The Oath: The Obama White House v. The Supreme Court

by Jeffrey Toobin

  The spring of 2010 was a tense and uncertain time at the Court. The reality of Stevens’s impending departure was sinking in. He would be leaving after thirty-five years, just short of William O. Douglas’s record tenure. Because Stevens had spent so much time in Florida, he was a remote figure, even to some of his colleagues. Nevertheless, he had gone out of his way to welcome Sotomayor in her first year and had struck up a friendship with Alito as well. Stevens had a polite and respectful relationship with Roberts, which was inevitably colored by their disagreements in almost every major case. Decades of legal duels had poisoned the relationship between Stevens and Scalia. Still, no sitting justice had known a Court without JPS. It was difficult, and a little painful, to imagine one.

  A worse problem for the Supreme Court family was Marty Ginsburg’s illness. He was universally beloved. As a law professor and high-powered lawyer himself, he could speak to the justices as a relative equal; as a gregarious and self-deprecating spouse, he could welcome their wives (and O’Connor’s husband) as a peer as well. He was a terrific cook whose talents nearly everyone in the Court building enjoyed at one time or another. His cancer, once seemingly in remission, had returned. He died on Sunday, June 27, 2010, at the Ginsburgs’ home at the Watergate. It was one day before the final day of the Court’s term.

  Most of the time, the real operations of the Supreme Court take place behind the scenes. Sometimes, though, the public has a window into the very soul of the institution. Monday, June 28, was such a day. The judicial, the political, the personal, and the ceremonial—all were on display.

  Even on Monday morning, no one knew for sure how the day would unfold. As news of Marty’s death spread, it was unclear whether Justice Ginsburg would appear in Court the following day. Most of her colleagues assumed not, especially since Jewish tradition calls for immediate burial of the dead. But since Ruth, as a girl, saw women excluded from the minyan for her father, she never paid a great deal of attention to the formal rituals of her religion. The funeral would be Tuesday, at Arlington Cemetery, with full military honors. (Several mourners saw an amused Marty Ginsburg wink in the selection of the location. He tended to discuss his tenure at Fort Sill chiefly as the time he learned to cook.) On Monday, Ruth went to work.

  The audience in the courtroom almost gasped when she appeared from behind the curtain at the stroke of ten. Her hair was pulled back with a black ribbon, her eyes downcast. Roberts said, “It is my very sad duty to announce that Martin David Ginsburg, husband of our colleague Justice Ruth Bader Ginsburg, died yesterday, June 27, 2010, at home in Washington, D.C.” The chief went on to give a brief summary of Marty’s life, including his “sharp wit and engaging charm.” Roberts was extremely good at this sort of speech, much better than Rehnquist, who tended to mumble and rush through ceremonial occasions. As Roberts spoke, Scalia wept. The Ginsburg and Scalia families had celebrated every New Year’s Eve together since the two judges were on the D.C. Circuit together. To the amazement of their friends, the families had never let politics come between them.

  But this was a working session of the Court—the most important one of the year. Alito read the first opinion, McDonald v. Chicago, the victory for gun rights. Breyer, as was his custom, grimaced and rolled his eyes as his colleague spoke, and then read his dissent from the bench. Ginsburg had the next opinion, a case that held that a Christian student organization at a public law school could not bar gay students from attending their meetings. Her voice was unaffected by her ordeal.

  Roberts went last, in a case where the Court, 5–4, struck down a minor provision of the Sarbanes-Oxley law, which was passed in the wake of the Enron accounting scandal. The decision involved only a small piece of economic regulation, but Roberts’s characteristically eloquent opinion gave a clear sense of which way he wanted the Court to move in the future:

  One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people. This concern is largely absent from the dissent’s paean to the administrative state.

  Of course, it was Breyer—bureaucracy’s best friend on the Court—who wrote the dissent. And he read it from the bench, too, scolding Roberts that “judicial opinions are not tickets for one ride in one day on one train. They have principle in all this.” It was an echo of the dissenting opinions in Bush v. Gore.

  All that was left for the Court was to say good-bye to John Paul Stevens. Roberts read a letter, signed by all the current justices, as well as Souter and O’Connor, saluting his long tenure and his commitment to justice. “Justice Stevens, we will allow you time for rebuttal,” Roberts said with a smile.

  Stevens said that when he joined the Court in 1975 he would have addressed the other justices as “Dear Brethren.” Instead Stevens said, “Dear Colleagues, Collegiality and independence characterize our common endeavor. I thank you for your kind words. Far more importantly, Maryan and I thank each of you and each of your spouses—present and departed—for your warm and enduring friendship. It has been an honor and a privilege to share custodial responsibility for a great institution with the eight of you and with ten of your predecessors.” With midwestern reserve, Stevens’s voice never broke. Roberts then adjourned the Court until the first Monday in October.

  A dinner had been arranged for that night, where the current and retired justices would pay tribute to Stevens on his final day on the bench. Both the chief justice and Stevens offered to cancel the event in deference to Marty Ginsburg’s death, but Justice Ginsburg insisted that the event proceed, even though she herself chose not to go. Maryan Stevens was not well enough to attend, and it was, on the whole, a depressing occasion. The justices were tired, sad, grumpy, and frustrated.

  No one, though, was as downcast as Sandra Day O’Connor.

  16

  THE RETIRED JUSTICES DISSENT

  She was still the most famous justice. She had been retired for five years, but she was stopped for autographs every day. Always—always—parents introduced their daughters to Sandra Day O’Connor. Some people wept. There were nine justices on the Supreme Court, but people recognized O’Connor more than any of them—which was not surprising, since she was the most influential woman in American history. And in keeping with her remarkable life, O’Connor figured out a new way to be a retired Supreme Court justice, too.

  In recent decades, Supreme Court justices had all done the same thing in retirement: they died, usually sooner rather than later. But O’Connor was only seventy-five in 2005—not especially old for a justice—and in good health. She loved the job. She reveled in her role as the swing justice. But she decided to quit anyway.

  It was because of her husband, John O’Connor. John had been a successful lawyer in Phoenix, but his career never really took off after Sandra was appointed to the Court and the couple moved to Washington in 1981. If John ever felt resentment for being an especially well-known trailing spouse, he never made it apparent. He was an enthusiastic, almost giddy, backer of his wife’s career. (So was Marty Ginsburg for Ruth.) For many years, however, John had been displaying symptoms of what was eventually diagnosed as Alzheimer’s disease. The signs were barely visible outside the O’Connor family at first, but his decline accelerated in the new millennium. In 2003, Sandra started bringing him to Court on most days; he sat on the sofa in her outer office while she worked. Then, in 2004, John started wandering away, which is a common and dangerous problem for Alzheimer’s patients. The situation was becoming unmanageable.

  So in the spring of 2005, O’Connor went to see Rehnquist, who was trying to recover from thyroid cancer. She explained that she was considering leaving the Court to take care of John. O’Connor knew that n
either she nor Rehnquist wanted to leave the Court with two vacancies. Who should leave first? Was Rehnquist thinking of retiring?

  It was an extraordinary moment in an extraordinary friendship. They had known each other for more than five decades. Law school classmates at Stanford, they both decided to settle in the nascent metropolis of Phoenix. There, they went to the same pool parties with their young families. Somehow, improbably, they both wound up on the Supreme Court, Rehnquist in 1972, O’Connor nine years later. Her insistent moderation cost him several of his most precious goals—like overturning Roe v. Wade and ending affirmative action. But the affection between them never dimmed.

  O’Connor was expecting Rehnquist to say that he would step down; though she didn’t know the details, O’Connor could tell that he was desperately ill. But the chief told his old friend that he was going to try to hang on. He did not plan to retire and hoped soon to return to work.

  That left O’Connor with an excruciating dilemma. No one had loved her role as much as O’Connor had, and she was more than capable of continuing to do the job. She didn’t want to leave. But she thought John needed her, and that trumped her other misgivings. Over the years, many male members of the Court had nursed their wives through illnesses, but few if any considered leaving the Court to provide the care. In a way, this decision made O’Connor one more kind of pioneer.

  On July 1, 2005, O’Connor announced her decision to resign, to be effective upon the confirmation of her successor. None of her colleagues except Rehnquist knew it was coming. Without exception, they were stunned.

  What followed was, to use a favorite O’Connor expression, “a mess.” George W. Bush nominated Roberts to replace her. Then, over Labor Day weekend, Rehnquist succumbed to cancer, and Bush named Roberts to be chief justice. After Roberts was confirmed, Bush nominated Harriet Miers to replace O’Connor. Miers was grievously underqualified, and her selection turned into a tragicomedy that took several weeks to open and close. Months after O’Connor announced her resignation, there was still no replacement. It was not until November that Bush sent Alito’s name to the Senate.

  O’Connor’s frustrations mounted. The delays were maddening. O’Connor was a planner, a doer, a control freak of sorts. She was the kind of person who took it upon herself to choreograph her law clerks’ lives as well as her own life. Three mornings a week, her female clerks were expected to join her for aerobics on the basketball court on the top floor of the building. (Male clerks were often instructed to lose weight by other means.) O’Connor arranged for special access to exhibits at the National Gallery, and attendance for clerks was not optional. In her Arizona days, O’Connor had proudly worn the nickname the Yenta of Paradise Valley, and later she was not shy about encouraging her clerks to experience the joys of married life. Now, finally, she wanted nothing more than to leave the Court and take care of her own husband, and circumstances kept conspiring to prevent her from doing so.

  And now it was up to George W. Bush to reshape her Court. O’Connor had voted with the majority in Bush v. Gore, but she came to regard the presidency that she and her colleagues had delivered to the country as a disaster. On one of her final days on the Court, O’Connor was explaining her decision to leave to David Souter, as the two of them stood outside her chambers. “What makes this harder,” O’Connor told Souter, “is that it’s my party that’s destroying the country.”

  O’Connor’s bill of particulars against Bush was extensive. “He’s destroying the military with adventures that we aren’t prepared for,” she said, for the war in Iraq was going poorly. “We’ve got colossal deficit spending, and the only way he got reelected was by getting states to vote on same-sex marriage.

  “I thought Republicans stood for a strong military, a balanced budget—and Barry Goldwater never gave a damn who you slept with,” O’Connor went on. “Bush repudiated all of that.” Her Republican Party—and Souter’s—was gone. Her alienation had deepened during the Terri Schiavo case. There, Republicans in Congress had rushed through a bill to force a federal judge to reexamine the case of a critically ill woman in Florida. This perverse turn on “pro-life” politics had a particularly ugly resonance for O’Connor, who was herself making decisions for the care of her husband.

  At long last, on January 31, 2006, the Senate confirmed Alito and Sandra O’Connor could step down to be with John.

  O’Connor’s departure was bittersweet in the extreme. During the months between her announced departure from the Court and her actual retirement, John slipped completely into the grip of Alzheimer’s. He no longer recognized his wife of nearly fifty-four years. O’Connor and their three sons made the painful decision to move John to a long-term-care facility in Phoenix.

  O’Connor handled even that experience in a groundbreaking way. In November 2007, Veronica Sanchez, a television news reporter in Phoenix, called a local nursing home to do a report on “mistaken attachments” among patients with Alzheimer’s disease. With this syndrome, patients can forget their relationships with their spouses and other family members and “fall in love” with the people they see every day, usually other patients. At the last minute, Sanchez’s story fell apart, and she was directed to another facility, the Huger Mercy Living Center, where she was told two families had agreed to tell their story on camera. Sandra Day O’Connor’s family was one of them.

  Sanchez wound up interviewing the O’Connors’ son Scott, who lives in Phoenix, and he allowed John to be shown on camera with the woman who was the object of his affection. The story caused a worldwide sensation. A few months later, O’Connor herself testified before the Senate Special Committee on Aging. She said Alzheimer’s was “a subject that is very dear to my heart and to the hearts of the millions of American families who love and provide care to relatives who have Alzheimer’s disease. As you know, I became one of these caregivers in 1990, when my husband, John, was diagnosed with Alzheimer’s. Living with this disease has been sad and difficult for my entire family.” (The date of John’s diagnosis had never before been made public.) O’Connor asked the senators for additional funding for research on the disease and its effects on the families of its victims. John O’Connor died on November 11, 2009.

  This kind of work was, of course, admirable and courageous, as well as politically uncontroversial. But O’Connor also had other ideas for how to spend an unquiet retirement.

  ——

  In part, O’Connor did the traditional work of retired justices. She continued to sit occasionally as a judge on the various circuit courts of appeals. (When she did, the benches for spectators were always filled.) She also took up the cause of civics education in schools. Horrified that two-thirds of American adults could not name all three branches of government (and a third could not name even one), O’Connor started traveling around the country advocating that public schools restore civics to a more prominent place in their curriculums. She founded and became the public face of a nonprofit organization, iCivics, that produced lesson plans and Web games to promote civics education. During her tenure on the Court, O’Connor traveled more and gave more speeches than any of her colleagues, and her schedule barely slackened during her retirement.

  O’Connor had another cause, too, which she called judicial independence. At one level, the issue seemed almost bland, like literacy or nutrition, the kind of concern that a First Lady might embrace. O’Connor had been the nation’s best-known judge, so it might seem natural that she would go on to speak out on behalf of fellow members of her profession. In fact, judicial independence, especially O’Connor’s version of it, was an intensely partisan subject—and the former justice had very much chosen sides.

  The history of judicial selection has tracked larger themes in American history. The Constitution invested the president with the power to nominate all federal judges, with the “advice and consent” of the Senate. That system has never changed. However, in state courts, where the great majority of civil and criminal lawsuits are resolved, the systems had evolved a
great deal over time. In the Jacksonian era, before the Civil War, most states moved to electing judges, which was perceived as a form of bringing democracy to the courts. By the Progressive era, this system was under criticism, because elections were largely under the control of political parties, which were often corrupt. Progressives created “merit selection” systems, which usually involved the appointment of judges by governors or even independent panels; these systems sometimes included retention elections, where voters had the right to evict judges every few years. The “Missouri plan,” adopted in 1940, gave the power to nominate judges to an independent commission, and allowed the governor to select from the commission’s list. Many states adopted a version of this plan. Thirty-nine states have judicial elections for at least some judgeships.

  The politics of judicial elections changed in the 1980s. Business interests began lining up behind Republican candidates who promised to limit tort awards; plaintiffs’ trial lawyers, with fewer resources, began subsidizing Democrats. Elections, especially for state supreme courts, started to cost millions of dollars. Overall, Republicans thrived, especially in the South. (Karl Rove first became famous because his campaigns turned the Texas Supreme Court from all Democratic to all Republican.) Later, social conservatives joined business conservatives in pushing for Republican judges—and for moving states from systems of appointed judges to those of elected judges.