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 neither 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.
In short, by the time O’Connor took up the cause of judicial independence, the partisan battle lines were clearly drawn on the issue. Republicans supported judicial elections; Democrats wanted appointive systems. O’Connor joined the Democratic side, loudly and passionately. Earlier in her tenure, she was more ambivalent about these issues, but her embrace of judicial independence paralleled her move to the left on a variety of other matters. O’Connor’s passion for the issue reflected her own experience as an elected official—real-world experience that was keenly missed at the Court. She knew what it was like to raise money for elections, and she knew how money could corrupt the judicial process. It was not an abstraction to her. She understood how political decisions were made, and she could communicate the earthy reality in a characteristically direct way. Urging the members of a state bar association to lobby for more funding for the courts, she told them, “Make sure to drop in some sob stories. If things get really bad, buy some beer and Mexican food, and have them all over.” (O’Connor herself, who enjoyed a scotch, was fond of quoting her husband: “You don’t have to have a drink to have a good time, but why take the chance?”)
O’Connor stepped into one of the hottest political fights in the nation in 2010. The previous year, the Iowa Supreme Court had ruled unanimously that the Iowa constitution required that same-sex couples be allowed to marry. Three of those justices happened to be facing retention elections in 2010, and a conservative Republican activist organized a campaign to defeat them. Alone among national public figures, O’Connor traveled to Iowa to defend the three judges. “Justice Souter and I both look at the Court as the one safe place where a person can have a fair and impartial hearing to resolve a legal issue, and we have to keep that,” O’Connor said. “We have to address the pressures being applied to that one safe place … to have it where judges are not subject to outright retaliation.” Despite O’Connor’s efforts, all three of the Iowa justices were voted out of office. (In Iowa, O’Connor described her mission as supporting judicial independence, not same-sex marriage per se. Her views on gay rights had evolved enormously, too. In 1986, O’Connor had voted with the majority in Bowers v. Hardwick, which upheld a Georgia prosecution of a gay man for having consensual sex. In 2003, in Lawrence v. Texas, O’Connor was part of the majority that overturned Bowers. By 2010, there was little doubt that O’Connor favored full equality, including marriage rights, for gay people.)
In Nevada, also in 2010, O’Connor’s venture into electoral politics turned into an embarrassment. Shortly before the election, she went to Las Vegas to support a ballot initiative that would have moved the state to a primarily appointive system for judges. Through a series of snafus, supporters of the initiative used O’Connor’s voice on robocalls that went out to about 50,000 voters—in the middle of the night. (One woman called the local newspaper to complain that, since she had a son in intensive care, she thought the call meant that he had died.) Through the Supreme Court public affairs office, O’Connor put out a statement that she had not authorized the use of her voice in this way. In any event, O’Connor’s side in the initiative lost.
The change in O’Connor’s circumstances was striking. She had gone from being one of the most powerful people in the country to an itinerant speechmaker who was not nearly as sure in her footing as a political player as she had been as a judge. O’Connor placed herself in an awkward position by taking such an outspoken role in elective campaigns. She had retired from the Supreme Court but remained a federal judge. Conservatives complained that she had violated ethical norms. She hadn’t—the rules were vague—but the questions were unpleasant. She weathered them and went right back out on the road. O’Connor could have done what most retired justices do—pick up an honorary degree here or there, teach a class every once in a while. But O’Connor saw what was happening to her country—and her Court—and she couldn’t let go.
O’Connor had an unusual conversational tic. She divided the world into things (and people) that were “attractive” and “unattractive.” The distinction had little to do with appearance, but more with O’Connor’s general sense of how things would be perceived in the world. O’Connor kept up her politician’s radar for public sentiment. When the Court abruptly changed course and overruled its prior decisions, that was unattractive. Colin Powell was attractive. John Ashcroft was unattractive.
John Roberts was the very definition of attractive. When he became chief justice, O’Connor already knew him as a skilled and accomplished oral advocate before the Court. She was dazzled, like so many others, by his graceful and learned testimony before the Senate Judiciary Committee. O’Connor overlapped with Roberts for only about four months on the Court—from October 2005 to January 2006—but it was long enough for her to be enchanted with his debut. She told the story of his graceful handling of the exploding lightbulb all the time and went so far as to write a gushy tribute to the new chief justice in Time. “The stars must have been aligned that January morning in 1955 when John G. Roberts Jr. was born in Buffalo, N.Y., because almost everything thereafter led him straight to the Supreme Court of the U.S.,” the story began. The new chief justice had made the transition to the Court “seamlessly and effectively,” she wrote, concluding, “I’m certain he will serve a long tenure in the role and be an effective leader not only for the Supreme Court but for all the federal courts in the nation.”
Then O’Connor started seeing the decisions. It wasn’t one, or two, or even three of them. Abortion, civil rights, women’s rights—it was as if the Roberts Court had made a special project of targeting O’Connor’s legacy in particular. Hers had been the crucial vote in Casey in 1992 to save the core of Roe v. Wade—and then Gonzales v. Carhart jeopardized it. O’Connor had preserved affirmative action in Grutter in 2003—and Roberts belittled it in Parents Involved, the Seattle school integration case. O’Connor had projected onto Roberts her idea of what a chief justice, and what a Republican, should be. But if she had chosen to look more closely, it was always clear that Roberts reflected his own era of the Republican Party, not O’Connor’s.
In private, O’Connor had a disparaging word for what she saw in Roberts—an agenda. Rehnquist was different, she said. He had taken each case one at a time; he had not tried to force his vision of the Constitution on the Court. This was actually revisionist history on O’Connor’s part. Rehnquist was just about as conservative as Roberts was, but Rehnquist didn’t have the votes to enact his agenda. Roberts, in most cases, did. (In slightly different ways, O’Connor, Souter, Ginsburg, Breyer, and even Stevens all created a kind of posthumous cult of William Rehnquist. He was moderate! He played fair! He respected precedent! Rehnquist was great! Those were the good old days! These reimaginings of him had more to do with these justices’ distaste for Roberts than with a realistic assessment of Rehnquist.)
Mostly O’Connor kept her views about the Roberts Court private. Given her wide circle of friends, frequent travels, and outgoing nature, her opinions were hardly a secret. But Citizens United prompted her to shed her public reserve. The main reason the retired O’Connor had come to favor an appointive judiciary over an elected one was to limit the power of money in campaigns. And here the Court was casting aside decades of limits on campaign finance. “This rise in judicial campaigning makes last week’s decision in Citizens United a problem, an increasing problem, for maintaining an independent judiciary,” O’Connor said at a conference at Georgetown University Law Center just a few days after the decision. “No state can possibly benefit from having that much money injected into a political campaign.” Like Carhart II, the partial-birth abortion case, Citizens United illustrated the importance of the Alito-for-O’Connor shift on the Court. If she had remained, that 5–4 decision would have gone the other way.
But as she knew better than anyone, O’Connor had left the Court, and she had to live with the consequences of her decision. Her health was still good, but midway through her ninth decade, she was more prickly and less patient than she used to be. There were two questions that she especially disdained, and she was asked them all the time. The first was about Bush v. Gore. Did she think she voted the right way? “It wasn’t the end of the world,” she said, in a typical response, at a conference in Aspen. “They had recounts of the votes in four counties by the press, and it did not change the outcome at all. So forget it. It’s over!” Her defensiveness invited speculation about the state of her conscience on the subject.
The other question was whether she regretted stepping down from the Court. To know O’Connor was to recognize that she did not traffic in regrets. The rancher’s daughter had no truck with whining about what might have been. Asked about what the Roberts Court had done to her legacy, she said at one point, “What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear.’ But life goes on. It’s not always positive.”
David Souter’s life, on the other hand, was pretty close to always positive—or at least close to what he always wanted.
Just a few months before George H. W. Bush nominated him to the Supreme Court in 1990, Souter was confirmed as a judge on the First Circuit. (He had been a justice on the New Hampshire Supreme Court for several years.) If Souter had stayed on the First Circuit, he would have had chambers in Concord, gone down to Boston about once a month for arguments, and lived in his old family home in Weare. It was the life he wanted. Now, twenty years later, Souter finally had it.
By the time Souter returned to New Hampshire full-time, the old family farm house was literally disintegrating under the weight of all his books. So he bought a newer one closer to Concord and started the laborious process of moving his possessions. Efficiency was never a Souter strong suit, so he spent months shuttling between the two houses, not living entirely in one place or the other. As a retired justice, Souter was eligible to sit on the First Circuit, but that court was short-handed and Souter soon had a substantial caseload. The Supreme Court, however, only gave him a secretary based in Washington, not Concord, so his chambers on Pleasant Street were strewn with disorderly piles of papers and books. Souter didn’t mind. He went running through the hills every morning. He retired at sixty-nine, and a year or two in New Hampshire made him look five years younger. (He did miss his friends in Philadelphia, where he had been the Third Circuit justice for many years. He thought about visiting, but Philadelphia (!) just seemed too far to go.)
Souter put the Supreme Court behind him—almost. In May 2010, he agreed to give the commencement address at Harvard and get a few things off his chest. Souter had watched with impatience as Roberts, in his confirmation hearing, had compared himself to an umpire, limited only to the mechanical process of calling balls and strikes. Likewise, Souter had spent a generation confronting the resolute certainties of Scalia and Thomas that they could find the answer to any legal question in the plain text or the original meaning of the Constitution. Souter did not believe there was any such certainty. (He didn’t share his predecessor William Brennan’s liberal certainties either.) Rather, Souter built his jurisprudence around embracing the complexities and contradictions built into the Constitution.
“The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises,” he told the crowd at Harvard, citing the Pentagon Papers case, where the values of a free press conflicted with the need for national security. “A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways.” To Souter, originalism and textualism were based on false promises. “If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.” Their meaning for living people, not the intent of the framers—those, in Souter’s genteel way, were fighting words. In temperament and style of living, Souter was probably closer to the eighteenth century than any other justice, but he recognized the folly of trying to re-create the world of the framers and then render decisions as they would have done. In all the important ways, Souter was a modern man.
The Harvard speech was very much an aberration. Souter was out of the game, and happily so. When he was on the Court, Souter had longed to take the time to read (reread, actually) Proust and Dickens, and that was what he was finally getting around to doing.
One thing gnawed at him. Before he left Washington, he had meant to take something of the Court with him. He wanted a souvenir, a keepsake, that might remind him of his days as a justice, but he never found the right thing.
Then, some time after he returned to New Hampshire, Souter had an idea. When he was a boy, he had collected stamps, and the postmaster in Weare used to save copies of the new issues for him. He remembered that when he was about eleven years old, there was a three-cent stamp with a picture of the Supreme Court building. Souter burrowed into his files and found the stamp, and he noticed that it featured the windows where he had had his chambers for many years. Souter put the stamp in a frame. That was good enough for him.