Out of Order: Stories from the History of the Supreme Court
Sandra Day O'Connor's new book steps a bit too carefully through any and all political minefields.
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Such details are all well and good. They are fodder for a middling, middle school civics textbook. Indeed, the author’s prose often seems aimed at that audience: “Underneath their robes, so to speak, the Justices of the Supreme Court are real, often quite unique, people.” We learn how these real people have a collegial tradition of shaking hands before taking the bench, but not how they interact and come to a decision afterwards – for example in Bush v. Gore, in which O’Connor is widely viewed as having cast the deciding, or “swing” vote for the ideologically split court.Skip to next paragraph
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It is not simply that the author has decided not to “tell all,” as she refers derisively to examining insider aspects of her nearly 25-year tenure. In her haste to get on to the next judicial factoid, she fails to flesh out what ripping good stories she does include.
For example, the 1954 landmark case Brown v. Board of Education that outlawed segregated schools pitted future Supreme Court Justice Thurgood Marshall against John W. Davis, a legendary oral advocate who argued for “separate but equal.” Marshal, who in 1967 would be the first African-American to sit on the high court, idolized Davis and had watched him argue other cases before the Supreme Court. Davis, according to Marshall, was in tears after making his emotional case for segregation. The author abruptly ends the story there, leaving the reader malnourished: Why was Davis crying? What was Marshall thinking about facing his idol in such a highly charged and personal case? Did they speak before or after the verdict?
Further along O’Connor has another opportunity not simply to report on how the court has evolved, but to ruminate on where it is evolving to and how it might get there. A woman was selected by a Supreme Court justice to be a law clerk for the first time in 1944. The second would not be chosen until 1972, and female clerks are decidedly in the minority still. In 2011, O’Connor writes, there were 39 law clerks, only 13 of whom were women. She points out that women make up more than half of law school graduates today – then, characteristically, she moves on without further ado.
Again, the famished reader would like to know, at minimum: how many of the author’s law clerks were women, why does she feel the imbalance exists, and what might be done to make the justices less biased – at least in this one area.
Unfortunately, in opting not to tell all, the author has told us very little.
David Holahan is a contributor to The Christian Science Monitor