The Nine [119]
The implicit question at the heart of the retired officers’ brief was, if affirmative action was good enough for the service academies, why wasn’t it good enough for the University of Michigan?
And that, precisely, was what Sandra O’Connor was asking herself.
17
THE GREEN BRIEF
The period leading up to the Grutter and Gratz decisions—the early part of 2003—was not an easy time for O’Connor. Her husband John’s condition had continued to deteriorate. He had started to accompany her to work every day, and the justice hired his former secretary to keep an eye on him as he sat on the couch in her office, chatting or reading the newspaper. No one uttered the word Alzheimer’s at the Court, but the nature of John’s problem was increasingly obvious to all.
The justice and her husband would arrive together in time for her exercise class in the morning, stay through their lunch together, and then return home at about two, when she would read briefs. Even then, they never stopped going out at night, to embassy parties, museum openings and the like, just as O’Connor had continued making the rounds fifteen years earlier, when she was weakened by her chemotherapy for breast cancer. In her forthright, determined way, O’Connor did not believe in making concessions to illness, her own or anyone else’s.
O’Connor’s own health was fine, despite a persistent tremor that she had had for years. For her morning exercise class, she added salsa dancing to step aerobics and Pilates. She still loved the work of the Court and always sought more of it. O’Connor never signed on to Rehnquist’s crusade to cut the Court’s docket and thus was always urging her clerks to scour the petitions for cases where she could vote for cert. “Find us some good cases!” she would say.
Still, like many older people, O’Connor resisted changes to her routine, especially the one promised by an impending renovation project at the Court. The building had not been upgraded since it opened in 1935, and Rehnquist had prevailed upon Congress to fund a full overhaul. Each of the justices would have to vacate his or her chambers for a while, and O’Connor was slated to be the first evacuee, in 2004. A pack rat who loved her view and her office, especially now that John was joining her there every day, O’Connor dreaded the prospect of moving to the Siberia of the Court’s second floor.
By now, O’Connor usually had little trouble making up her mind about how to vote. She assigned one clerk to write a bench memo on each case to be argued and then invited the other clerks to write countermemos if they did not agree with their colleague’s recommendation. This was the year that O’Connor cut back to a five-day schedule—there were no more crockpot lunches for her clerks on Saturdays—but she still went over each case with them before oral arguments. She did not agonize. Having laid out her views for her clerks, she had them help her craft some questions for the lawyers for both sides. She didn’t believe in playing devil’s advocate, either. The tilt of her questions at oral argument almost always showed the way she was going to vote.
But Grutter and Gratz were different. They were not easy cases for O’Connor. This time, she did agonize. In the first place, the stakes were enormous. Unlike some high-profile cases before the justices, the Michigan lawsuits had more than symbolic importance. Admissions decisions for thousands of students were at stake, and so, less directly, was all affirmative action in government and private companies. (In contrast,