Justice in the Balance
How President Bush got the high court he wanted.

Reviewed by Emily Bazelon
Sunday, February 11, 2007


The Inside Story of the Struggle for Control of the United States Supreme Court

By Jan Crawford Greenburg

Penguin Press. 340 pp. $27.95

Scoops at the Supreme Court are hard to come by. The court's traditions and prerogatives favor secrecy, and the justices are in a better position to control the flow of information than their counterparts in the upper echelons of the other, leakier branches of government. They have small staffs whom they instruct not to talk and who rarely disobey. As a result, when the justices themselves lift the veil on the court, it's hard to check the veracity of their assertions and to gauge their self-interest.

The most famous exception to the court's rule of silence is Bob Woodward and Scott Armstrong's The Brethren (1979), which exposed the personal rivalries of the Burger Court and altered the institution's image. Any book about the court that claims to "break news," as Jan Crawford Greenburg's Supreme Conflict does, invites comparison. Greenburg's book delivers -- not in major new ideas or big-picture revelations but in the details. If you follow the court closely or want to chatter about it at a cocktail party, Greenburg has some tidbits.

An ABC News reporter and lawyer, Greenburg interviewed nine of the 11 justices who have served on the court in the last three years. Her juiciest bit, which comes from retired justice Sandra Day O'Connor, exemplifies both the appeal and the problem of the justice-planted story. O'Connor told Greenburg that she retired in July 2005 not because she'd determined the time was right but because then-Chief Justice William Rehnquist told her it was. O'Connor had expected Rehnquist to tell her that he planned to leave the court that summer. He was 80 to O'Connor's 75 and gravely ill with cancer. But Rehnquist told O'Connor that he wanted "to stay another year," Greenburg reports. "And I don't think we need two vacancies," he added. That meant O'Connor either could step down immediately, earlier than she'd planned, or stay for two more years, longer than she wanted.

This explains what has seemed a surprising turn of events: the retirement of a vigorous justice at a moment when everyone expected the departure of the sick old chief. The timing mattered. O'Connor retired as instructed, and Rehnquist's death later that summer left the court with the two simultaneous vacancies he'd sought to avert. This set in motion John G. Roberts Jr.'s elevation to the chief justice spot (he'd originally been chosen to replace O'Connor), Harriet Miers's crash-and-burn nomination to succeed O'Connor, and Samuel A. Alito Jr.'s runner-up confirmation. In the end, O'Connor was not succeeded by a woman, as she'd dearly hoped and as President Bush had originally intended.

There's no particular reason to doubt O'Connor's version of her resignation story, but there's also no real way to verify it. Greenburg doesn't seem to have talked to Rehnquist before he died; he won't, of course, be talking to anyone else. So O'Connor gets the first and last word. Nor does Greenburg tell us O'Connor's rationale for acceding to Rehnquist's wishes or wonder about it herself.

There's nothing wrong with this; Greenburg's reporting has brought out new information, and the rest of us are free to speculate about O'Connor's truthfulness and her thinking. Still, it's worth noting the trade-offs this sort of reporting entails -- in this case, perhaps, access in return for the decorous handling of O'Connor's disclosure -- especially in light of the court's guarded norms.

Greenburg's other, smaller scoops benefit from reporting within the less secretive executive branch. Attorney General Alberto Gonzales, who didn't get chosen to replace O'Connor because of conservatives' fear that he'd be the Hispanic version of the leftward-moving Justice David H. Souter, tells an associate, "Part of me wants to get on the Court just to prove them wrong. They think I'd be like Souter? I'd never be like Souter."

After Roberts was picked for the chief justice spot, Andrew H. Card Jr., then White House chief of staff, kicked off the second search for O'Connor's successor with the pronouncement, "No white guys." Card then asked White House counsel Harriet Miers's own deputy to vet her -- "an egregious managerial mistake," Greenburg argues, that "compromised the advice Bush would ultimately get."

Once nominated, Miers disappointed her handlers by failing to master constitutional law in three weeks of cramming before her scheduled confirmation hearing. Greenburg also dishes that Miers was apparently the last to know of her own withdrawal; Card had to visit her twice before she got the message. In moving on to the steadfast conservative Alito, Greenburg tells us, the White House went with the white guy whom Bush's "legal advisers, including Miers, had preferred all along."

Greenburg ends on a familiar but salient point. In tapping Roberts and Alito, Bush accomplished what has eluded previous Republican presidents: a pair of picks likely to remake the court in his own conservative image. Out of the confirmation process, Bush got his court, Greenburg got her book, and the rest of us get choice details about the court's inner workings. ยท

Emily Bazelon is a senior editor of Slate.

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