The Nine [77]
In the Court itself, as a new term began in October 2000, a near silence prevailed. Controversial cases seemed to have vanished from the pipeline. For the justices, the sleepy docket was a welcome respite after the dramas of the previous year. Greeting a new group of law clerks that fall, David Souter was smiling when he made a prediction: “This is going to be a very boring year.”
PART
TWO
11
TO THE BRINK
Random chance—a freakishly close vote in the single decisive state—gave the Supreme Court the chance to resolve the 2000 presidential election. The character of the justices themselves turned that opportunity into one of the lowest moments in the Court’s history. The struggle following the election of 2000 took thirty-six days, and the Court was directly involved for twenty-one of them. Yet over this brief period, the justices displayed all of their worst traits—among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court.
The justices never liked to think of themselves as political beings, but all of them except Stevens and Souter maintained a healthy interest in the political scene. It could hardly be otherwise. Winning an appointment to the Supreme Court takes plenty of savvy, and not even total job security can slake a lifelong passion for the business of winning and losing elections.
This was especially true of Sandra O’Connor. She still loved politics and, more to the point, the Republican Party. When Rehnquist ran his occasional betting pools on elections, O’Connor’s notes to the chief always referred to the Republicans as “we” and “us.” But by 2000, the Republican Party in O’Connor’s memory was not necessarily the same as the one in real life. Her personal political trajectory followed that of her first mentor in Arizona politics, Barry Goldwater, whose Senate campaign she worked on in 1958. Where Goldwater had once personified the extreme rightward edge of the Republican Party, he came in his later years to be a kind of libertarian, uncomfortable with the social agenda of the evangelical conservatives. Goldwater believed in small government and states’ rights, but he never signed on for expressions of public piety and regulation of private conduct. Neither, for the most part, did O’Connor. (And she always remembered Goldwater’s salty response to Jerry Falwell’s assertion that “good Christians” should be wary of O’Connor’s nomination. “I think every good Christian ought to kick Falwell’s ass,” the senator said.)
There was one contemporary politician whom O’Connor really admired—Governor George W. Bush of Texas. She was an old friend of his parents and a tennis partner of the former First Lady’s. O’Connor recognized the senior Bush’s limitations as a politician, but she thought that his son, the 2000 Republican presidential nominee, had the common touch and a slogan that might have been O’Connor’s own—“compassionate conservative.” As she tracked Bush’s rise to national prominence in the late nineties, O’Connor thought his centrist appeal would win over voters and protect the Republican Party from its extremists. The justice didn’t know George W. personally, but she found him very attractive, in every sense of the word.
Sandra and John O’Connor couldn’t attend political events, in light of her position, but they still spent a great deal of time out on the town in Washington. Perhaps the best-known story about O’Connor involved her attendance,