Joan Biskupic’s New SOC Biography
on Oct 7, 2005 at 3:33 pm
We’re looking forward to getting our hands on a copy of Joan Biskupic’s highly anticipated biography of Justice O’Connor: Sandra Day O’Connor – How the First Woman on the Supreme Court Became Its Most Influential Justice. It is just coming off the presses. Joan is apparently the only reporter to have received access to the papers of Justice Brennan for a published piece. She also used the papers of Justices Marshall, Powell and Blackmun. (Nice of Justice O’Connor to reschedule her retirement to coincide, no?) And seven of the eight other members of the Court agreed to be interviewed. I thought it would be interesting to get from Joan a few tidbits from the book, so I asked her by email. Here’s what she wrote back:
What are some of the interesting things you learned from the “early†O’Connor years?
She played an active and significant role in Phoenix for William Rehnquist’s 1972 appointment to the Supreme Court. This is a separate chapter, which includes correspondence between O’Connor and Rehnquist. It ends with her filing away lists of all the senators she monitored and Stanford boys’ club members she called, along with a cartoon she found. In the Nov. 1971 cartoon from the Arizona Republic, a disheveled but grinning man looks into a hospital nursery window at his newborn daughter. The man is saying to the nurse by his side, “Just think, she might someday become a Supreme Court Justice.”
O’Connor met Warren Burger in 1979 on a houseboat vacation on Lake Powell (water skiing and swimming); Burger liked her and appointed O’Connor to judicial commissions to increase her stature; then he was among those who planted her name with the Reagan officials in early 1981. In the vetting process, Ken Starr was a major player and abortion, of course, was Topic A. The book includes some Reagan correspondence to senators, saying in effect: Trust me. She’s with us on abortion.
What’s your sense of her place in the political dynamic on the Court?
Early on, Justice O’Connor figured out how to size up the men, forming a special alliance with Lewis Powell, watching the master strategist William Brennan and never acknowledging the slights from Harry Blackmun. She learned to monitor the views of wavering justices and to take a leading role in crafting consensus. Her methods were not unique, but they were more constant, intense and effective compared to most of the other justices. She benefited from her political history in Arizona, which included state Senate majority leader and 1972 state co-chairman of President Nixon’s reelection campaign.
Justice Brennan, who never held elective office but had a strong political sense, was a regular rival. This began early. One example I use came from December 1981, when she proposed that – to lighten the caseload – the court dispense with oral arguments in some cases. Burger and Rehnquist immediately agreed that it was a good proposal. Other justices said it might merit consideration. Brennan wrote back to Burger: “I could not agree to Sandra’s proposed change. … I expect my reaction is influenced by my New Jersey experience [and] the [past] practice of the [state’s] highest court in deciding almost all cases on briefs without oral argument. The low quality of final judgments was traced directly to that practice. … I feel so strongly about this that I must publicly dissent if the rule is changed.” Her proposal was dropped.
The four sets of documents I used (Brennan, Blackmun, Marshall and Powell) bear out that as Brennan’s strategic power waned over the years, O’Connor’s increased. In one 1985 episode, she helped Powell wrest the majority from Brennan in a First Amendment case. One note she wrote to Powell reveals her approach: “This case has been making its uncertain way through this court for two terms now. I am not sure the court will succeed in resolving it in any way which I regard as satisfactory. But during your illness something has occurred which offers the possibility that four, and perhaps five, of us can partially agree on one significant feature. … Byron [White] has shown me a rough draft of his proposed opinion. He is not planning to join Bill Brennan, so there are potentially five votes in opposition to the circulating ‘majority’ opinion. This is reason enough to make it worthwhile to pursue every avenue of agreement among those in dissent, who might thereby become a majority.”
Through the years, O’Connor was helped, of course, by the addition of more conservative justices. I use as an epigraph a note that actually started me thinking about this book. The 1990 note from Brennan to Marshall in a criminal case said: “As you will recall, Sandra forced my hand by threatening to lead the revolution.” Brennan, who went on to fret about what would happen “if Sandra [got] her hands on” the particular criminal case, appeared to understand her ways more than most of their colleagues.
