The Nine [113]
Scalia’s colleagues were used to his dramatics on and off the court, and they collectively greeted the latest controversy with little more than a roll of the eyes. As O’Connor would often say, “That’s just Nino.” Perhaps Ginsburg put it best in a speech in Hawaii a few months later, when she said a deer killed by Scalia made for delicious venison at their families’ traditional New Year’s feast. “Justice Scalia,” she observed dryly, “has been more successful at deer hunting than he has at duck hunting.”
The personal attacks on Kennedy and Scalia illustrated how the polarized ideological environment radiated into the Court itself. The justices remained cordial toward one another, but ideologues outside the Court treated them as if they were just another set of partisans. The fiction that they dwelled outside politics became increasingly difficult to sustain.
The undertow dragging the Court into politics disturbed all the justices, but especially O’Connor. Splitting the difference came naturally to her, but it wasn’t possible in every case. During the early years of the Bush presidency, a case was heading to the Court that, to a degree almost unprecedented in history, was directed to a single justice—O’Connor. Her struggle in that case to place the Court in the center of American life—and herself in the center of the Court—became her defining moment.
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BEFORE SPEAKING, SAYING SOMETHING
The problems began with John Ashcroft.
Ashcroft, the former Missouri senator whom Bush named his first attorney general, embodied everything that O’Connor disdained about the modern Republican Party. He was extreme, polarizing, and moralistic—unattractive. One of O’Connor’s favorite former law clerks was Viet Dinh, who in the course of an extraordinary life fled Vietnam as a boat person and later became a professor of law at Georgetown. When O’Connor heard that Dinh had taken a senior job under Ashcroft, she was appalled. “Working with Ashcroft, he’s ruining his career,” she told another former clerk.
But O’Connor was wrong. Dinh was actually enhancing his career by associating with Ashcroft, because it was Ashcroft’s brand of conservatism, not O’Connor’s, that was ascendant in George W. Bush’s Washington. O’Connor herself would come to understand this new reality. The story of O’Connor’s disillusion with the GOP—and with Bush himself—was the story of her last years on the bench and the final transformation of the Rehnquist Court.
There were early hints that the Bush administration would head in a direction that O’Connor did not expect. The Ashcroft choice was one, and September 11 was another. She and Stephen Breyer were together in India on the day of the attacks, planning to meet with local judges, and they had to struggle for days to secure travel arrangements home. But it was O’Connor’s little-noticed reaction to the attacks that showed another way she was slipping away from the Bush orbit.
As with Kennedy, world travel played an important part of O’Connor’s ideological journey. Even after O’Connor turned seventy, in 2000, she remained the Court’s most indefatigable tourist. (Ginsburg’s secretary, who fielded many invitations from the groups that O’Connor had already visited, joked that O’Connor had been so many places that she must have a secret twin sister.)
In her no-nonsense way, O’Connor took advantage of the fact that she was the only celebrity on the Court, showing the country and the world that a woman could serve at the highest level of government. In that respect, her mere presence was sometimes the only message she wanted to impart, but often, especially in later years, O’Connor tried to get across more pointed ideas. She led a delegation of judges to China for the first court-to-court