The Nine [3]
Nine years later, Ronald Reagan made O’Connor the first woman justice. Her long history with Rehnquist might have suggested that she would turn into his loyal deputy, but that never happened. Indeed, more than anyone else on the Court, it was O’Connor who frustrated Rehnquist’s hopes of an ideological transformation in the law and who came, even more than the chief, to dominate the Court. And though her grief for Rehnquist was real, she may have been weeping for herself, too. She was seventy-five and her blond bob had turned white, but she loved being on the Supreme Court even more than Breyer did, and she was leaving as well. She had announced her resignation two months earlier, to care for her husband, who was slipping further into the grip of Alzheimer’s disease. Losses enveloped O’Connor—a dear old friend, her treasured seat on the Court, and, worst of all, her beloved husband’s health.
And there was something else that drew O’Connor’s wrath, if not her tears: the presidency of George W. Bush, whom she found arrogant, lawless, incompetent, and extreme. O’Connor herself had been a Republican politician—the only former elected official on the Court—and she had watched in horror as Bush led her party, and the nation, in directions that she abhorred. Five years earlier, she had cast the decisive vote to put Bush into the White House, and now, to her dismay, she was handing over her precious seat on the Court for him to fill.
Finally, at the top of the stairs, was John Paul Stevens, then as ever slightly removed from his colleagues. Gerald R. Ford’s only appointee to the Court looked much as he did when he was named in 1975, with his thick glasses, white hair, and ever-present bow tie. Now eighty-five, he had charted an independent course from the beginning, moving left as the Court moved right but mostly moving according to his own distinctive view of the Constitution. Respected by his colleagues, if not really known to them, Stevens always stood apart.
The strain from the march up the forty-four steps showed on all the pallbearers except one. The day before carrying Rehnquist into the Supreme Court for a final time, John Roberts had been nominated by President Bush to succeed Rehnquist as chief justice. He was only fifty years old, with an unlined face and unworried countenance. Even with his new burdens, Roberts looked more secure with each step, especially compared with his future colleagues.
The ceremony on the steps represented a transition from an old Court to a new one.
Any change would have been momentous after such a long period of stability in membership, but Rehnquist’s and O’Connor’s nearly simultaneous departures suggested a particularly dramatic one—generational, ideological, and personal. Conservative frustration with the Court had been mounting for years, even though the Court had long been solidly, even overwhelmingly, Republican. Since 1991, it had consisted of either seven or eight nominees of Republican presidents and just one or two Democratic nominees. But as the core of the Republican Party moved to the right, the Court, in time, went the other way. Conservatives could elect presidents, but they could not change the Court.
Three justices in particular doomed the counterrevolution. Souter, drawing inspiration from icons of judicial moderation like John Marshall Harlan II and Learned Hand, almost immediately turned into a lost cause for the conservatives. Like travelers throughout history, Kennedy was himself transformed by his journeys; his internationalism translated into a more liberal approach to legal issues. Above all, though, it was O’Connor who shaped the Court’s jurisprudence and, with it, the nation.
Few associate justices in history dominated a time so thoroughly or cast as many deciding votes as O’Connor—on important issues ranging from abortion to affirmative action, from executive war powers to the election of a president. Some might believe Cass Gilbert’s marble steps really did protect the justices from the gritty world of