Out of Order: Stories from the History of the Supreme Court

by Sandra Day O'Connor

Overview

NEW YORK TIMES BESTSELLER • From the first woman to sit on the United States Supreme Court comes this fascinating book about the history and evolution of the highest court in the land.

“[A] succinct, snappy account of how today’s court—so powerful, so controversial and so frequently dissected by the media—evolved from such startlingly humble and uncertain beginnings.”—The New York Times
 
Out of Order sheds light on the centuries of change and upheaval that transformed the Supreme Court from its uncertain beginnings into the remarkable institution that thrives and endures today. From the early days of circuit-riding, when justices who also served as trial judges traveled thousands of miles per year on horseback to hear cases, to the changes in civil rights ushered in by Earl Warren and Thurgood Marshall; from foundational decisions such as Marbury v. Madison to modern-day cases such as Hamdi v. Rumsfeld, Justice O’Connor weaves together stories and lessons from the history of the Court, charting turning points and pivotal moments that have helped define our nation’s progress.
 
With unparalleled insight and her unique perspective as a history-making figure, Justice O’Connor takes us on a personal exploration, painting vivid pictures of Justices in history, including Oliver Wendell Holmes Jr., one of the greatest jurists of all time; Thurgood Marshall, whose understated and succinct style would come to transform oral argument; William O. Douglas, called “The Lone Ranger” because of his impassioned and frequent dissents; and John Roberts, whom Justice O’Connor considers to be the finest practitioner of oral argument she has ever witnessed in Court. We get a rare glimpse into the Supreme Court’s inner workings: how cases are chosen for hearing; the personal relationships that exist among the Justices; and the customs and traditions, both public and private, that bind one generation of jurists to the next—from the seating arrangements at Court lunches to the fiercely competitive basketball games played in the Court Building’s top-floor gymnasium, the so-called “highest court in the land.”
 
Wise, candid, and assured, Out of Order is a rich offering of inspiring stories of one of our country’s most important institutions, from one of our country’s most respected pioneers.

Product Details

ISBN-13:	9780812984323
Publisher:	Random House Publishing Group
Publication date:	02/25/2014
Edition description:	Reprint
Pages:	256
Sales rank:	989,649
Product dimensions:	5.20(w) x 7.97(h) x 0.57(d)

About the Author

Sandra Day O’Connor was born in El Paso, Texas, and raised on the Lazy B Ranch. She attended Stanford University, where she took Wallace Stegner’s writing course. She began her public service in Phoenix, and was majority leader of the Arizona Senate before becoming a judge. She is the author of Lazy B, a memoir about growing up in the Southwest, and The Majesty of the Law, a reflection on American law and life. President Reagan nominated her as Associate Justice of the Supreme Court of the United States, and she served from 1981 to 2006. She serves as Chancellor of the College of William & Mary, and is on the board of trustees of the National Constitution Center in Philadelphia.

Read an Excerpt

Looming Large

Historic Intersections of the President

and the Supreme Court

The role of the judicial branch in our system of government differs markedly from that of the executive branch. Each shoulders substantial powers and obligations under the Constitution. Whereas the Executive enforces the law, however, the Supreme Court interprets the law and has no power to command obedience or appropriate funds to enforce its orders. Whereas the President is elected by the people and serves for limited terms, federal judges are appointed by the President with the advice and consent of the Senate and serve for life. Whereas the Executive reflects the political will of the majority, the judiciary is designed to check assertions of power by the political branches. It thus comes as little surprise that throughout history, the Executive and the Supreme Court have intersected, overlapped, and even clashed.

A story is told that William Howard Taft once found himself stranded at a small country railroad station. Informed that the express train would stop only for a large group of passengers, Taft wired the conductor: “Stop at Hicksville. Large party waiting to catch train.” When the train stopped, Taft boarded, alone. He then turned to the confused conductor. “You can go on ahead,” he declared. “I am the large party.”

We laugh at that story because we remember that Mr. Taft, at his heaviest, tipped the scales at over three hundred pounds. But as the twenty-seventh President of the United States and the tenth Chief Justice of the United States, he also was the only person ever to have tipped the scales by holding both of those incredibly “large” offices—experiencing firsthand the responsibility of heading two of the most significant institutions in the free world. His time in these two roles put him on two different sides of the same constitutional coin.

Indeed, our remarkable Constitution recognizes the individual “largeness” of these governmental bodies while acknowledging that their relative strengths will at times coexist, at times collide, and nearly always manage to carry out the will of the majority while safeguarding the rights of the minority. A look at the dynamic between these two institutions speaks volumes about the genius of our Constitution.

To find an example of the judiciary and the presidency surviving the collision of two larger-than-life personalities, we need not travel very far into the early days of our republic. Second cousins John Marshall and Thomas Jefferson were anything but the kissing kind. Indeed, their relationship was privately nasty and publicly only slightly better. Their exchanges—well documented, but not well-mannered—planted the seeds for an all-out war over the proper role of the judiciary vis-à-vis the other branches of government, and set the trajectory of constitutional law as we know it today.

Jefferson almost was not our third president, coming to the post only after the House of Representatives broke an electoral tie vote in his race with Aaron Burr. Marshall almost was not our fourth Chief Justice, receiving the nomination from John Adams only after first choice John Jay declined reappointment. But once fate brought them to their respective positions of authority in 1801, Jefferson and Marshall came to blows in ways that put even today’s climate of political acrimony to shame.

Early in his administration, Jefferson attempted to have Marshall impeached. He accused him of “irregular and censurable” behavior.1 In Marshall’s hands, Jefferson lamented, “the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice.”2 He spoke vehemently of his bitter disappointment in his own appointees to the Supreme Court, calling them “lazy” and weak for not standing up to the “crafty chief judge.”3

Marshall, in turn, labeled Jefferson “totally unfit” for the presidency.4

Jefferson called the Chief Justice a man “of lax lounging manners . . . and a profound hypocrisy.”5 Over time, these two actors played out a rather hateful drama, rooted in personal animus and fundamental disagreement as to the proper role of government and the appropriate balance between the judicial and executive branches.

History teaches us that it was Marshall’s decision in Marbury v. Madison that permanently legitimated and strengthened the Supreme Court and that gave the Chief Justice his least obvious but perhaps greatest victory over the President. Many say that that case, which came to stand for the authority of the Court to review the acts of the political branches, might as well have been captioned Marshall v. Jefferson.

Here is what happened. In the watershed 1800 election, Marshall’s Federalist Party lost control of the executive and the legislative branches to Jefferson’s Republicans, and in an effort to retain some presence in government, the Federalists decided to pack the Court before they left office. President Adams appointed Marshall, then the secretary of state, as Chief Justice, and Congress passed a number of pieces of legislation to restructure the court system and provide the lame-duck Senate and outgoing President Adams with many new positions to fill. Adams filled them—or thought he did—through a series of midnight appointments.

But Jefferson fought back. When he took office as President, he refused to deliver the commissions of some of the Adams appointees. When William Marbury, an appointed judge who didn’t get his commission, sought a court order compelling the administration to deliver his commission, the case made its way to the Supreme Court.

Chief Justice Marshall, to the surprise of many, denied the order that would have forced his nemesis Jefferson to issue the judicial commissions. That might have seemed like a victory for the new President.

But the “victory” that Marshall handed to Jefferson came with a silver lining for the Court and for himself. Marshall and the Court denied the order to grant Marbury’s commission on the grounds that the part of the Judiciary Act of 1789 that had given the Supreme Court the power to issue such orders was contrary to the Constitution.

Writing for a unanimous Court in 1803, Marshall declared “that courts, as well as other departments, are bound by [the Constitution]” and, more important, that it is “emphatically the province and duty of the judicial department” to say what the Constitution means.6

In one fell swoop, Marshall gave up a small power that Congress had conferred upon the Court and took in exchange an even larger, overarching power—to examine and decide the ultimate constitutionality of all acts of Congress that one challenged in Court. Despite the vehement disagreement of his cousin Thomas Jefferson, this bold assertion by John Marshall about the power of the Court has survived as the final and official answer to this day. Today, portraits of Marbury and Madison hang in the Justices’ private dining room in the Supreme Court—an ongoing reminder of how the Court established its role as a coequal branch.

The lessons to be learned from the story of Jefferson and Marshall are many. It is the story of a government that develops and evolves, that grows and changes, over time. It is the story of large institutions competing and accommodating and evolving in ways that may both amaze and alarm us. Perhaps even more significant, it is a story that begins a distinctively human thread that is woven throughout all of the Court’s history: The judiciary and the presidency are inhabited by real people, with real emotions, real foibles, and a very real—if sometimes conflicting—commitment to doing what is right.

A second historic moment of interaction between the presidency and the judiciary stars President Abraham Lincoln and Chief Justice Roger Brooke Taney. It represents one of the only times a sitting president has deliberately defied a direct court order.

In the early days of the Civil War, the fragile American nation faced serious threats from within. The Southern states had broken away, and European powers were poised to intervene, to divide the young nation permanently into Union and Confederacy. The war posed another sort of danger—a danger less obvious, perhaps, than columns of soldiers marching through the countryside but far more insidious to a nation “conceived in Liberty.” It was the danger that a government at war might use its extraordinary powers to stamp out political opposition. In April 1861, a trainload of Union soldiers passed through Baltimore en route to Washington, summoned to man the defensive fortifications around the capital. They were greeted by an angry mob of Southern sympathizers and had to fight their way across Baltimore to reach the station where their train to Washington was waiting. Later that night, local authorities who favored the South sabotaged the bridges and telegraph lines connecting Baltimore and Washington. Their story was that they feared the soldiers might return and seek revenge for the riot, but their actions endangered the Union by cutting off the two critical cities.

With Congress out of session, President Lincoln found himself alone in the capital with the rebel army closing in from the south and an apparent insurrection brewing to the north. Taking action as commander in chief, he directed local military leaders to secure the railroad line from Washington to Philadelphia, and allowed them to suspend “habeas corpus” in that pursuit. Sometimes called the “Great Writ,” habeas corpus is the relief that a prisoner requests from a court when they are seeking release from unlawful detention. Thus, by suspending the writ, Lincoln was effectively permitting the Union army to arrest civilians without a warrant, without probable cause, without a speedy jury trial—indeed, without any process at all. Mr. John Merryman, a member of the Maryland legislature who had been recruiting rebel soldiers, was arrested by a Union general under this scheme, and hauled off to Fort McHenry in Baltimore Harbor.

In those days, Justices of the Supreme Court were still “riding circuit”—literally riding their horses in circles around the country to sit as federal judges on lower courts in addition to their service on the Supreme Court. Accordingly, Merryman’s plea for relief from detention was directed at his local circuit judge, who happened to be Chief Justice Taney. Taney was no friend of Lincoln’s administration. Upon receiving Merryman’s plea, he ordered Merryman’s jailer at Fort McHenry to bring Merryman to the court, a command that is the essence of habeas corpus relief. (Habeas corpus literally translates as something like “present the body.”) The commander refused, sending Taney an aide instead with the message that the President had authorized the colonel to suspend the Great Writ.

Taney was livid. He wrote an incendiary decision, holding that it was for Congress, and only Congress, to suspend the writ of habeas corpus. The President’s job was only to see that the laws be “faithfully executed.”7 He could not change the nation’s laws to suit his interests, even in times of war.

Lincoln gave Taney no response until Congress reconvened a month later, on July 4. At that point, he let loose his own barrage of heated rhetoric, some of which still echoes to this day. Lincoln noted that the Confederacy had renounced the Constitution under which Taney had purported to invalidate the President’s actions and argued that, had he not acted when he did, Washington would have fallen into Southern hands and there would have been no Congress to respond to the rebellion. He famously asked: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”8

In any event, Congress retroactively approved Lincoln’s decision to suspend the writ and Merryman was never released. Scholars remain divided on the question whether Lincoln had the power to act as he did under the Constitution’s “Suspension Clause,” which says only that habeas corpus shall not be suspended “except when in cases of rebellion or invasion the public safety may require it.” Because it appears in the part of the Constitution that deals with Congress’s powers, some say suspension is for Congress alone. On the other hand, because it appears to permit suspension “in cases of rebellion” and it is the President who never takes a recess and must always safeguard the nation as commander in chief, others say that Lincoln did only what the Constitution permits. This is not the place for me to offer my own views in that debate. Suffice it to say that Lincoln won the debate in his own day, especially because Congress itself eventually sided with him in March 1863. And to his immense credit, Lincoln did not use this express authorization from Congress to trample on the civil liberties that the writ of habeas corpus was meant to protect.

Recent historical studies have made clear that Lincoln never tried to suppress political dissent, and always understood that a democracy grows stronger by allowing the people to voice their opposition to government, even in the midst of war. He appreciated that the strength of the Union lay not only in force of arms but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And he no doubt would have been pleased to know that, soon after his assassination and the conclusion of the war, his predictions that habeas corpus would quickly be reinstated came to pass. In his words, “what constitutes the bulwark of our own liberty and independence” is “not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army,” but rather “the love of liberty” and “the preservation of the spirit which prizes liberty as the heritage of men, in all lands, everywhere.”9

In this way, what might otherwise be remembered as a clash between these two “large” historic figures can be seen as a moment of large respect for the rule of law by both the President and the Chief Justice. The constitutional debate sparked by Lincoln and Taney rages on even now. But we would do well to look beyond the conflict and to appreciate the character of the men behind the story. Their sincere, even if conflicting, examples of dedication to principle—and to the people of a struggling nation—loom large to this day.

A third, well-known account of the intersection between the large scopes of influence of the judiciary and the presidency is found in the story of President Franklin D. Roosevelt’s Judiciary Reorganization Bill of 1937. Roosevelt’s bill, more commonly known as the “court-packing plan,” would have increased the number of Supreme Court Justices from nine to fifteen. Indeed, the current head count of nine is engraved neither in stone nor in the Constitution, and could very well have turned out differently had Roosevelt had his way.

President Roosevelt cited the heavy workload and advancing age of many of the Supreme Court’s then-sitting Justices to justify his proposed increase in ranks. However, historians have long focused on what is widely believed to be the real reason for his plan: According to accepted wisdom, Roosevelt was more than a little annoyed at the current Justices. The Court had been giving a thumbs-down to so much of his “New Deal” legislation—various economic programs targeted at redressing the aftermath of the Great Depression.

Table of Contents

Introduction xi

Looming Large

Historic Intersections of the President and the Supreme Court 3

The Call to Serve

Judicial Appointments 21

A House is Not a Home

The Journey to One First Street 43

Humble Beginnings

The First Decade of the United States Supreme Court 52

Itinerant Justice

Riding Circuit 59

The Supreme Court's Changing Jurisdiction 74

Golden Tongues

Oral Advocacy Before the Court 79

Customs and Traditions of the Court 99

Some Laughs on the Bench 115

Larger-Than-Life Justices 125

Gone But Not Forgotten

Judicial Retirement 143

Supreme Court "Firsts" 152

Appendix A The Declaration of Independence of the United States of America 167

Appendix B The Constitution of the United States 173

Notes 201

Photograph Credits 217

Index 219

What People are Saying About This

From the Publisher

Advance praise for Out of Order
 
“In this delightful collection of tales, Sandra Day O’Connor shows us the personal side of the Supreme Court while reminding us of the critical role the Court plays. It’s a lovely book—and a valuable treasure for all Americans.”—Walter Isaacson, author of Steve Jobs
 
“A maker of history, Sandra Day O’Connor proves herself an engaging historian in this fine book, taking us inside perhaps the most important and least understood institution in American life: the Supreme Court. With her characteristic clear-eyed common sense and a natural talent for storytelling, Justice O’Connor has given us a valuable and entertaining gift.”—Jon Meacham, author of Thomas Jefferson: The Art of Power
 
“We have always known that Sandra Day O’Connor was a wise and thoughtful Justice of the Supreme Court. But we haven’t always appreciated what a talented storyteller and historian she is as well. This, her most recent book, contains succinct and readable stories from the history of the Supreme Court, and it nicely demonstrates that remarkable talent.”—Gordon S. Wood, author of The Idea of America
 
“Justice O’Connor has written an insightful and charming insider’s take on the workings of the Supreme Court of the United States throughout history. A historical figure herself—the first woman to sit on the Court—O’Connor is the perfect guide through the twists and turns that have made the Court such a powerful force in shaping American society from the Founding to present times.”—Annette Gordon-Reed, author of The Hemingses of Monticello
 
“Justice O’Connor has written a brief  history of the Supreme Court that is lively, informative, and often inspiring. Drawing on her own experience and wisdom, she is giving us a civics lesson, but it’s like nothing you remember from high school.”—Evan Thomas, author of Ike’s Bluff

Editorial Reviews

A brief and accessible history of the nation’s highest court, narrated by a true historical figure and a jurisprudential giant.”—The Boston Globe

“A vibrantly personal book [that] displays O’Connor’s uncommon common sense, her dry wit and her reverence for the nation’s institutions.”—Richmond Times-Dispatch
 
“Full of riveting anecdotes . . . a compact history . . . albeit a more lighthearted, personality-filled one than you might find in a high school classroom.”—Associated Press
 
“Candid, opinionated and even entertaining throughout . . . a well-considered, lively survey of what the Supreme Court does, how it’s constituted and, bonus round, how to argue before it.”—Kirkus Reviews

“In this delightful collection of tales, Sandra Day O’Connor shows us the personal side of the Supreme Court while reminding us of the critical role the Court plays. It’s a lovely book—and a valuable treasure for all Americans.”—Walter Isaacson, author of Steve Jobs
 
“A maker of history, Sandra Day O’Connor proves herself an engaging historian in this fine book, taking us inside perhaps the most important and least understood institution in American life: the Supreme Court. With her characteristic clear-eyed common sense and a natural talent for storytelling, Justice O’Connor has given us a valuable and entertaining gift.”—Jon Meacham, author of Thomas Jefferson: The Art of Power
 
“We have always known that Sandra Day O’Connor was a wise and thoughtful Justice of the Supreme Court. But we haven’t always appreciated what a talented storyteller and historian she is as well. This, her most recent book, contains succinct and readable stories from the history of the Supreme Court, and it nicely demonstrates that remarkable talent.”—Gordon S. Wood, author of The Idea of America
 
“Justice O’Connor has written an insightful and charming insider’s take on the workings of the Supreme Court of the United States throughout history. A historical figure herself—the first woman to sit on the Court—O’Connor is the perfect guide through the twists and turns that have made the Court such a powerful force in shaping American society from the Founding to present times.”—Annette Gordon-Reed, author of The Hemingses of Monticello
 
“Justice O’Connor has written a brief  history of the Supreme Court that is lively, informative, and often inspiring. Drawing on her own experience and wisdom, she is giving us a civics lesson, but it’s like nothing you remember from high school.”—Evan Thomas, author of Ike’s Bluff

From the Publisher

The reason to read Out of Order is to get Justice O'Connor's succinct, snappy account of how today's court—so powerful, so controversial and so frequently dissected by the media—evolved from such startlingly humble and uncertain beginnings that it initially seemed like a jerry-built enterprise constructed on entirely ad hoc principles.

The New York Times - Michiko Kakutani

The first female Supreme Court justice attempts to shed light on some of its transformations, offering "snapshots of the people and events that reflect the Court’s evolution and journey." Since its inception in 1790, the Court has had its share of colorful characters, landmark cases, and an early history that belies its contemporary status as a well-respected institution. O’Connor tells tales of memorable justices—including former president William Howard Taft and first Chief Justice John Jay—and admits to how overwhelming her first day on the job was. She relates how presentations to the court are often nervously made by lawyers, who were famously advised back in 1940 to "rejoice when the Court asks questions." There are no longer interminable oral arguments, because "the Court’s modern practice has homed in on the legal, rather than the emotional, aspects of the case." O’Connor profiles four justices she deems larger than life, and includes a chapter, "Some Laughs on the Bench," that, though amusing, are not exactly belly laughs. The book is rounded out with the text of the Declaration of Independence, the Constitution of the United States, and an admirable series of notes. (Mar.)

Publishers Weekly

Former Supreme Court justice O’Connor has written a lively history of the court, its origins, its relationship to the other branches of government, and its difficult road to prominence in the United States. The opening chapters talk about the U.S. Constitution and its provision for a judiciary, with few details as to its structure. O’Connor’s stories of the earliest days of the Supreme Court and the difficulties of circuit-riding, along with the court’s lack of a permanent home, show how tenuous the nation’s early years really were. Subsequent chapters talk about how the modern Supreme Court was shaped by past law and practice. O’Connor also gives an insider’s view of the court’s ceremonies, such as the investiture for new justices, and the way that cases are decided. Her stories about former colleagues add extra appeal and humor.

Verdict This book is written for the layperson. Readers looking for an introduction to the workings of the court that is interesting and easy to understand but not condescending will enjoy this book.—Becky Kennedy, Atlanta-Fulton P.L.
(c) Copyright 2013. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Library Journal

Retired Supreme Court Justice Sandra Day O’Connor has written an engaging and highly interesting history of the “other” Supreme Court, the one the public doesn’t often hear about. By highlighting key moments in the Court’s history, including many that transformed it from the third wheel into a vital co-equal in American government, O’Connor brings the Court to life. The trailblazing justice—the first woman to sit on the Court—delivers her own work, bringing key moments to life with zest and emotion. While O’Connor’s voice may not be ideal for audio, her passion makes up for any deficiencies. This is a terrific book for anyone interested in learning about one of America’s key institutions. D.J.S. © AudioFile 2013, Portland, Maine

MARCH 2013 - AudioFile

Here comes the judge--and she has stories to tell. O'Connor (The Majesty of the Law, 2003, etc.), the first woman to serve as a justice on the Supreme Court--though, she hastens to add, not the first woman to hold a post of importance in that highest judiciary in the land--has been retired for half a decade, but still she is asked what being a justice is like. And, of course, she's heavily involved in civic education, educating Americans about what being American is about. The result is this lightly told but deeply thought-through history of the court, part of "a government that develops and evolves, that grows and changes, over time." Her case studies are many, including Marbury v. Madison, which articulated some of that evolution and established the court's authority as the final arbiter of the constitutionality of legislation, and some of Daniel Webster's greatest hits--for, she reminds us, Webster argued some 200 cases before the court, "known for his ability to marshal precedents and historical evidence with skill." Apart from the most significant cases, such as Brown v. Board of Education, O'Connor examines just a few minor cases and then mostly to illustrate points about the humanity of the court--Scalia is a funny guy, Rehnquist was a card, etc. She is candid, opinionated and even entertaining throughout, though we wait breathlessly for the fly-on-the-wall story of how the Supreme Court decided to give George W. Bush the presidency. For the time being, a well-considered, lively survey of what the Supreme Court does, how it's constituted and, bonus round, how to argue before it.

Kirkus Reviews