The Nine [189]
This is as it should be. Cass Gilbert’s steps represent at some level a magnificent illusion—that the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the Court we deserve.
AFTERWORD
TO THE ANCHOR EDITION
Then, in the 2007–2008 term, the Supreme Court took a breath. There were, as ever, some important cases on the docket, but the year as a whole had an air of contingency. The justices were doing their work and completing their assignments, but they left the impression that they, no less than the rest of the country, were waiting for the results of the presidential election.
It is always difficult to know, of course, how much of the relative quiet of the term, particularly compared to the drama of the previous year, was due simply to the luck of the draw; fewer important cases happened to be in the pipeline. But there were small signs, too, that the conservatives—especially Chief Justice Roberts—had at least a moment’s hesitation about the Court’s headlong rush to the right in the previous year. Breyer’s warning on the last day of that term—“It is not often in the law that so few have so quickly changed so much”—appeared to have an effect. Thanks to Breyer’s caution, and the decisions at the end of that term, Roberts’s honeymoon with the Democrats who supported him was over. Roberts’s efforts to portray himself as a consensus builder or a centrist looked hollow, or even deceptive.
Among congressional Democrats (and even some Republicans), the 2007 decision that generated the most outrage was Lilly Ledbetter’s job discrimination case against Goodyear Tire and Rubber Company, which the justices threw out under a new and highly restrictive reading of the statute of limitations. Ledbetter herself became a celebrity of sorts, and a bill in Congress to change the law in her favor was christened the Lilly Ledbetter Fair Pay Act. With a veto promised by President Bush, the law did not pass both houses of Congress, but the fairly broad support for it represented a clear sign of bipartisan displeasure. So, coincidentally or not, the 2007–2008 term turned out to be a good one for suits claiming employment discrimination. In five such cases, the Court ruled for the plaintiff each time—and always with at least seven votes. One case was unanimous, and only Thomas voted for the corporate defendants in each of the other four. Those lawsuits, decided early in the term, suggested that the new year would not be another conservative rout.
In one respect, though, the 2007–2008 term resembled prior years because Sandra Day O’Connor, even in retirement, remained the justice best known to the public, and the one recognized for her life as much as for her work.
The new chapter of her life began in November 2007, when Veronica Sanchez, a television news reporter in Phoenix, called a local nursing home to do a story about the phenomenon of “mistaken attachments” among patients with Alzheimer’s disease. In this syndrome, patients can forget their relationships with their spouses and other relatives and “fall in love” with the people they see everyday, usually other patients. At the last minute, Sanchez’s original story on the subject fell apart, but the nursing home directed her to another facility, the Huger Mercy Living Center, where she was told there were two families who were willing to cooperate. One of them, the director of the center told Sanchez, was Sandra Day O’Connor’s.
Sanchez, of course, was flabbergasted, but she spoke to Scott O’Connor, the justice’s son, who lives in Phoenix, and he assured the reporter that his mother would approve the story. Scott ultimately gave Sanchez an on-camera interview, and he allowed her crew to photograph his father with the object of his apparent affection. The story on KPNX television caused a worldwide sensation, focusing attention on this little-known aspect of Alzheimer’s disease