A telling moment arose during 5th U.S. Circuit Court of Appeals Judge Jennifer Walker Elrod’s Baylor Law School interview with veteran journalist and author Evan Thomas concerning his new, eminently readable, richly informative biography “First: Sandra Day O’Connor.” Thomas began telling the story behind the controversial 2000 presidential election in which the outcome hinged on mind-boggling recounts of ballots in the pivotal state of Florida. The Supreme Court stepped into the electoral morass, ultimately deciding what came to be known as Bush v. Gore, a ruling over which legal scholars still argue.
“The effect of that was to elect George Bush president,” Thomas told an audience last Tuesday. “Now the fact that five votes [of the Supreme Court for Republican nominee Bush] were all Republicans and the four votes [for Democratic nominee Al Gore] were all liberals did not sit well with an awful lot of people — not just the academics but a lot of regular citizens who said, ‘Hey, I thought the Supreme Court was not supposed to be political.’”
“Well, they’re not Republicans,” Judge Elrod protested, interrupting in defense of the five Supreme Court justices including Justice O’Connor, a 1981 Ronald Reagan appointee, the first woman appointed to the high court and long regarded as its decisive vote. “They’re appointed by Republican presidents. That’s what the journalists always say. Every day we read that in the paper, Evan!”
Takeaway: Federal justices are above crass partisanship.
Maybe, maybe not. For those of us who follow the rulings, biographies and speeches of jurists and past jurists, Judge Elrod’s claim is hardly unfamiliar (and Thomas’ biography underlines the impossibility of Bush v. Gore for Justice O’Connor). We’re regularly assured that the federal judiciary is fiercely impartial and that its decisions should be viewed through a strictly constitutional prism rather than a funhouse political mirror. Yet if we digest such anecdotes as pastors in 2016 pressing their flocks to vote for Republican Donald Trump to stock the federal courts with ideologically conservative, anti-abortion jurists, it’s fair to wonder if the fix is in, regardless of one’s view of abortion or Republican politics.
It’s this notoriety that some jurists — including Supreme Court Chief Justice John Roberts — appear to fear more and more. They may not be able to contain the damning perception that our federal judiciary is not so much independent but predisposed and prejudicial, that its members are more partisan-sanctioned plants than Senate-approved jurists. And the politically charged air at present is ripe for more such assumptions, given several lawsuits contesting President Trump’s unprecedented, arguably unconstitutional use of national emergency powers to subvert Congress’ power of the purse — one of the latter’s exclusive Article I powers and part of a system of checks and balances designed by the Framers and implemented through ratification by the people.
Trump launched a similar push last week to use the courts to repeal the Affordable Care Act in toto, given that, just like border wall funding, Congress simply refuses to dismantle Obamacare to the degree he demands. What makes this constitutionally confounding is that Trump’s Department of Justice is not only being forced to forsake its long-established role of defending all of our nation’s laws, it actually defended key parts of the Affordable Care Act in federal court just recently. As Lou Costello might say: Who’s on first?
These cases, if not handled adroitly, could tarnish the nation’s federal courts for a generation. They could also highlight what Evan Thomas (and others) call pragmatic conservatives and ideological conservatives, a difference that increasingly played out on the Supreme Court during Sandra Day O’Connor’s nearly 25 years there. While O’Connor, an Arizona conservative, personally abhorred abortion, she declined to strike down Roe v. Wade, even as she ruled in a way that allowed states to impose significant regulations narrowing its practice, Thomas said. Similarly, she had problems with affirmative action but allowed it in law schools because she was influenced by the U.S. military’s use of it in assembling an officer corps more closely resembling America. She recognized that law schools produced tomorrow’s leaders. (Consider Texas’ governor, two senators and the last U.S. president.)
Evan Thomas says “First” is ultimately a love story about Justice O’Connor and her husband John, one brimming with sacrifice by each and leading to her leaving the court in her prime to care for him when Alzheimer’s disease took its awful toll. (John O’Connor died in 2009.) But this “authorized biography” is also a straightforward, sometimes bracing look at clashing egos and philosophies on the nation’s highest court, bolstered by O’Connor’s ensuring that Thomas had access to current and past members of the Supreme Court. “She picked me,” explained Thomas, a former Newsweek editor who had written several books, including “Being Nixon” and a biography on John Paul Jones. “She was thinking of doing a memoir for a long time but never ended up doing it, probably because she developed early dementia. But I also think she was torn. She wanted to have a legacy, she wanted to have a book about herself [and her work], but she’s a pretty discreet person and I’m not so sure she would have wanted to say everything you need to say in a book.” Thomas was an author affiliated with Random House, which had also published O’Connor’s earlier “Lazy B: Growing up on a Cattle Ranch in the American Southwest.” The project was thus set with O’Connor pointing the way for Thomas.
O’Connor’s own book was certainly a good foundation in terms of appreciating her character and work in life, Thomas said: “When she was 15, her job that day was to bring lunch to the roundup, which was miles away across the prairie. So she gets up at 5 o’clock and makes a roast, cake. Gets in her truck and drives out, she has a flat tire. And for a 15-year-old girl, it’s not easy changing a flat and she has to jump on the jack. She gets there and she’s an hour late and her father says to her, ‘You’re late.’ And she said, ‘Well, I had a flat tire.’ And he said to her: ‘Next time, leave earlier.’ The message: No excuses out here. It’s a hard life, no excuses, and she learned self-reliance, she learned to look after herself and others and not to make excuses.”
Perhaps it’s not so surprising that she and Antonin Scalia, these days hailed as the ideal Supreme Court nominee by the far right, didn’t get along so well. “She did not love Justice Scalia,” Thomas said. “Initially she did because he was funny and warm and sort of more intellectually alive than some of the older justices. But she quickly became disappointed because, for all his many gifts, he suffered from something all of you have experienced before — the smartest-kid-in-the-room syndrome. He would send out these ‘Ninograms’ correcting justices on their grammar and other things. And that’s OK, but he did it publicly with her.
“In open court, he referred to one of her abortion opinions by saying, ‘Her opinion cannot be taken seriously.’ That is a gratuitous shot at a fellow sitting justice and she did not appreciate it. So she was not by the end a fan of Justice Scalia. They did have different philosophies — he’s a rules-based, quite doctrinaire conservative; she’s a much more common-sense, case-by-case, fact-by-fact minimalist — very different schools of jurisprudence. She’s a pragmatist, he’s doctrinaire. He would say to clerks, ‘She’s just a politician in judge’s robes’ and, of course, that got back to her.”
Thomas says O’Connor had deep reservations about Justice Samuel Alito’s appointment to succeed her in 2006 and the rightward drift of the high court: “O’Connor believed, not wrongly, that Alito’s vote would undermine her pragmatic compromises on abortion, affirmative action, freedom of religion and other important issues.” She regretted the high court’s Citizens United decision because “she didn’t like the idea of [corporate] money having such a big influence in politics, probably because she had been in politics herself in the [Arizona] state legislature.” She had seen lawmakers who bowed to moneyed interests rather than public good.
Former D.C. federal appeals judge and solicitor general Ken Starr, who hosted Thomas at another local event Tuesday, politely disagrees with his friend, suggesting that even Thomas’ use of terms such as “doctrinaire” can confuse the fact many justices simply come from different but entirely legitimate perspectives on the Constitution.
“I would not use those terms,” Starr told me. “I do not consider Justice [Ruth Bader] Ginsburg an ideologue or doctrinaire, but she has a traditional philosophy that points her in a particular direction, and that direction is a very open-ended interpretation of the Constitution that maximizes the power of judges to shape our culture. The difference between Sandra Day O’Connor and a Samuel Alito or Antonin Scalia — and this is very consistent with what Evan said — is her desire to avoid bright lines. And this is completely consistent with what you said about her — minimalist, step by step and so forth, whereas justices such as Alito and Scalia are more willing to draw a bright line [on constitutional questions].”
Put another way, O’Connor often decided issues incrementally, addressing circumstances in narrowly defined ways; Scalia and Alito sometimes viewed cases in broader, far-reaching constitutional contexts. To use an auto repair analogy, she applied pivotal patch jobs to keep the whole vehicle running; other justices sometimes undertook controversial overhauls.
In his book, Thomas quotes Justice Stephen Breyer’s comment on the first term in which O’Connor was absent and Alito was in her place: “It is not often in the law that so few have so quickly changed so much.”
Starr acknowledges the serious problem of perceiving federal justices as trying to effect decisions for political ends, such as abortion: “And a lot of the problem of public perception is the way, with all due respect, the court’s work is being transcribed and reported, including by [law, political and history] professors. It’s not simply the Supreme Court reporters. I think professors have lent themselves to this perception problem. There is an honest difference of opinion on how to interpret the Constitution.”
Even as Chief Justice Roberts, Starr and others struggle to bolster the courts’ image for integrity and independence, the problem may well involve more than errant journalists or academia. Immigrant-bashing Republican presidential candidate Donald Trump claimed in summer 2016 that U.S. District Judge Gonzalo Curiel was unfit to decide lawsuits alleging fraud against Trump University because Indiana-born Curiel was “Mexican” — an attack accepted with a collective shrug by Trump supporters. Chief Justice Roberts last November forcefully rebuked President Trump when the latter condemned as “an Obama judge” Jon Tigar, a federal jurist who rebuffed Trump administration efforts to ignore U.S. asylum law. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
But if the president has steadily eroded public confidence in the federal judiciary, so has Congress, especially with Senate majority leaders Harry Reid and Mitch McConnell alternately destroying Senate rules and protocols that should have allowed for non-partisan deliberation of judicial prospects. This corruption reached its height when, upon Justice Scalia’s 2016 death, the Republican Senate refused to perform its duty to consider and vote on an eminently qualified (and moderate) replacement candidate nominated by the nation’s first black president — Republican inaction that O’Connor condemned, Thomas says. Unfortunately, way too many jurists and past jurists stayed mum as the Constitution endured another partisan-inspired beating. Now Democratic presidential contenders argue for packing the high court with more judges to compensate for the so-called “stolen seat” occupied by Justice Neil Gorsuch. In the final analysis, one must wonder if federal jurists are naive about some of those in their ranks and delusional about political expectations pulling madly at them all.
To their credit, Ken Starr and wife Alice are committed to reversing skepticism about the judiciary. Prior to a birthday party for Alice at Ridgewood Country Club Tuesday, she insisted the spotlight fall on retired Justice O’Connor in absentia — Ken Starr as a Department of Justice staffer in 1981 interviewed her as a Supreme Court prospect for the Reagan administration — and on Evan Thomas, whom the Starrs have long known. (Tuesday happened to be O’Connor’s 89th birthday.) And when 130 or so party celebrants left the country club that evening, each held a 476-page copy of Evan Thomas’ new O’Connor biography, in many ways far more than just her life story.