Even A Former Justice Has to Show Some Skin to Sell Books. Some Public Service Merits Eternal Ingratitude
Sandra Day O’Connor, 83, retired as a Supreme Court Justice but still active on the judicial and book tour circuits, has been teasing the rest of us for years with hints and winks and suggestions that she may feel badly about being the deciding vote in the 5-4 Supreme Court decision that gave the country President Bush and all that he wrought over two disastrous terms.
Like the Gypsy Rose Lee of Justices, O’Connor performs her version of “Let Me Entertain You” not in minutes, but years, dropping a veiled hint here, trailing an innuendo there, encouraging her audience to think she’ll take it off, take it all off, without ever revealing much of anything.
In January 2010, O’Connor was asked whether Bush v Gore was the right decision and she danced away like this:
“I don’t know. It was a hard decision to make. But I do know this: there were at least three separate recounts of the votes, the ballots, in the four counties where it was challenged and not in one of the recounts would the election have changed. So I don’t worry.”Â
Maybe Electing Bush President Hurt the Court’s Reputation
In the summer of 2012, O’Connor acknowledged declining public approval of the Supreme Court, and the widely held public belief that the court’s decision in Bush v Gore was based on the Justices’ political views. O’Connor acknowledged the case was “a tipping point,” but did not tip her hand beyond that.
In March 2013, on Fresh Air, O’Connor responded coyly to a reporter’s claim that she had admitted to regret for her Bosh v Gore vote:
“ Well, I don’t know why he said that. I’ve not said that myself, and it’s not anything I would want to weigh in on. There’s no point in my, at this point, saying I regret some decision I made. I’m not going to do that.”Â
The reporter persisted, asking, “So you say you never really said that?”
“I hope I didn’t,” O’Connor answered, keeping hope alive with a masterful non-denial denial.Â
Tell Me, Justice O’Connor, What Were Your Feelings About Bush?
On another program around that time, another reporter called O’Connor’s attention to a photograph ff her and other justices sitting around looking bored while waiting for the 2001 Bush inaugural to start. The reporter, Rachel Maddow, served up a softball that let O’Connor slip away from any 20/20 hindsight. Maddow asked O’Connor how she felt that inauguration day:
“Well, I don’t recall any special feeling (O’Connor saying “feeling” with borderline sarcasm) about it at all. I mean, we just were dealing with cases like we’re required to do and that was a dramatic one but it didn’t, it didn’t cause you to feel different, differently somehow when you were waiting for the inauguration and killing time. (laughs)”
That was near the beginning of her current book tour to promote her book, Out of Order: Stories from the History of the Supreme Court, which the New York Times called “a disjointed collection of anodyne anecdotes and bar-association bromides.”
Always looking to pump the buzz to help her book sales, O’Connor decided to visit with the editorial board of the Chicago Tribune on April 26. Of course the editors asked her about Bush v Gore. Surprisingly, this time O’Connor showed a little ankle, as she replied:
“[The court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.’Â
The Tribune reported O’Connor saying that the case “stirred up the public” and “gave the court a less-than-perfect reputation,” before adding:
“Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
Newspaper Pros at Tribune Forget About Follow-Up Questions
Wait, what does THAT mean. The Tribune didn’t ask, or O’Connor didn’t say. What does she mean, “added to the problem” – the problem was counting the votes and the court ended the count. Problem over. Election interruptus.
O’Connor may never reveal her naked truth, and she may never stop provoking the curious with her sinuous intellectual charade. What we’ve been looking at, and looking at, and looking at seems nothing more than a well-calibrated cerebral striptease calculated to sell books, her books, her current book.
One of her earlier books is “The Majesty of the Law,” already a problem with a title that seems to put law over justice, but never mind, she won’t show it all, law or justice. She’s the Ed Meese of the Supreme Court, throwing an intellectual censor’s blanket over the figure of naked power, lest ordinary folks get overstimulated by the sight of a blindfolded, scale-holding, ripe young woman’s naked upper body.
Subtle, sometimes, O’Connor has never seemed anything but partisan. When Chief-Justice-to-be William Rehnquist was busy suppressing black and Latino voters in Arizona in the 1960s, he and O’Connor were ambitious, activist Republicans together. Â Voter suppression has been a standard Republican technique at least since 1964 and right up to the present. Voter suppression was at the core of the Florida election decided in Bush v Gore. O’Connor is not on record disavowing voter suppression when Rehnquist did it, or when Republicans do it now, and she has not raised it in relation to Bush v Gore.
For O’Connor, the Personal Was Political in the Old Way
Her Bush v Gore vote was laden with conflict of interest as well as partisanship. The partisanship is obvious with O’Connor, whose political and legal mentor was William Rehnquist, whom she dated while they were both at Stanford Law School.
O’Connor’s  conflict of interest was known at the time: she wanted to retire to care for her ailing husband but, bowing to partisanship, not when a Democrat was President. Voting for Bush gave her a way out so she could spend more time with her husband who had begun suffering from Alzheimer’s in 1989 and would die in 2009, a genuinely sad human story.
In time, O’Conner was visited by rough justice for her choice, as her husband drifted away, fell in love with someone else, and no longer knew who she was. But there’s not a lot of evidence she knew who she was, either.
In 2009, Obama gave her the Presidential Medal of Freedom, the highest civilian honor of the United States, though it’s hard to see why. Â Perhaps he reasoned that without her vote for Bush, the country would not have gone to endless war that goes on racking up endless debt and created the conditions that made his otherwise improbable presidency possible.
In all fairness, while O’Connor failed to measure up to the judicial stature of her predecessor, Potter Stewart, it’s pretty clear that even the lower bar she set will not be cleared by her successor, Samuel Alito.
The problem with a strip tease is that one expects it to reveal something worth seeing by the end.
With O’Connor, as Gertrude Stein might well have noted, “There’s no there there.”
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