Justuce O’Connor shares insight, but not much more, into the highest court in the land
out of order: Stories from the History of the Supreme Court by Sandra Day O’Connor (233 pages, $26)
When she retired from the Supreme Court in 2006, Sandra Day O’Connor, the first female justice, left behind a legacy of centrist opinions that determined the outcome of nearly every controversy of her era, from abortion rights to racial remedies. Since then, the woman known for her ranch-bred common sense has embarked on projects related to civics education and judicial independence in the states. Now she has added another piece to her public bequest with a new book.
Out of Order is a tidy collection of essays that O’Connor, now 82, says arose from her interest in the roots of the judiciary. Offering the basics of court history and landmark cases, Out of Order is filled with facts about the 112 justices, the early circuit riding days across rough terrain, and traditions in the pillared building erected in 1935.
“I was a Justice for over a quarter century, and after hearing a few thousand cases, I think I began to get the hang of it,” writes the woman whose vote helped uphold abortion rights and controlled countless social-policy dilemmas. “Moreover, because I long ago stopped caring what politicians and the media say about me, I was also better able to make the hard decisions that might make my powerful neighbors mad.”
That statement is one of the few in this book in which O’Connor, who grew up in Arizona and began breaking barriers as a state legislator, reflects on her record. This volume mainly presents a retelling of familiar tales, such as the story behind the 1803 Marbury v. Madison decision that established the court’s power to review acts of Congress and be the final word on the Constitution.
In other venues, O’Connor has criticized the current court for reversing some of her decisions. She was succeeded by Justice Samuel Alito, who, along with Chief Justice John Roberts, a fellow appointee of President George W. Bush, has pushed the court more to the right. The court currently is weighing a challenge to affirmative action at the University of Texas that will test the fate of O’Connor’s 2003 opinion allowing consideration of an applicant’s race to ensure diversity on campus.
In her new book, O’Connor does not take issue with the Roberts Court, although overall the collection could be read as an argument for stability in the law. With this volume, she has aligned herself with steady historical imperatives rather than any ideological agenda.
Only occasionally do we see traces of O’Connor’s candor. In a chapter about the court’s majestic building, she reveals her disappointment that the court voted in 2010 to stop allowing people to enter through the bronze doors at the top of the marble steps. Closing those two iconic doors and compromising the court’s symbolic openness was an internally difficult decision. In their private session on the matter, the vote was 5-4, but only two justices, Stephen Breyer and Ruth Bader Ginsburg, made their dissents public. The two other dissenting justices said privately that they did not want to call attention to the court’s deep division or exacerbate the security concerns that prompted the closure.
In her book, O’Connor quotes the view of Breyer and Ginsburg that the main entrance and front steps of the grand building are “not only a means to, but also a metaphor for, access to the court itself.” O’Connor notes that those two dissenting justices expressed hope that people will in the future be able to enter under the front facade’s famous adage “Equal Justice Under Law.” “I often think back to my first day walking down those marble steps . . . ,” she writes, “and hope the same.”
President Ronald Reagan appointed O’Connor in 1981, fulfilling a campaign promise to name the first female justice. She writes she was “not always comfortable” as “the object of so much attention” but does not elaborate. Three women now are among the nine justices: Ginsburg, Sonia Sotomayor and Elena Kagan.
In her chapter on “Supreme Court Firsts,” O’Connor notes that religious diversity came slowly. The first Catholic was Chief Justice Roger B. Taney, appointed in 1836 by President Andrew Jackson. The first Jewish justice was Louis Brandeis, appointed in 1916 by President Woodrow Wilson. Intriguingly, the current court is the first without any Protestants. Since Justice John Paul Stevens, a Protestant, retired in 2010 and was succeeded by Kagan, who is Jewish, the membership has been three Jews and six Catholics.
Beyond such fundamentals of major cases, the reader will appreciate insights on life inside the marble bastion. She refers to the justices’ lunches together after oral arguments: “The meal is meant to be a respite from the intense pace of the Court’s business,” she writes. Unlike on the bench, the justices do not sit by seniority. Rather, their seats are based on the seat of the justice they replaced. “In this way,” O’Connor writes with some humor, “a Justice’s perspective is passed on from successor to successor – his perspective of the dining room.”
Out of Order is a reminder that O’Connor’s legacy rests not in her writing projects but in opinions that steadied the nation and are being tested by today’s court.