The Nine [190]
O’Connor’s decision to disclose this painful family secret surprised many of her friends, but it reflected her practical, problem-solving nature. By going public, O’Connor thought she could comfort or help other families in similar situations; she could not resist the chance to be of assistance. A few months later, O’Connor spelled out the story in her own voice, in testimony before the Senate Special Committee on Aging. She said Alzheimer’s was “a subject that is very dear to my heart and to the hearts of the millions of American families who love and provide care to relatives who have Alzheimer’s disease. As you know, I became one of these caregivers in 1990 when my husband, John, was diagnosed with Alzheimer’s. Living with this disease has been sad and difficult for my entire family.” (The date of John’s diagnosis had never before been made public.) O’Connor asked the senators for additional funding for research on the disease and its effect on the families of its victims.
The story about John remained, however, a sidelight in the former justice’s peripatetic travels around the country. Most of the time, she gave speeches about the twin causes that she had made her focus—judicial independence and civic education for young people. To that end, O’Connor became a spokeswoman for a nonprofit organization called Games for Change, which created video games placing children in positions of decision-makers, like judges. “Had someone told me when I retired from the Supreme Court, that I would be presenting at a conference on digital media, I would have reacted with extreme skepticism,” she said at one such conclave in New York. Even in this ostensibly apolitical venture, O’Connor reflected the alienation from the Republican cause that had been so obvious during her last years on the bench. She was drawn to the video game project after seeing the “increasingly vitriolic attacks against the Judiciary,” as in the Terri Schiavo case. The games, like her speeches, were an attempt to educate the public on the need for strong and independent judges. She quipped, “I always thought that an activist judge was a judge that got up every day and went to work.” Well into her eighth decade, O’Connor still did.
The Court’s decisions, earlier in the decade, banning the death penalty for juvenile offenders and the mentally retarded took place in a changing political climate for executions. Polls showed that support for the death penalty, while still substantial, was lower than at any point since the 1970s. Explanations for this change varied, but it almost certainly had something to do with declining crime rates and many highly publicized examples of innocent prisoners freed from death row as a result of new DNA evidence. Emboldened by the changing environment, death penalty opponents took on a new target—the method of executions used by most states. Defendants argued that lethal injection amounted to cruel and unusual punishment, in violation of the Eighth Amendment.
The case which reached the court, Baze v. Rees, became another example of how the liberals—specifically Stevens and Breyer—were a different breed than their earlier counterparts, like William Brennan and Thurgood Marshall. The evidence in the case was ambiguous; the execution protocol, known as a “cocktail,” had been established in a haphazard way, but there was not much proof about how much pain it caused defendants. This uncertainty was enough to push Breyer, who was always searching for facts rather than theories, to side with the conservatives. “I cannot find, either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the ‘significant and unnecessary risk of inflicting severe pain’ that petitioners assert,” Breyer wrote in an opinion concurring in the judgment.
More surprising, perhaps, was that Stevens also joined the majority, which meant the vote in the case was 7–2 to uphold lethal injections. In his separate opinion, Stevens announced that he had seen