The Nine [114]
O’Connor wanted to see the ruins of Ground Zero before they stopped smoldering. On September 28, 2001, when travel to New York was still difficult, O’Connor and her husband kept a long-standing appointment to preside over the groundbreaking of a new building at New York University Law School. (This was her seventh visit to NYU—an institution to which she had no special ties—and she made similar repeat visits to many other law schools around the country.) With the grace of a skilled politician, she began her remarks with reflections on the moment in history. “As the Irish-man said, before I speak, I want to say something,” she began. “John and I have come to New York City from time to time, as westerners do, especially in the twenty years since I myself have been an East Coast resident…. We made a detour early this morning, to go down to the end of the island to get a glimpse, if we could, of the incredible damage done on September the eleventh. I am still tearful from that glimpse.” As if on cue, a siren began blaring, the nearly constant background noise of those traumatic days in New York. It wasn’t a day for an ordinary speech, and O’Connor did not give one.
“The trauma that our nation suffered will [alter] and has already altered our way of life,” O’Connor said, “and it will cause us to reexamine some of our laws pertaining to criminal surveillance, wiretapping, immigration, and so on. It is possible, if not likely, that we will rely more on international rules of law than on our cherished constitutional standards for criminal prosecutions in responding to threats to our national security. As a result, we are likely to experience more restrictions on our personal freedom than has ever been the case in our country. We shall be considering and debating among ourselves all the aspects of our nation’s response to terrorism. We wish it were not necessary. We wish we could set the clock back to a time of greater peace and prosperity. But we cannot. We are forced to face the reality of a deadly enemy and of people who are willing to sacrifice everything in order to cause harm to our country. As Margaret Thatcher said, when law ends, tyranny begins.”
O’Connor was careful, as she had to be, to avoid taking any specific positions on issues that might come before the Court, but she was showing considerable prescience—and concern. Even in these first few days after the attack, O’Connor was warning about a coming clash between national security and civil liberties. She had not been impressed by the Ashcroft Justice Department and did not fully trust it to provide the appropriate balance. O’Connor’s prominent reference to “international rules” was no accident. The Bush administration had already made clear its hostility to international law and institutions, and O’Connor was laying down a subtle marker that she, in notable contrast, had a great deal of faith in the worldwide community of judges and lawyers.
The trip to India where she was stranded with Breyer a few weeks earlier was typical of her travel. O’Connor went abroad not, as Kennedy did, principally to indulge in high-flown rhetoric about the rule of law but rather as a problem solver. She had particular interests in juvenile justice and the role of women in law, and she sought out programs on these subjects. It was no coincidence that she found an ally in Breyer, the Court’s leading technocrat. He, too, liked to find practical solutions to problems—how to increase the number