Since retiring from the Supreme Court seven years ago, former Justice Sandra Day O’Connor has devoted her public efforts to civic education, working to reverse what she has described as a decline in Americans’ knowledge about their government and how it works.
Her latest book, Out of Order: Stories from the History of the Supreme Court, should be seen in that light. It is not a memoir so much as it is a history book: a primer on the nation’s highest court, that just happens to have been written by its first woman justice.
Readers hoping to learn how O’Connor felt about the court’s landmark decision to uphold President Obama’s healthcare reform law last year, or how she would have ruled on that or any other current case, will come away disappointed. There is little discussion of her judicial philosophy, virtually no commentary about recent high-profile cases before the court and few anecdotes about her colleagues that are not familiar to close observers of the Supreme Court.
That is not to say, however, that Out of Order is boring. O’Connor provides a highly readable introduction both to the history and the modern customs of the high court, an institution that seems to capture national attention only when a vacancy occurs or when a major ruling comes due. At just 165 pages before the appendices and end notes, the book could be aimed for the very kind of high school or college civics course at the center of O’Connor’s post-retirement advocacy.
The absence of gossip is not surprising coming from O’Connor, who makes little effort to hide her wariness of the Beltway’s modern-day political and media culture. She marvels at the “overtly political character” of the justices of the past, who were required to “ride circuit” and sit on lower courts throughout the country before the burdensome practice was scrapped just before the turn of the 20th century. In contrast to the present day, justices during the Supreme Court’s infancy were not shy about expressing their political views in speeches, and a few even ran for other public offices, including president, while they served on the bench.
All that is different today.
“I sometimes tell audiences that I like to give speeches about history because it’s less dangerous than talking about the present,” O’Connor writes. “Well, the early justices were braver than I!”
While O’Connor is stingy in her opinions throughout the book, she does offer up a few. Chief Justice John Roberts Jr., she writes, was the best oral advocate to appear before the Supreme Court during her quarter-century as an associate justice.
“There were many talented oral advocates whom I hear,” O’Connor writes, “but no one presented better arguments on a more consistent basis than the current chief justice, John Roberts.”
On the opposite end of the spectrum, O’Connor is unsparing in her condemnation of Justice James McReynolds, who served from 1914-1941 and who O’Connor writes “is commonly regarded as one of the worst justices ever to sit on the Supreme Court.”
O’Connor profiles McReynolds as one of four “larger than life” justices — the others being Justices Stephen Field, Oliver Wendell Holmes Jr. and William O. Douglas.
“While McReynolds is famous for his virulent opposition to the New Deal,” she writes, “his abysmal character stems mostly from his astonishingly mean and bigoted character.”
When McReynolds died in 1946, O’Connor notes, “not a single one of his fellow justices attended his funeral.”
In another chapter, O’Connor offers a glimpse at the senses of humor of her colleagues. Some of the jokes have a you-had-to-be-there quality, but a few are genuinely amusing, such as O’Connor’s retelling of the handful of times that retired Justice David Souter was mistaken for other justices by people encountering him on the street.
And when O’Connor met former Justice Byron White, a one-time NFL star, for the first time, she learned the hard way that his handshake came with “a viselike grip.”
“Justice White shook my hand in his with such force that I felt tears spring to my eyes from the pain!” she writes. “From then on, I resolved to grab his thumb instead of giving him my hand.”
The most important lessons O’Connor offers, however, are those that stem from the history of the Supreme Court and the unique origins of its power in the nation’s system of checks and balances. The court’s authority as the final arbiter of the constitutionality of laws was not fully apparent until Chief Justice John Marshall asserted it in the landmark case of Marbury v. Madison, in 1803. And it has only retained that authority because, by and large, the other branches of government have enforced it and the people themselves have respected it.
It is a useful reminder in considering the most contentious cases of the last generation, from Bush v. Gore, which determined the outcome of the 2000 presidential election, to Roberts’s controversial healthcare ruling last year. That most recent decision, according to some court scholars, came about because of the chief justice’s desire to protect the credibility of the Supreme Court in this highly polarized era.
“The Supreme Court,” O’Connor writes, “is only as effective as people think it is.”
In other words, perception matters. It’s a message all too familiar in the political hotbed of Washington. But coming from a woman who served for 25 years in one of the nation’s most cloistered power centers, it’s one that lingers after her book is closed.