APRIL 28, 2013
SANDRA DAY O’CONNOR spent some of her childhood riding horses and helping out with the chores on her family’s ranch in Arizona. She later wrote frankly about her “rough and tumble childhood” in a memoir of her early years, Lazy B: Growing Up on A Cattle Ranch in the American Southwest (2003). So it’s perhaps not surprising that her latest book, Out of Order: Stories from the History of the Supreme Court, is such a refreshingly straight-forward, down-to-earth, and readable account of our nation’s highest court from its earliest days to the present. Her goal, she acknowledges, was simply to “write about aspects of the Court’s rich heritage that interested and inspired me,” which is exactly what she’s done.
In a mere 165 pages (there are also two appendices: the Declaration of Independence and the United States Constitution), O’Connor manages to give the reader a surprisingly full understanding of the court’s history, its early life and impact on our nation, its most significant rulings, its evolution, and its growth in stature in American jurisprudence over the more than 200 years of its existence. Along the way we get a taste of what it was like to be a Supreme Court justice “riding the circuit” in the court’s early days; learn of the political fall-out from some of its most controversial rulings; and, although it largely avoids unkind musings about the hundreds of justices who’ve donned the court’s robes over the years, we nevertheless learn humanizing facts about many, some less flattering than others. In her account of Justice Douglas and his four marriages, for instance, O’Connor is careful to note that each one was to a younger woman than the last; but she also recounts his rugged life style and the fact that he made sure his tomb stone read simply, “William O. Douglas, Private, United States Army.”
In the book’s first chapter, she explains, in simple yet comprehensive terms, why the case of Marbury v. Madison, studied by every first-year law student, was one of the court’s most important decisions. “Many say that the case, which came to stand for the authority of the Court to review the acts of political branches, might as well have been captioned Marshall v. Jefferson,” since Supreme Court Justice Marshall and President Thomas Jefferson despised each other and weren’t shy about saying so. Of course, Jefferson hasn’t been the only president unhappy with the fact that the court can strike down acts by the president as surely as it can by the Congress.
In that same chapter she explains thoroughly yet briefly FDR’s famous “Court-packing scheme.” And in this matter, as with virtually every other controversy she discusses in the book, despite what we might suspect based upon her own rulings while on the court, she remains eminently fair and impartial. Roosevelt was furious over the fact that the court was giving a “thumbs down” to virtually all of his New Deal legislation. And while Roosevelt’s answer to that was a clear attempt to go around the sitting justices by expanding the court with justices more to his liking, O’Connor notes that:
To be fair, Roosevelt wasn’t just imagining things. In the 140 years between 1790 and 1930, the Court had overruled only sixty acts of congress. Yet during Roosevelt’s first term alone, 1933–37, the Court overruled twelve acts — and some of those were the President’s favorites!
O’Connor authored the majority opinion in an extremely important recent case having to do with a president’s power, in this instance in time of war. In Hamdi v. Rumsfeld (2004), the court held that:
a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.
One can only wonder what O’Connor thinks of President Obama’s actions in not merely imprisoning, but also ordering the execution of the American-born US citizen Anwar al-Awlaki, a Muslim cleric, without the slightest hint of due process, on behalf of this country’s “war on terrorism.” But in this matter, as with virtually all others in the book, we get not a hint of her view on the issue. Perhaps this is to be expected from a former justice who proved to be, at least in most instances, a cautious and moderate member of the court.
In the court’s earliest days, the job of Supreme Court justice was not all that exalted. In the beginning, Justices not only had to render decisions on a mind-numbing mountain of cases, but, when the court was not in session, “ride the circuit” amongst lower federal courts, sometimes literally riding great distances on horseback to do so. They presided over lower court trials far from their homes, and were forced to stay in shabby lodgings and eat poor food to boot. O’Connor notes that some court-watchers today think reestablishing the requirement that the Justices “ride the circuit” when the court is not in session might be a good way to “keep them more in touch with the people,” an idea that appeals to this reviewer. In his dissent in Romer v. Evans (1996), a case that involved a Colorado statute banning laws recognizing gay people as a protected class, Justice Antonin Scalia, wrote:
I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct.
Perhaps if Scalia were “more in touch with the people,” he’d learn that most people of this country, his country, know the difference between murder and homosexuality. And the same might be said of Justice Kennedy, who, during recent oral arguments before the court on the Defense of Marriage Act and California’s Prop 8, demonstrated his ignorance of what present-day social scientists have to say about the well-being of children raised in same-sex households, or for how long they’ve known it, when he said that same-sex marriage takes us into “uncharted waters.”
O’Connor takes pains to explain how, for the first century of its life, the court had to hear every case that was appealed to it from the lower courts. This led to long delays in rendering decisions and a less-than-thorough regard for every case that came before the court. But over the decades the court’s caseload has continued to shrink –– not expand, as many might think. When O’Connor joined the court in 1981, the court took about 160 cases a year. Now it only takes around 90. And that’s only 90 cases out of about 8,000 petitions asking the court to review a lower court decision.
This has insured that cases go more quickly through the Supreme Court now than in decades past. In its early days lawyers before the court could continue their oral arguments for hours and, indeed, days; now each side is limited to 30 minutes. In its earliest days, only two lawyers were actually admitted to practice before the court, but long-winded members of Congress could also argue the cases, thereby leading to the great backlog of undecided cases. However, some of the greatest orators in American history also appeared before the court. O’Connor notes that in Dartmouth College v. Woodward (1819), Daniel Webster was so moved by his own oratory on behalf of his beloved college that by the close of his argument he was in tears, as was Chief Justice Marshall. O’Connor contrasts the florid oratory of lawyers before the court in its early years with that of today. She credits then-private attorney Thurgood Marshall with promoting a more concise and reasoned form of oral argument before the court. Marshall’s measured and well-reasoned argument in Brown v. Board of Education (1954) contrasted sharply with that of segregation’s proponent in the case, John W. Davis, another lawyer whose cheeks were wet with tears when he finished his argument in defense of “separate but equal.” Of the so-called “landmark” opinions rendered by the court, O’Connor gives prime place to Brown:
There is no case more important in the country’s history than Brown v. Board of Education, of course, because it rejected the Plessy doctrine of “separate but equal” and promised the integration of black people, who had been treated as less than full citizens.
Not all is high legal drama in the book. Much of what O’Connor has chosen to write about is the more personal side of the court and of those who have sat on it, as well as its sometimes odd customs. O’Connor doesn’t spend a great deal of time rating the justices, except to note that while Justice Oliver Wendell Holmes “is universally considered one of the greatest Justices of all time,” Justice James McReynolds, by contrast, is commonly regarded as one of the worst to ever sit on the Supreme Court. Virulently anti-Semitic and opposed to the New Deal, his reputation stemmed from his “astonishingly mean and bigoted character.”
The justices can have fun. Justice Rehnquist was the prankster on the court who, on one occasion, had a life-sized cutout made of Justice Burger and offered tourists a chance to have their picture taken with it. In 2005, a law professor combed through the 75 oral argument transcripts from the court’s 2004 term and, “calculating each Justice’s ‘Laughter Episodes Instigated Per Argument Average,’ or LEIPAA,” ranked the Justices from funniest to least funny; Justice Antonin Scalia “won by a landslide,” leading The New York Times to dub him the “funniest justice.” Among the often-stuffy court customs O’Connor writes about, we learn of the annual “parody” of the justices the court clerks are instructed to put on for the court and court press corps. And that the most junior justice has the responsibility for food in the court’s cafeteria. In keeping with that custom, Justice Kagan recently introduced frozen yogurt and pretzels to the Supreme Court cafeteria’s menu.
The justices gather every day after oral argument for a shared lunch, during which time the work of the court is not to be discussed. When the justices do meet in private conference to discuss the cases, it’s the order of seniority that dictates who speaks first and votes first. And, of course, seniority dictates the important matter of who is assigned to write the court’s opinions, with the senior judge in the majority assigning that task.
Throughout the book, O’Connor is scrupulous in refraining from even a hint of back-chambers animosity between the justices. Surely they must sometimes, during case discussions, let slip an unkind remark or two that another justice might take personally. Surely there must be some jealousies amongst those nine egos. Surely if some dissent has been particularly sharp and obviously aimed at the author of the majority opinion, some feathers must ruffle. But if so, you won’t learn about it in this book.
We also learn precious little about Justice O’Connor herself, or where she might stand today on the various contentious issues that come before the court. This is not unexpected but nevertheless disappointing. After all, the reader can’t help but wonder if, given her view that Brown v. Board of Education is the court’s most important ruling, she would not then support same-sex marriage, giving full marriage rights, regardless of sexual orientation, to those seeking to enjoy the full benefits of this critically important societal institution.
Late in the book O’Connor explains the role and duties of the most junior justice. She explains that the junior justice must always be the last to enter the courtroom. And, “[m]ost notably,” she writes:
[T]he junior Justice serves as the link between the confidential world of the Conference [where the cases are being considered] –– attended only by the nine sitting members of the Court –– and the world of the Court beyond the Conference walls. Two most significant duties associated with this role are answering the door when Court personnel knock and delivering outgoing messages from Justices to attendants waiting beyond the door.
She then goes on to note that when she replaced Justice Stevens as the junior justice, other justices wondered if she would be offended as a woman by being delegated such “unglamourous duties.” But, she tells us, Justice Stevens spoke right up, saying he was certain “she would not want to be treated differently from any other Justice.” And, she notes, he was right. O’Connor was very proud to be nominated to the court, and was certainly mindful of her historical role as the court’s first female justice, but that is as close as we get to what was going through her mind about it.
Throughout Out of Order, Justice O’Connor’s obvious reverence for the court and our nation’s system of governance comes through so clearly that, by the book’s end, the reader is half-tempted not to close the book without reading the Constitution and the Declaration of Independence in the book’s appendices. Indeed, at this moment in our nation’s political life, when both of these founding documents seem overly malleable in the hands of those who would twist their words and meaning to glorify a time in our past that never actually existed, perhaps reading these two documents should be required reading for us all.
Jim Lafferty is the Executive Director of the National Lawyers Guild in Los Angeles.