Book Excerpt: 'Supreme Conflict'
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.
Prologue
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.
1. Day's End
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."
O'Connor declined the typing test and, contrary to popular legend,didn't even get an offer for the secretarial job. Knowing where to wageher battles, she turned her sights to the district attorney in San MateoValley and eventually persuaded him to hire her as a lawyer, after shewrote him a long letter and told him she could set up a desk in his secretary'soffice.
That December, on her family's cattle ranch in Arizona, she marriedthe charming John O'Connor, whom she'd met on the Stanford Law Review.She became the sole breadwinner while her husband finished lawschool. When the O'Connors moved to Phoenix several years later, shestill couldn't find work at a law firm, so she became heavily involved involunteer work while she reared three sons, and then hung out her ownshingle. She and John also developed a close group of friends, includingRehnquist and his wife, Nan, who also had settled in Phoenix. Thefamilies played bridge together, picnicked in the desert, enjoyed frequentdinners, and even participated in play readings.
About the time the Rehnquists were moving to Washington in thelate 1960s, after Bill Rehnquist took a high-ranking Justice Departmentjob in the new administration of Richard Nixon, O'Connor made thetransition 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 Courtin 1971, O'Connor was as surprised as everyone else. She'd writtenNixon just three weeks earlier and urged him to put a woman on theCourt. But O'Connor quickly turned all her efforts to supporting herclose friend, lobbying Arizona leaders and writing letters in support. Ina speech on the floor of the state senate, she joked that her only regretwas that the president's choice "doesn't wear a skirt." But he was "oneof the most brilliant legal minds in the country," she said, and she predictedthat he might someday become chief justice. After Rehnquist'sconfirmation, O'Connor and her husband flew to Washington for hisswearing-in ceremony. It was O'Connor's first time in the SupremeCourt.1
Rehnquist had been on the Court nine years when newly electedPresident Ronald Reagan got his first Supreme Court nomination. Reaganhad said during his 1980 campaign that he wanted to nominate awoman to the Court, and his attorney general contacted Sandra DayO'Connor, then a midlevel state court judge.
"It had nothing to do with me," O'Connor said. "He was hoping toget votes from women, I assume, and rightly so." Attorney GeneralWilliam French Smith had kept a little piece of paper underneath thephone on his desk with names of possible nominees on it. Wheneverhe heard of a prospect, he'd jot down the name, and O'Connor's madeit onto his handwritten list. She isn't sure how. Maybe through ChiefJustice Warren Burger, whom she'd come to know through a presidentialcommission they'd served on together? Or through her old lawschool classmate Rehnquist? "Probably because there were not thatmany 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 steppingdown, Smith called O'Connor at home. She was in bed, recoveringfrom a hysterectomy. "Could you come back to Washington to talkabout 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 withthe doctor. If he says okay, then yes."
O'Connor's doctor gave her permission to go, but only if she promisednot to lift anything, not even a handbag. She flew out by herself severaldays later to begin a barrage of interviews with lawyers and staff ina 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 theWhite House the next day.
"Well, how do I get there?" she asked. Smith said he'd have hissecretary pick her up where it was convenient. Before her surgery,O'Connor had planned to be in Washington for meetings with a medicaladvisory group. Since she was in town, she figured she might as wellattend the meetings. The next morning, she left one of the group's ses-sions and stood outside a People's drugstore on Dupont Circle, whereshe waited for her ride to meet the president.
She talked with Reagan for forty minutes, with his top advisers sittingin the background. At first they discussed cattle and ranching andgeneral things, like how much they enjoyed riding a good horse. Reaganthen asked a few questions about law, though nothing of major substance.Do you understand the role of a legislator, Reagan asked, andthe role of a judge? The question is a classic for conservatives, whothink liberal judges act too much like politicians and decide issues thatdon't belong in court. It was a question O'Connor felt she was wellqualified to answer. "I understood that about as well as anybody could,"O'Connor said, "having been both." O'Connor remembers thinkingthat the conversation seemed fun for Reagan, and she enjoyed itherself.
When the interview ended, she went to the airport to catch her flightback to Arizona. "And I breathed a big sigh of relief. I thought, 'Wasn'tthat interesting, to meet all those people in the Oval Office?' "O'Connorsaid. She also felt sure she wouldn't get the job, especially with afriend from Arizona who also had gone to Stanford Law School alreadyon the Court. "I was thinking it was so unlikely. I just thought it wasnot remotely likely. It was my husband who said, 'Of course they'll askyou. Don't be ridiculous.' "
A week later, Reagan reached her in her chambers in Phoenix. "I'dlike to announce your nomination tomorrow, Sandra," Reagan said.O'Connor had gone from a young woman out of law school whocouldn't get a job because of her sex to a judge who was going to be aSupreme Court justice because of it. "My heart sank," she said.
"It was such a massive undertaking, and I wasn't a bit sure my backgroundand experience would enable me to do the job well enough tosay yes," O'Connor explained. "You don't want to do a lousy job. I'dnever 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'Connorand her husband, John, were happy in Arizona. "To uproot ourselvesand move to Washington, D.C., for me to start this massive new undertakingwas a daunting prospect, and not one that filled my heartwith 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 overwhelmingat times. As a midlevel state court judge, O'Connor was notparticularly well versed in some of the constitutional concepts senatorswanted to talk about. Administration lawyers gave her binder afterbinder, filled with notes and cases and talking points. She met withsenators during the day, studied the binders at night, and practicedwith lawyers the next morning. Then she started again. She lost somuch weight that her clothes became loose on her already thin frame.
After Reagan nominated her, O'Connor called on Rehnquist, as wellas then-chief justice Burger, whom she'd come to know through judicialconferences, to ask what she might expect during the Senate confirmationprocess. O'Connor had been so involved in helping Rehnquistwith his own battle a decade earlier that she never thought twice aboutcalling him now that she was in the same position. But neither Rehnquistnor Burger felt comfortable, as sitting justices, talking with herwhile 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 hitwith charges that he had opposed the landmark Brown v. Board ofEducation -- O'Connor did not need her friend's input. Despite grumblingfrom 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 toher own. A new day brought a new case. No grudges, just move on.
O'Connor always admired that about Rehnquist, and after Reagan appointedhim 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 theCourt, and he demanded brevity from fellow justices in their conferences.Rehnquist made it known that he expected less talk than hispredecessor Burger had allowed. He found endless debate unproductive,and he believed the justices could best exchange legal reasoning andideas in written memos and drafts. Whenever Rehnquist thought a justicewent on too long in conference, he would simply cut him off. "Itwill come out in the writing," he'd say.
"Bill Rehnquist was concerned about efficiency. He didn't want towaste time. You could raise your hand, but it was not encouraged,"O'Connor said of the conferences. "I thought Rehnquist's push forefficiency was a pretty good thing -- to get on with the task and get thework done."
O'Connor voted often with Rehnquist in her early years, when hewas the Court's most conservative member. Later, as chief justice, Rehnquistmoderated his position on some issues, and O'Connor did aswell. But as O'Connor entered her second decade on the Court, shebegan being pulled further left. Her voting patterns looked almost thesame, but they didn't tell the full story. Increasingly, she was holding theconservatives back, staying on their side, but refusing to embrace sweepingrulings. By the early 1990s, Rehnquist found himself losing her voteon many of the era's major cases, as O'Connor became more liberal.2Unlike Burger, who would invite O'Connor to tea when he wanted hervote, Rehnquist kept his distance.
As chief justice, Rehnquist rarely pushed the independent O'Connor,even when she sided with liberals on social issues. Despite theirlong friendship -- and the number of times he needed a fifth vote -- itwas a rare instance when Rehnquist picked up the phone to press hisviews. Conservative critics of Rehnquist grumbled that he wasn't put-ting his all into the job. He could have been more effective in managingO'Connor, they complained, instead of just standing by while hisfriend abandoned them on the cases they cared about the most.
It wasn't Rehnquist's style to lobby. Once, in Clarence Thomas's firstyear on the Court, the new justice was struggling with a case over theplight of thousands of Haitians who'd fled their war-torn country onboats for the United States. The George H.W. Bush administration orderedthe coast guard to intercept them and return them directly toHaiti. Lawyers asked the justices to step in and stop the coast guard.Thomas was anguished. He sympathized with the Haitians. He calledRehnquist for advice, and the chief referred Thomas to a favorite poemby Arthur Hugh Clough. "Say not the struggle naught availeth," thepoem begins, urging fortitude in the face of battle. It then ends on ahopeful note: "Westward look, the land is bright."
Thomas made a copy of the poem and slid it under the glass top ofhis desk, where he's kept it. He joined seven other justices and declinedto intervene in the plight of the Haitian boat people. "I am deeply concernedabout these allegations" of mistreatment in Haiti, Thomas wrotein a separate opinion explaining why the Court would not step in."However, this matter must be addressed by the political branches, forour role is limited to questions of law."3
When Rehnquist did press, he could be effective. He cared deeplyabout states' rights, and beginning in 1995 he'd convinced other justicesto join him in scaling back Congress's power. The Court generally wasdivided 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 hervote in a critically important states' rights case that challenged the federalViolence Against Women Act.4 The law allowed women to sue infederal 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 compelledto approach her. Although O'Connor typically sided with himon states' rights issues, she also strongly supported women's rights. Thecase forced her to choose sides between two of her causes, and supportersof the law urged O'Connor to take theirs. But Rehnquist was themore effective lobbyist. O'Connor called him in his chambers late oneafternoon to tell him she would be casting her vote with the chief. Hehung up the phone with satisfaction. "Well, we got it," he said.
But even in those states' rights cases when O'Connor remained withher chief, the other justices seemed to be pulling back. Ten years afterRehnquist first tried to lead a "federalism revolution," the justices heldup a stop sign and said that Congress could trump the states on law enforcementissues. The Court ruled that the federal government hadbroad powers to prohibit the use of marijuana for medical purposes,even if the states wanted to allow it.5 Antonin Scalia and AnthonyKennedy joined the Court's four liberals in supporting federal powerin the case.
That case, decided at the end of the 2004 term, effectively endedRehnquist's efforts to rein in Congress. Dying of cancer, he was inno 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 getthe chance to put his stamp on the Court. But Bush wouldn't immediatelychange its direction. He would be replacing a conservative withanother conservative, albeit a leader of his choosing.
That year had been difficult for the Court. Rehnquist, so stern in privatesettings, was a well-liked leader, and the justices had developed awarm and easy rapport over the years, even though they grappled withthe most divisive issues of the time. Liberal justice Ruth Bader Ginsburgaffectionately called Rehnquist "my chief," and as he deteriorated beforetheir eyes, they suffered along with him.
His illness was ever present. Even in the private conferences, Rehnquist'sbreathing was strained, and he frequently had to clear his tra-cheotomy tube. Some of the justices felt constrained from strongly disagreeingover the cases during those conferences. And the other justicesended up writing more opinions.
O'Connor had several important ones. Although she sided with theliberals to order the Ten Commandments removed from a countycourthouse,6 she wrote a blistering dissent in a landmark dispute overproperty rights.7 The liberal justices, joined once again by Justice AnthonyKennedy, had allowed a Connecticut town to force residents fromtheir homes so they could sell the land to developers and collect moreproperty taxes.
O'Connor said the decision meant "nothing is to prevent the statefrom replacing any Motel 6 with a Ritz-Carlton, any home with a shoppingmall, or any farm with a factory." Her opinion may have been inthe minority on the Court, but public outcry against the decision wasimmediate. Legislatures began passing laws to block the dire scenarioO'Connor predicted.
The trials of the 2004 term behind her, O'Connor seemed to belooking ahead to another year on the Court. She had hired her lawclerks for the next term, and had scheduled her public speeches so theydidn't conflict with the days the Court was in session.
With the end of June approaching, O'Connor went back to talk toRehnquist. He'd been coming to court every day, but she, like the otherjustices, still believed the chief would be retiring soon. She'd begun tothink she would spend one more year on the Court before retiring herself.Rehnquist had been emphatic in their earlier discussion: The Courtdidn't need two retirements at the same time. Her guess was that hewould 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, thatno 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 thestruggle naught availeth," went the words of his favorite poem. "Westwardlook, the land is bright."
Rehnquist was not ready to give up. But he then delivered a messageshe had heard before, this time with a stunning implication: "And Idon't think we need two vacancies."
O'Connor, the trailblazing jurist who was arguably the most powerfulwoman in America, was caught off guard. Rehnquist's implicationwas clear: She must retire now or be prepared to serve two more years.Her opinions had determined the direction of the Court, reshapedAmerican culture, and preserved the constitutional right to an abortion.But now Rehnquist, ravaged by cancer and desperately ill, was unilaterallydeciding both of their fates. He would stay, and she should eitherstep down now or be prepared to serve longer than she wanted.
The seventy-five-year-old O'Connor had been willing to remain anotheryear, but because of her husband's illness, that would be it. Sincethe day he'd met Sandra Day, John O'Connor III had spent his life providingunconditional love and support. Unlike his wife, he neverdoubted that O'Connor would get the nomination after she met withPresident 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 lostweight 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 theface of historic pressures. She soon received the answer: her husband.
Sandra O'Connor had always imagined that she and John would retireto Arizona, where they'd kept a home the entire time they'd livedin Washington. They'd spend more time with their grandchildren, onthe golf course, and traveling around the world. But now it was clearthat wouldn't happen. The face of retirement had changed. John wasbattling Alzheimer's, the same debilitating disease that crippled andkilled the president who had nominated O'Connor as an associate justicetwo decades earlier. It was her turn to support her husband, beforethe disease stole him from her for good.
She hadn't thought she'd be retiring at the end of the term, but itsoon started to sink in."Well, okay,"O'Connor said, deferring to her oldfriend and chief. "I'll retire then."
With that exchange, the fading Rehnquist delivered to conservativesthe vote they had craved for more than a decade. Now George W. Bushand his Republican Congress could begin the realignment of theSupreme Court. Bush would not be replacing a conservative with aconservative. He would replace the justice who often dictated the directionof the Court.
After twenty-four years on the Court, O'Connor had become thejustice to watch. Rehnquist may have occupied the center seat on thebench, but O'Connor was the justice in the middle. With the Court divided4-4 on critical issues, her vote often determined the outcome ofimportant cases. Lawyers crafted their arguments to appeal especiallyto her, knowing that as O'Connor went, so went the Court. So broadwas her power that journalists and law professors stopped talking aboutthe "Rehnquist Court." It was instead, they said, the "O'Connor Court."Her vote had preserved the constitutional right to an abortion8 and theuse of affirmative action in college admissions.9 Her vote had helpedkeep religion out of the public square.10
When O'Connor took her seat in the courtroom that last Mondayin June, she knew that William Rehnquist was staying put. She had reconciledthe events of the past month and, as she looked out on thepacked courtroom, understood that this day would likely be her last onthe bench. She may have been ambivalent about the timing, but "youmake 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 PresidentBush. "I wanted to convey one simple thing: that I'd decided toretire and that I respected the Court," O'Connor said.
But O'Connor also understood the power of her vote, and she anticipatedthe battle that would ensue over her successor. She planned totell Bush that she would remain on the bench until the Senate confirmedher replacement. She wasn't willing to risk leaving the Courtshort one member. She didn't want the Court deadlocked. "I did thatdeliberately," O'Connor said. "I had no intention of leaving the Courtin a mess. I chose those words deliberately."
Two days after the justices exited the courtroom, leaving Washingtonspeculating over when Rehnquist would quit, O'Connor called theCourt's marshal, Pamela Talkin, into her office. O'Connor had specificinstructions. She had a letter for President Bush. Talkin should keep itin the Court's safe until Friday, then deliver it to the White House.
Some of the justices have speculated privately that O'Connor waiteduntil Friday to announce her retirement in order to give Rehnquist achance 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 waybefore the news reporters descended. She had seen the crush of camerasoutside Rehnquist's home, camped out for a photograph on the dayof his expected retirement announcement. She was determined to avoidthat public spectacle.
Talkin, who is the first woman to oversee the Court's operationsand security as marshal, called White House Counsel Harriet Miers atthe White House the next day. Miers, Bush's longtime adviser fromTexas who'd come to Washington in 2001 to work in his administration,had become counsel only months before. But she knew the kind of justiceBush wanted to appoint, and she'd been involved in the discussionsover possible replacements for Rehnquist. The conversation didn't takelong. "I need to deliver something, a letter, from a justice," Talkintold Miers.
It was a call Miers had expected. All week the White House hadwaited for Rehnquist to make his announcement, and it had alreadylined 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 writtenthe letter. She agreed to hand-deliver the letter to Miers in the WhiteHouse the next morning at 10:30.
When Miers hung up the phone, she quickly notified Bush and VicePresident Dick Cheney, who were having lunch, and then told herdeputy, William Kelley. Only a few months into the White House job,Kelley had deep Supreme Court experience, having argued before theCourt as a lawyer in the Bush and Clinton administrations and havingserved as a law clerk to Burger and Scalia before that.
Most of the work was done. Top White House officials, includingCheney, had been interviewing possible nominees to replace Rehnquistfor the past two months, and they had winnowed down the list to ahandful. Kelley had played a critical role in analyzing prospective nomineesand their opinions and writings, to advise Bush on whether they'dremain solidly conservative once on the Court.
Talkin and officials in the court's public information office arrivedearly the next day, as did Miers and her team in the White House. Mierscalled Talkin again to ask if she could bring the letter fifteen minutesearlier than scheduled. Talkin agreed, and then she delivered the stunningnews. "The letter," she told Miers, "is from Justice O'Connor."
The revelation came as a jolt, but it would be a mistake to say thatMiers was shocked.With no news from Rehnquist, some -- notably theWeekly Standard's Bill Kristol -- had already speculated that it would beO'Connor who would step down. Seasoned Court watchers didn'tbelieve it, nor did O'Connor's friends. But Miers saw it as her job to anticipateevery 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. Noteven her three boys knew. She'd written them letters several days beforeand timed them to arrive at their homes Friday, when everyone elseheard the news. As Talkin was breaking the news to Miers, O'Connor'sfarewell letters were hitting the other justices' desks.
O'Connor's secretary called Ginsburg's chambers. "You're going toget a letter from Justice O'Connor," she said. "You should open itright away."
Ginsburg was stunned. Kennedy, upon getting the letter, walkeddown the hall and gave O'Connor a hug. Clarence Thomas quicklycalled his wife, Ginni, who worked at the conservative Heritage Foundation,with the news. Minutes later, Thomas called back and asked hiswife to urge her Heritage colleagues -- frustrated by years of O'Connoropinions -- not to say a negative word about her in the press.
Thomas, like the other justices, had grown fond of O'Connor. Dependingon the age of the justice, the pioneering O'Connor was invariablydescribed as a mother hen or a sister, the one who organizedtheir lunches and kept things moving along. Even as the Court took upcontentious issues that divided the justices as they divided the nation,the justices remained collegial. They credited O'Connor for much ofthat. They would miss her.
An hour later, one of the Court's Lincoln Town Car sedans whiskedTalkin down Pennsylvania Avenue and into the White House, where shehanded Miers the letter of resignation.
Before Talkin made it back to her office, Bush called the Court tospeak with O'Connor and thank her for her service. The two spokebriefly. Bush invited her to the White House, but she declined. She hada plane to catch.
"For an old ranching girl, you turned out pretty good," Bush toldO'Connor. "You're one of the great Americans."O'Connor found herself overcome with emotion, and her voicebegan to break.
"I wish I was there to hug you," Bush said.
Minutes later, O'Connor walked out of the courthouse with John ather 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 justicecould provide the deciding vote on cases involving abortion, affirmativeaction, 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, beginningunder the leadership of Earl Warren, the Court had confronted America'smost pressing social controversies. The Court showed little hesi-tation in interjecting itself into those disputes and attempting to solvethe nation's most vexing problems from the bench, even if that meantwresting them away from the state legislatures and the Congress.
In the 1950s, civil rights groups increasingly turned to the courts becauseelected officials did little or nothing to stop pervasive and virulentdiscrimination against African Americans. The Supreme Courtresponded 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 WarrenCourt ignored critics and intervened.
But the Court did not stop there. It began to see itself as a vital protectorof rights and liberties, including those not specifically addressedin the Constitution. It recognized greater rights for criminal defendants.It imposed limits on religious expression. It identified new constitutionalrights to privacy. Its role in American society grew. It becamea moral compass.
Liberals believed that was an entirely proper role for the Court, especiallysince the other branches of government had failed so miserablyin the area of civil rights. The Court was supposed to protect the rightsof the minority against the will of the majority. If judges would not,they said, perhaps no one would. That approach encouraged the justicesto identify new constitutional rights, especially in situations thedocument's framers could never have imagined two hundred years earlier.As society changed, the understanding of the Constitution shouldchange with it, liberals believed, and the justices should help fosterthe progression.
Conservatives saw a Supreme Court that had arrogantly grabbedpower for itself. By deciding those issues and creating new constitutionalrights, conservatives believed, the justices usurped the role ofelected officials, who were closer to the people and more accountablefor their decisions at the ballot box. That struck at the heart of democraticparticipation, they believed. After all, voters aggrieved by their elected officials could campaign for change. But if the Court's unelectedjudges made all the decisions, the electorate had no leverage and littleincentive to get involved in the debates.
As it happened, many politicians came to welcome the Court's interventionin contentious issues. It often saved them from making thetough calls. A politician could vote for extremely strict regulations onabortion, 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 sentimentduring a 2006 debate in his state legislature over whether to allow gaymarriage, an issue that had bitterly divided his constituents. "I'm justhoping and praying the courts will step in," he said.11
For four decades, Republican presidential candidates had campaignedon constraining the Supreme Court's role in American life.But once elected, they'd had little success in doing so. The Warren Courtsoared 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 Rehnquisttook over in 1986, conservatives assumed his Court would pullback. Instead, it merely slowed down the constitutional crank, withoutturning it back the other way.
Sandra Day O'Connor's retirement offered a long-awaited opportunityto finally change the Court's direction—but only if conservativesdidn't blunder through the process as they had in the past.
Justices -- especially presumed conservative ones -- have sometimessurprised the presidents who appointed them. Theodore Roosevelt saidhe could "carve out of a banana a Judge with more backbone" thanOliver Wendell Holmes. Harry Truman suffered a stinging setbackwhen two of his four appointees voted to strike down his claimsof presidential power to seize the nation's steel mills in 1952, and hecalled Justice Tom Clark "my biggest mistake." Dwight Eisenhowerreportedly said his two worst mistakes as president both sat on theSupreme Court: William Brennan and Earl Warren, who became theideological leaders of the most left-wing court in history. "Packing theSupreme Court simply can't be done," Truman said. "I've tried it, andit won't work."
Ronald Reagan made four appointments to the Supreme Court, buthe failed to reverse the legacy of the liberal Warren Court. Nor didRichard Nixon, who also nominated four justices, including Rehnquist.Nixon, like Reagan, deliberately made his nominations to reverse theCourt'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 comeand change forever the tenor of confirmation hearings.
Change does not come easily in an institution that, once set on itscourse, moves with all the speed and agility of an oil tanker.Rehnquist himself tried to explain in speeches in the mid-1980swhy presidents so often fail to transform the Supreme Court. Beyondlegal principles that can constrain justices from readily overturningprevious decisions, Rehnquist speculated that new issues come beforethe Court that the justices -- and the appointing president -- simplynever considered. Then there is public opinion. The justices work in aninsulated atmosphere in the courthouse, but they go home and read thepapers and talk about current events. Just as one planet can affect theorbit of another, public opinion "will likely have an effect upon the decisionof some of the cases decided within the courthouse," Rehnquistsaid in a 1986 speech.
But conservative leaders, long focused on turning those tides ofpublic opinion in their direction, have always grumbled that its influencealways pulls justices one way: toward liberal elites in the media,especially the editorial pages of the New York Times, and at lawschools, where most prominent academics see the Warren Court as thestandard-bearer.
The Rehnquist Court had proven deeply disappointing to the Right.Justices billed as conservative proved not to be; justices who were solidlyconservative shifted the court in unexpected ways. In both its reason-ing and results, the Court failed to live up to conservative expectationsand at times acted directly contrary to them. With seven Republican appointedjustices, the Rehnquist Court had refused to overturn Roe v.Wade, which guaranteed a woman's right to an abortion. It reaffirmedMiranda v. Arizona, a 5-4 Warren Court decision that required policeto give warnings against self-incrimination to criminal suspects in custody.12 It would not bring down the curtain on affirmative action.13 Itput greater restrictions on the death penalty14 and created new rightsfor gays and lesbians,15 expressly overturning earlier decisions in theprocess. It imposed sharper limits on presidential power than everbefore.16
By the end of Rehnquist's tenure as chief justice, his court was decidedlynot conservative. With O'Connor and Kennedy at its center, theCourt was willing to identify new rights in the Constitution and takeon all those nettlesome social issues that conservatives thought shouldbe decided by legislatures. The Rehnquist Court didn't hesitate to takeon the most hotly debated public issues of the time -- abortion, gayrights, affirmative action, the death penalty, presidential power, the separationof church and state. Sometimes the decisions were narrow.Sometimes the justices split the difference between two strongly arguedextremes.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 floutedethics laws, increased the size of government, and shown no disciplinein cutting runaway spending, the Supreme Court under Rehnquist wentastray from conservative legal principles. Over the years, the O'ConnorCourt became increasingly willing to inject the Court -- and theConstitution -- into explosive public disputes. The justices came to believethat judicial wisdom could help decide the right policy. Theiropinions didn't have the aggressively progressive tone of the WarrenCourt's decisions, which profoundly reshaped constitutional rights andprotections in criminal law, civil rights, race relations, free-speechrights, and religion, but they produced significant liberal victories.
That's not to suggest that the Court was liberal. If anything, it wasjurisprudentially unmoored. During Rehnquist's reign, the justices werein a constant struggle over which of their competing legal theories wasmost relevant. They had their own philosophies about the law, so theCourt could legitimately be characterized as liberal one day and conservativethe next. They tended to think of themselves as individualjustices first, and less like a court of nine working to find consensus inthe law. The Court was ideologically adrift, and its course usually dependedon which way O'Connor -- and to some extent, Kennedy -- chose to go.
More often than not, on the big cases involving contentious socialissues, O'Connor or Kennedy -- or both of them together -- would jointhe four liberals to rule against conservative positions. Only two of thejustices who took the liberal path were Democratic nominees. The otherfour were appointed by Republicans. President Ford appointed JohnPaul Stevens, a maverick whose vote became solidly liberal after hisfirst decade on the Court. Reagan tapped swing justices O'Connor andKennedy. George H.W. Bush selected David Souter, one of the Court'smost predictably liberal members.
As chief justice, Rehnquist was unable to build consensus and forgecoalitions on key cases, even with his old friend O'Connor. At times,the once-fiery dissenter seemed to care more about a case's outcomethan about the principled legal reasoning it took to get there, disappointingconservatives like Scalia, who would bluntly note the inconsistencies.In a 1998 case, Scalia accused the Court, with Rehnquistin the majority, of taking an approach it had specifically rejected onlythe year before. "The changes are attributable to nothing but the passageof time (not much time, at that), plus application of the ancientmaxim "That was then, this is now,' " Scalia wrote in a dissent joinedby Thomas.18
Unmoored as the Rehnquist Court appeared to be, however, fewwould argue that it was more expansive in granting rights thanthe Burger and Warren Courts would have been -- with the possibleexception, ironically, of Bush v. Gore, which ruled that the Floridarecount in the disputed 2000 presidential election violated equalprotection. During Rehnquist's remarkable thirty-three-year judicialcareer, he eventually molded other justices to his strong law enforcementviews. His Court imposed limits on affirmative action andnarrowed the use of redistricting designed to increase minority representation.It allowed more religious expression, including school vouchersfor parochial schools. He also led a Court that was more assertiveabout its own authority, and more willing than any other Court inmodern times to invalidate federal legislation that infringed on thestates' concerns.
But the Rehnquist Court didn't dig up the foundation cemented bymore left-leaning Courts and justices. Some of Rehnquist's victories, especiallyin scaling back congressional power over the states, had littlepractical impact. The way conservatives saw it, his Court did little to impedethe liberal agenda, and in many cases actively furthered it. Onone key social issue after another, the Rehnquist Court seemed bent onfrustrating those who had long dreamed of restoring the Court to whatthey saw as its proper place in the system of government.
Perhaps that is why most liberal criticism of the Supreme Court focusedmore on fears about where the Court was headed than where itactually stood toward the end of Rehnquist's tenure.
Academics have written about the Rehnquist Court's surprising liberallegacy. Some have attributed its shift left to the Court's ruling inBush v. Gore, which ended the bitterly contested 2000 presidential electionand handed the presidency to George W. Bush.19 That decisionopened the Court to withering criticism for deciding the case on politics,not law. Those denunciations may have made the Court's centristseven more wary of being cast as predictable conservatives, a concernthat would push the Court even further left in the remaining years ofRehnquist's tenure. But the suggestion that O'Connor and Kennedyvoted with the Court's liberals only in the years after Bush v. Gore, inorder to counter allegations by the media and law professors that theyhad been driven by rank partisanship, ignores a decade of their earlierrulings on social issues.
Still, the 2000 election was without question a watershed event forthe Court. The outcome of the race came down to fewer than a thousandvotes in Florida. Al Gore initially conceded defeat on electionnight when it appeared that Bush had carried the state and won thepresidency, but the balloting was so close, the stakes so high, that Gorewithdrew his concession and decided to challenge the results and askfor a partial recount.
The legal battle captivated the nation, as television networks airedendless images of election officials hand-counting the ballots, oftenholding them up to the light and squinting quizzically to discern thevote. Bush opposed the recount, arguing that it was illegal under statelaw and the federal Constitution. His partisans also made much of thefact that Gore and his lawyers had asked that a recount be conductednot in the entire state, but only in a few heavily Democratic Floridacounties where they suspected those squinting at hanging chads might"find" enough additional votes to hand the election to Gore. Lowercourts agreed with Bush, but the Florida Supreme Court ordered therecounts to continue.
Entire books have been written on the Supreme Court's decision inBush v. Gore, but the outcome is not that complicated. The five mostconservative justices joined together to block the recount of votes inFlorida, essentially calling the election for George W. Bush. The conservativesbelieved that the Florida Supreme Court had brazenlythumbed its nose at an earlier unanimous U.S. Supreme Court decisionby ordering the recounts to continue without any standards for conductingthem. The conservatives said the process was so arbitrary thatit violated basic concepts of equal protection, a secondary argumentBush's legal team had made. This was a startling decision from justiceswho had spent their careers resisting such broad constitutional claims.
The Court's four most liberal justices sided with Gore, refusing tojoin a more narrow opinion by Rehnquist that upbraided the FloridaSupreme Court for ignoring their directives. The liberals said the justicesshould stay out of the process and emphasized states' rights—thatthe Florida courts and the Florida officials should handle a recountwhich would determine the presidential contest. It was a stunning claimcoming from the four,who had vehemently opposed previous SupremeCourt 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 theconservative justices (though not their liberal counterparts) of decidingthe case based on their political views. Although every justice hadtaken a position at odds with his or her stance in the past, the blow toconservatives was particularly severe. The decision also seemed to representthe kind of result-driven outcome the conservative legal movementhad long opposed.
The conservative legal movement prided itself on strictly followingits methods of interpreting the Constitution, even when it produced resultsconservatives didn't like. But the unsigned opinion in Bush v. Goreseemed to many like a result-oriented approach, good for one day, andone case, only.
The Court's liberal justices still believe Bush v. Gore was a politicaldecision, and they privately question whether the outcome would havebeen the same if it had been Gore v. Bush, with the Republican candidatecalling for a recount. They contend that the Court would neverhave reviewed the case in the first place if the parties had been reversed.
But the conservative justices say politics didn't drive them. Kennedysays he took a long walk around the hallways of the Supreme Court andimagined how he would have seen the case if the parties had been reversed.He concluded that he would have decided it the same way. Theconservative justices believe that the country was in crisis, and they insistthat they had a duty to step in and make the hard decisions. TheFlorida Supreme Court was a rogue state court "off on a trip of itsown," as O'Connor puts it, ordering up recounts but without clear anduniform standards for doing it. The justices, she argues, had no choicebut to step in.
"A no-brainer! A state court deciding a federal constitutional issueabout the presidential election?" Kennedy exclaimed, in an interviewnearly six years later. "Of course you take the case."
The Supreme Court didn't ask to get involved, defenders likeKennedy 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 latersay the courts shouldn't intervene,"Kennedy says today. "We didn't saythe case should go to the court. Those were the other parties that madethat decision for us. And for us to say, 'Oh, we're not going to get involvedbecause we're too important,' well, you know, that's wrong."
O'Connor is less forceful in her analysis. She ruefully notes that subsequentmedia recounts of the disputed ballots indicated Bush wouldhave won Florida.20 The outcome would have been the same, she says,even without the Supreme Court's involvement. "It's not correct to saythe Court determined the result. The voters determined the result, andit never changed,"O'Connor says today. "Could we have done a betterjob? Probably. But it wouldn't have changed the result."
Whether the decision elected a president or not -- and mediarecounts of ballots in the contested counties support O'Connor'scontention -- this was a Court that possessed a sweeping sense of its rolein refereeing disputes of enormous national importance. A judicial approachthat had infuriated and motivated conservatives for decadeswas entirely pleasing to them as Bush v. Gore unfolded. And if the conservativejustices were driven by a political or ideological motive to rulein a way that guaranteed Bush's election, their decision paid multipledividends. It gave the new president a chance to appoint two or threejustices who would hold a much more restrictive view of their roles onthe bench.
The Court stayed together for five years after Bush v. Gore, denyingGeorge W. Bush a nomination in his first term. In that time, the Court'smoderates embraced sweeping liberal rulings on key social issues, furtherdisappointing conservatives. With Sandra Day O'Connor's retirement,Bush would now have the chance to succeed where his father andso many other Republican presidents had failed. If he got it right, hecould make history. The burden of reshaping the Supreme Court wouldbe placed on Bush's administration and his GOP majority in the Senate.The battle for the Supreme Court's future was about to begin.