had allowed.
But Rehnquist, ever the tough old Lutheran, would swear in PresidentBush during a wintry inauguration ceremony, and he would beback in the courtroom by the end of March. His deep and resonantvoice was forever changed, but he allowed no concessions to be madeto his weakened condition. He sternly cut off lawyers when their timeexpired, almost as if he'd opened a trapdoor. He kept a tight rein on theconferences, just as he always had. But he was fading away, his clothesgetting looser on his angular frame and his wristwatch dangling nearhis knuckles when his hands were at his sides.
After Rehnquist had returned to the courthouse and resumed moreof 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 endof the term, and she had reluctantly concluded that she should beginplanning her own departure. John, her devoted husband of fifty-twoyears, was suffering from Alzheimer's disease, and he was becoming increasinglyfrail. 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 weakeningcondition, he hadn't looked that far ahead into his own future. "Wedon'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 fromvery different places -- he was the A student from Wisconsin who'd beenan army weatherman; she was the Arizona cowgirl who roped and rodehorses with the boys. But Rehnquist had a quick wit, and O'Connorloved a good joke, so the two socialized often. Since Stanford didn't haveon-campus housing for women graduate students, O'Connor and otherwomen students lived in a co-op apartment. Rehnquist and his friendswould visit and help with dinner. Afterward, the group would play charades,a game Bill Rehnquist would enjoy his entire life, especially withhis law clerks.
After law school, Rehnquist clerked on the Supreme Court, and hereceived lucrative job offers from private law firms. O'Connor, also astar student at Stanford University and its law school, didn't enjoy similartreatment. She had completed her schooling in six years instead ofseven, having spent her fourth year as an undergraduate earning creditin the law school, and she had earned top grades. But she had just onelaw 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 typewell 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, andI don't see the time when we will."