Dispatches from the Creation Wars

Greenburg’s New Book

Jan Crawford Greenburg has a new book out called Supreme Conflict, which is a rare look inside the Supreme Court. Nine justices consented to be interviewed for the book, which is very rare, perhaps unprecedented; the justices, with few exceptions, have been notoriously averse to discussing what goes on in their chambers. ABC News has a long excerpt from the book that is quite fascinating. It includes previously unknown information on what transpired when Justice O’Connor retired.

O’Connor and Rehnquist were close friends for nearly 60 years, having gone to Stanford Law School together and lived near each other in Phoenix for decades. In June 2005, as the term came to an end, virtually everyone expected Rehnquist to announce his retirement on the last day the court was in session. He was struggling with thyroid cancer and was clearly fading. But behind closed doors, he and O’Connor had been talking about it and that was not going to happen.

She wanted to retire as well, due to her husband’s failing health, but she also assumed that Rehnquist was going to retire. She decided that she would stay on another year because she and Rehnquist agreed that there should not be two vacancies at the same time. But then Rehnquist shocked her by telling her privately that he was going to stay on another year. But, he said, we can’t have two vacancies. That told O’Connor she had two choices: retire now, or stay on for 2 more years. She opted to retire then.

When the marshall of the court called the White House to tell them that she had a letter for them from a justice, they expected it would be from Rehnquist. The White House had already been interviewing possible replacements for Rehnquist, but the political calculation was that they would be replacing a conservative justice with another one, rather than replacing the swing vote, O’Connor. Then, of course, Rehnquist ended up dying a few week’s later and they ended up with two vacancies anyway.

Her retirement came as a shock to her fellow justices as well, other than Rehnquist. This is an interesting passage from the book in that regard:

O’Connor had told only a handful of people about her plans. Not even her three boys knew. She’d written them letters several days before and timed them to arrive at their homes Friday, when everyone else heard the news. As Talkin was breaking the news to Miers, O’Connor’s farewell letters were hitting the other justices’ desks.

O’Connor’s secretary called Ginsburg’s chambers. “You’re going to get a letter from Justice O’Connor,” she said. “You should open it right away.”

Ginsburg was stunned. Kennedy, upon getting the letter, walked down the hall and gave O’Connor a hug. Clarence Thomas quickly called his wife, Ginni, who worked at the conservative Heritage Foundation, with the news. Minutes later, Thomas called back and asked his wife to urge her Heritage colleagues — frustrated by years of O’Connor opinions — not to say a negative word about her in the press.

Thomas, like the other justices, had grown fond of O’Connor. Depending on the age of the justice, the pioneering O’Connor was invariably described as a mother hen or a sister, the one who organized their lunches and kept things moving along. Even as the Court took up contentious issues that divided the justices as they divided the nation, the justices remained collegial. They credited O’Connor for much of that. They would miss her.

Fascinating tidbit about Thomas asking his wife to urge her colleagues not to say bad things about O’Connor in the press, I think. If you’re at all a Court watcher like me, you’ll love the excerpt. And this is a book I definitely want to get.


  1. #1 David C. Brayton
    January 26, 2007

    I’ve always found books about the inner workings of the Supreme Court to be overly dramatic. And this one, at least from the excerpt, is no exception.

    For example, Greenburg (like many others) says that Justice O’Conner was the “deciding” vote in many cases. Statements like this have always baffled me…there are eight others on the Court and each of the votes counts the same.

    The only thing this is really saying is that Justice O’Conner’s jurisprudence is such a hodge-podge that no one can predict how she will make her decision. Consequently, everyone looks to her opinion as the “deciding” vote because it is unpredictable. Some unkind folks might say that her jurisprudence is unprincipled and is results-oriented.

    The decisions analyzed by the author are the same decisions everyone else makes. If I leave this job now, how will investors view the action? What about my family? What about my colleagues? Can my health withstand another year at this job?

    Except of course, for the media attention that each decision garners. I saw a presentation by Justice Ginsburg a long time ago. She recalled how the day after she went to see a movie (I think she said it was Forest Gump), something appeared in a gossip column about how she was reading her mail before the lights went down. She just shook her head because she couldn’t possibly imagine why people would be interested in the fact a lot of her mail had backed up.

    These books are kinda like People magazine for intellectuals.

  2. #2 Ed Brayton
    January 26, 2007

    I don’t think being unpredicable necessarily means that she’s the one being unprincipled. Predictability is not necessarily a sign of principle, it could just as easily be a sign of the opposite. A liberal or conservative bloc of judges predictably voting for either a liberal or conservative outcome could just as easily indicate that they are the ones engaging in unprincipled, results-oriented judging and that the person who is less predictable is the one who is principled enough to tailor the ruling to the facts of the case. So I don’t think that calling her the swing vote necessarily means what you think it means.

    I also think there are other plausible reasons for considering her the swing vote on the court. First, because we know from the private documents of past justices, now open to the public, that she was the one that the two sides tended to court. That means they not only personally lobbied for her vote, but they tailored their preliminary written opinions, the ones they circulate among each other prior to the final ruling, to those arguments they thought would be most likely to be convincing to her. The other justices saw her as the one whose vote could swing a case and they were often right. So I don’t think calling her the swing vote necessarily requires the conclusions you draw.

    Having said that, I think O’Connor was often unprincipled and tried far too often to split the baby rather than making a clear and coherent legal statement. And that was a big part of why she was the swing vote as well. It was rare that she really made a bold, coherent and uncompromising statement on any issue. When she did, as in her brilliant dissent in the Kelo case, it was only a reminder of how well she could write and how clearly she could think when she wasn’t trying to find a way to please both sides.

    I also disagree about such books being gossip columns for intellectuals. The dynamics of the court, the way they interact with each other in private, the way they court each other’s votes, the way they tailor their arguments for maximum appeal to particular justices – these things have a very real effect on who wins those cases. They also have a very real effect on the substance of a ruling. There have been lots of instances where that inner dynamic has either resulted in or prevented major changes in the law. For example, we know from the archives of Blackmun that Kennedy changed his vote on the case that could have overturned Roe v Wade in the early 90s, preventing an enormously controversial change in the law. Imagine how different the political landscape would be had Kennedy not changed his vote and Roe had been overturned. I don’t care who reads their mail before watching a movie, but most books like Greenburg’s are based on those archives made public and they include a lot of details like that, details that really do tell us a great deal about the inner workings of the court.

  3. #3 David C. Brayton
    January 26, 2007

    Calling anyone the swing vote doesn’t illuminate anything because there are eight other justices with equal votes. Understanding each justice’s jurisprudence by reading and understanding their opinions is useful.

    Some dissents from Justice Stevens come out of left field. He could just as easily be considered a swing vote. Justice O’Connor was simply more intersting to speculate about because it was more difficult to predict which of her principles would tip the scales, so to speak.

    Of course the personal dynamics of the Court are important to the outcome. If anyone wants their communication to be effective, they should tailor it to the person that is receiving it.

    To be an effective one-on-one communicator, it is important to know how other people will receive your communicator. For example, engineers and sales people generally communicate very differently. If you need to communicate the same information to one of each, if you want to be effective, you better prepare for each conversation differently. To learn that the same thing is true at the Supreme Court is, at least to me, not very interesting.

    Trial judges are the same way–some are very “just the facts maam”. Others are very concerned about how the parties will feel. It is a very poor lawyer that doesn’t learn about the style of lawyering that the judge is receptive to.

    The legal system is not some big computer that spits out the logical outcome. It about humans and how humans interact with each other.

    The Court is presented with very difficult cases to decide. Very intelligent, rational people can reach exactly opposite conclusions. The example of Justice Kennedy and Roe v. Wade does nothing more than illustrate that he thought long and hard about an issue when it reached the Court and changed his mind based on the opinions of the parties, amicus briefs, oral argumentss and the interaction amongst the Justices.

    This is exactly what I thought happened at the Supreme Court.

    None of this seems dramatic. The Supreme Court is just a group of nine people that have been asked to decide difficult issues. Yes, they are really smart folks but they still pants/skirts/robes just like everyone else.

    These authors are just digging for drama where not much really exists.

  4. #4 Ed Brayton
    January 26, 2007

    I don’t think it’s drama, I think it’s history. Books like this, which fill in the behind the scenes details using the volumes of information we only get from a late justice’s papers, tell the real story of why cases turned out the way they did. For that reason alone, they are worth reading as history.

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