The Nine [140]
In her final year on the Court, O’Connor advocated vigorously for the system that made possible all that she had done. Only an independent Supreme Court kept the government tethered to the core values of the Constitution. To O’Connor, the fight for judicial independence had never been more important, because she and her cause now had powerful adversaries—the political party she had once loved and the president she had once installed in office.
For all the challenges she faced, it was still a great time in O’Connor’s life. She was a healthy seventy-five-year-old woman working in a job that she adored, one that had given her the chance to be the most important woman in American history. She reviled the current administration, but she had the world’s best platform to speak out against its abuses. She was more influential than ever, the critical vote on issue after issue, and she reveled in that responsibility. In Breyer, O’Connor had found a true friend and ally—her first since Powell left the bench many years earlier.
But as the months passed in 2005, O’Connor did not have the chance to savor her good fortune. After a period of some stability, her husband’s health was again declining. John did not take well to her move to the second-floor chambers. Worse, he began to exhibit one of the most heartbreaking symptoms of Alzheimer’s disease, a penchant to wander. If he was not watched at all times, John simply left her chambers. Several times Court personnel tracked him down just before he got outside, where he could have been lost, injured, or worse. Even with all the resources available to a Supreme Court justice, the situation was becoming unmanageable.
John’s comments on election night in 2000 about Justice O’Connor’s wish to resign had leaked to the press soon after the decision in Bush v. Gore, so speculation about her retirement had been incessant. O’Connor enjoyed public attention and sought publicity, but only on her own terms. Aware that reporters would ask her friends and colleagues if they knew about her plans, she never discussed the subject with them. O’Connor said little even to her three sons about what she should do. But by the end of the Court’s term in June 2005, there really wasn’t much to debate. She had not outsourced her boys’ upbringing, she said, and she was not going to outsource John’s care either.
A few days before the end of the term, O’Connor asked to see Rehnquist in his chambers. More than on any other subject, the justices respected each other’s privacy on the question of retirement, but the issue couldn’t wait anymore. So, more than fifty years after they met at Stanford, the two old friends sat opposite each other and talked about their future.
“Bill, I think John needs me. I think I need to go, but I don’t want to leave the Court with two vacancies,” she said.
The chief said he couldn’t know how his disease would progress, but he was stable at the moment and his doctors had hope. He had returned to the bench on March 21, 2005, after five months away, and he had presided for the last weeks of the term with his tracheotomy tube still in place. “I think I can make it another year,” Rehnquist said. “I’m not going to resign.” O’Connor was willing to stay one more year and in some ways wanted to remain on the Court. But the chief’s desire to hang on for another term meant that it would be two years until she could retire, and she didn’t think John could wait that long for her. Rehnquist had forced her hand and thus delivered O’Connor’s seat—the crucial one on the Court—to George W. Bush.
The final day of the term was Monday, June 27, and the courtroom was packed in anticipation of news of a possible retirement—Rehnquist’s. But the chief merely closed the Court’s term with best wishes for a good summer, and the thought