Justice Sandra Day O'Connor
To be fair, O'Connor does briefly mention a few groundbreaking historical cases, such as Marbury vs. Madison (1803) - which was the first ruling to declare a law unconstitutional; Plessy vs. Ferguson (1896) - which legalized 'separate but equal' facilities for blacks and whites; and Brown vs. Board of Education (1954) - which reversed Plessy by declaring that segregation in public schools is illegal. These cases are just mentioned in passing, however, and not the focus of the narrative.
The book is divided into chapters, each of which addresses a different aspect of the Supreme Court's history.
- To start with, O'Connor talks about clashes between the President (of the moment) and the Supreme Court.
One of the most telling examples of such a skirmish was the 1937 'judicial reform bill' proposed by President Franklin Delano Roosevelt (FDR).
President Franklin Delano Roosevelt
- The next section of the book discusses the most influential Supreme Court appointees of various past Presidents. This chapter is rather dry (to me), but probably of interest to history buffs.
- Then comes a summary of the changing locations of the Supreme Court. When Sandra Day O'Connor was sworn in as a Supreme Court justice in 1981, the court was at its present Washington, DC location - a majestic building with marble stairs and bronze doors. However, it took 145 years to get there.
Supreme Court Building
The first Supreme Court sessions, in 1790, were held in the Merchants Exchange Building in New York City. The Court then moved to Philadelphia, where it was housed in Independence Hall followed by City Hall.
Independence Hall
Finally, the Court migrated to Washington, DC, and in 1925 Chief Justice William Howard Taft envisaged the current building - which highlights the judiciary's dignity and independence.
Chief Justice William Howard Taft
*****
- The subsequent section tackles the changing roles and workload of Supreme Court Justices. During the Supreme Court's first century - from 1789 to 1891 - the justices' primary duties were to 'ride circuit' - or serve as roving trial judges in the lower federal courts. The justices traveled thousands of miles each year to preside over trials and appeals.
The reason was 'good old-fashioned yankee frugality.' The country was cash poor and in debt, and Congress saw circuit riding as getting two courts for the price of one.
All the same, circuit riding was a grinding burden on the justices. While they spent six weeks hearing cases for the Supreme Court, they might spend six months riding circuit - on horseback, via carriage, by stagecoach, and later by railroad. The judges were separated from their families, traveled over rough roads in terrible weather, consumed awful food, and sometimes had to share rooms....even beds.....with repellent characters. To add insult to injury, the justices had to pay the entire expenses of their travels out of their salary, which wasn't generous. In 1838, Justice John McKinley's duties on the 9th circuit (Alabama, Louisiana, Mississippi, and Arkansas) required him to travel 10,000 miles!!
Justice John McKinley
The justices breathed a huge sigh of relief in 1891, when circuit riding ended.
*****
The justice's workload on the actual Supreme Court also changed dramatically over time. During it's first 100 years or so, the Court had to hear ALL submitted appeals, which was manageable at first. However, applications for review - called 'petitions for certiorari' - skyrocketed as the country grew. To ensure an acceptable workload, the Supreme Court had to limit the number of cases it accepted.
On O'Connor's first day on the Supreme Court, she was presented with many hundreds of petitions for certiorari, out of which the justices eventually chose 159 for review. Today, the Court hears about 90 cases a year, selected from 8,000 requests. So, when a litigant threatens 'to take their case to the Supreme Court', they can certainly try......but they probably won't succeed. 😒
- In the next chapter, O'Connor discusses oral advocacy at the Supreme Court. Not any old lawyer can appear before the highest court in the land. To be allowed to argue a case, attorneys must be 'accepted' to practice before the Court.
During the Supreme Court's first two sessions in the 1790s, fewer than 30 lawyers were accepted per year, and - for a long time after that - around five attorneys were added annually. Now there are about 4300 attorney admissions per year, a huge increase - necessary because legal issues have expanded in number and complexity. Of course most of the attorneys never actually stand before the justices, but there are other perks like: preferred admission and seating for courtroom arguments; access to the court's library; and having an impressive document to frame. 👍💕
Oral advocates need to be 'the best of the best' because it's their job to spell out the legal issues involved in their client's case, present the strongest possible argument in their client's favor, and offer ways to resolve disparate issues. Perhaps most daunting of all, the advocates must be prepared to answer justices' questions.....which tend to come hard and fast! 😓
O'Connor notes that Daniel Webster - who practiced before the Supreme Court from 1812 to 1852 - is considered one of the most brilliant oral advocates in history. With his golden tongue, knowledge of the law, and literary allusions, Webster could speak for hours - and in a case involving Dartmouth College (his alma mater), Webster actually brought himself to tears when he said: "Sir, you may destroy this little institution; it is weak, it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out! But if you do so, you must carry through your work! You must extinguish, one after another, all those great lights of science which for more than a century have thrown their radiance over our land! It is, Sir, as I have said, a small college. And yet there are those who love it!" 😥 Webster won the case.
Oral advocacy has changed a lot since Webster's day. During the first half-century of the Supreme Court, oral arguments could take hours, even days - with all manner of flamboyance, dramatics, and flourishes. In fact, oral arguments were considered a form of entertainment, and attracted visitors of all stripes....especially women.
As the number of cases increased, however, the time allotted to oral arguments decreased. In 1848, oral arguments were limited to two hours per side; in 1925, they were reduced to one hour per side; and in 1970, to 30 minutes per side.....which continues to this day.
The length of briefs submitted to the Supreme Court also changed over the years. In the beginning, there was no page limit, and attorneys sometimes submitted 'books', crammed with every single thing they could think of. Today, petitions for certiorari can't exceed 9,000 words and briefs in cases scheduled for oral argument can't be longer than 15,000 words. So lawyers have to marshall their best arguments prior to appearing before the Court, focusing attention on the most important issues.
- Like any institution, the Court has developed customs and traditions over the years. O'Connor notes that some conventions shape the manner in which the Court does its work. For instance, when the justices meet privately to discuss a case, they speak and vote in order of seniority. And, at one time or another, all the justices are asked to write opinions for a case.
On the lighter side, some customs foster good relations among the justices. For example, after oral arguments the justices lunch together, during which time work is not to be discussed. And the most junior justice has the responsibility for choosing food for the Supreme Court’s cafeteria. So Justice Elena Kagan added frozen yogurt and pretzels to the menu. 🍦🥨
- The subsequent section is about the oath of office. All federal employees - including Supreme Court Justices - must take an oath of office - swearing to support and defend the Constitution. In fact, justices take two oaths of office (which can be combined). This segment of the book describes where and when various justices took their oaths, and who administered them.....usually a Chief Justice or the President. I found this chapter a bit dull, but some readers might like it.
- To liven things up the next topic is humor on the bench. The serious environment of the Court is sometimes spiced up by the occasional joke. Like everyone else, the justices like a good laugh....and the laughs sometimes take place in the courtroom.
In 2005, a law professor studied transcripts of 75 oral arguments from the October, 2004 term of the Supreme Court. The professor then set about calculating the number of 'laughter episodes' generated by each justice during oral presentations. Justice Antonin Scalia won by a landslide, with 77 laughter episodes 😁;
Justice Antonin Scalia
Justice Stephen Breyer
......and Sandra Day O'Connor - who's apparently not too funny - was in seventh place 🙂.
Justice Sandra Day O'Connor
Speaking about Scalia, Justice Ruth Bader Ginsberg said he was sometimes SO FUNNY that she had to pinch herself to keep from laughing out loud in the courtroom.
One source of giggles occurs when oral advocates mix up the justices. Justice David Souter was called by the wrong name on several occasions, and once was even called Justice Ginsberg. He responded with a deadpan, "You're very flattering."
Justice David Souter
Justice Ruth Bader Ginsberg
- Towards the end of the book O'Connor discusses some of the most memorable Supreme Court justices in history - one of the finest being Oliver Wendell Holmes,
Justice Oliver Wendell Holmes
...... and the absolute worst being James McReynolds.
Justice James McReynolds
Since villains are sometimes more colorful than heroes, I'll summarize O'Connor's thoughts about McReynolds.
McReynolds (who served on the Court from 1914 to 1941) "was an astonishingly mean and bigoted character." Born in Kentucky in 1862, McReynolds was a southern gentleman of the old school, raised with fundamental values. He considered anyone who disagreed with him to be stupid or evil, and was quick to turn an argument into a fight. As a justice McReynolds was abrasive, and would write "this makes me sick' on his colleagues' circulating opinions. He voted down New Deal legislation, and referred to FDR as “that crippled son-of-a-bitch in the White House.”
McReynolds was an outspoken anti-semite, and behaved badly towards Justice Louis Brandeis and Justice Benjamin Cardozo, both of whom were Jewish. In fact McReynolds conspicuously read a newspaper during Cardozo's swearing in ceremony. McReynolds was also an unabashed racist, and treated his black employees with condescension, using one as a 'bird-dog' - who sloshed through water to retrieve game - on hunting trips.
When McReynolds died, none of his fellow justices attended the funeral.
- O'Connor concludes the book with Supreme Court 'firsts.' I'll just give a few examples.
◻ The first Chief Justice was John Jay (1789)
Chief Justice John Jay
◻ The first Catholic justice was Roger Taney (1836).
Justice Roger Taney
◻ The first woman to practice before the Supreme Court (as an oral advocate) was Belva Lockwood
(1879).
Lawyer Belva Lockwood
◻ The first Jewish justice was Louis Brandeis. (1916)
Justice Louis Brandeis
◻ The first African-American law clerk was William T. Coleman, Jr. (1948)
Law clerk William T. Coleman
◻ The first professional football player to become a justice was Byron White (1962).
Justice Byron White
◻ The first African-American justice was Thurgood Marshall (1967).
Justice Thurgood Marshall
◻ The first woman justice was Sandra Day O'Connor (1981).
Justice Sandra Day O'Connor
O'Connor doesn't dish any dirt in this book, and doesn't have a cross word for any of her fellow justices. She also has no comment about controversial decisions made during her tenure on the Court - like handing the presidency to George W. Bush. Maybe she'll address more controversial topics in another volume.
I enjoyed the book, which gave me a glimmer of optimism during these dark days (for me). Supreme Court justices come and go, but democracy (seemingly) carries on. During an interview for NPR, O'Connor said: "I thought the justices did a good job of discussing the issues in a decent way in which everyone had the opportunity to express their views and that they would be fairly considered by everyone. I thought we had a pretty good system going."
I'd recommend the book to readers interested in the Supreme Court.
Rating: 3.5 stars
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