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, 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 control 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 which 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 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 to 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 that 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, Chief Justice Roger B. Taney, was 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.
O’Connor avoids any sharp commentary regarding disputes in which she played a leading role, for example testing the rights of Guantanamo detainees after the Sept. 11, 2001, terrorist attacks. In battles with the executive branch, she writes, “the courts have played a vibrant role in imposing core principles of liberty upon the critical enterprise of national security.”
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, a tradition she fostered: “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 at the table 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.”
In a separate private setting, the justices’ conference room, the most junior justice is responsible for taking notes on cases and opening the door when reference material is delivered. When O’Connor joined the court, some of her male colleagues thought she might be offended by the tasks. But Stevens, the most junior member at the time, said he believed she would not want to be treated differently. “He was right, of course. I was more than happy to continue the tradition,” O’Connor reports. Stevens was, no doubt, more than happy to relinquish the chores he had done for nearly six years, since his 1975 appointment.
In a chapter on retirements, O’Connor says that “the decision to leave the court is never an easy one, and a Justice’s reasons are deeply personal.” Again, she offers no special reflections. O’Connor stepped down to take care of her husband, John, who suffered from Alzheimer’s disease. He died in 2009.
Earlier in her writing life, O’Connor published “The Lazy B,” a 2002 memoir co-authored with her brother, H. Alan Day, about the family ranch. A year later she produced “The Majesty of the Law,” a collection of essays on the court and the Constitution. “Out of Order” is a thinner book and has more limited aims. And it 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.
OUT OF ORDER
Stories from the History of
the Supreme Court
By Sandra Day O’Connor
Random House. 233 pp. $26