Latest / The Ben Ferguson Podcast / War Stories from the Court: Remembering Justice Sandra Day O'Connor

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War Stories from the Court: Remembering Justice Sandra Day O'Connor · The Ben Ferguson Podcast

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Speaker 2: Welcome.
1:41
Speaker 1: It is Verdict with Center. Ted Cruz, Ben Ferguson with you.
1:44
Speaker 1: And one of the things I love about doing this
1:47
Speaker 1: podcast Center is the fact that we can hit the
1:50
Speaker 1: pause button on the big news, breaking news and legislation
1:54
Speaker 1: when we have days like the news that we just
1:58
Speaker 1: had happened this week. Sanderdale'con the first woman talk about
2:02
Speaker 1: breaking the glass ceiling on the Supreme Court, has passed
2:05
Speaker 1: away at the age of ninety three.
2:06
Speaker 2: And sent her.
2:07
Speaker 1: You knew her, you clerked at the Supreme Court, and
2:10
Speaker 1: I think we should take a moment and talk about
2:12
Speaker 1: her legacy and what she meant to the history of
2:15
Speaker 1: this country, especially as being the first woman on the
2:18
Speaker 1: Supreme Court.
2:19
Speaker 3: Well, listen, Saturday O'Connor was an extraordinary person. And she's
2:23
Speaker 3: an historic person. She's a trailblazer anyway you look at it.
2:26
Speaker 3: She was the first woman in our nation's history to
2:29
Speaker 3: serve on the Supreme Court. It's worth pausing and thinking
2:31
Speaker 3: for a second. We did not have a woman on
2:34
Speaker 3: the Supreme Court until nineteen eighty one, until Ronald Reagan
2:38
Speaker 3: was president. When he was campaigning for president against Jimmy Carter,
2:43
Speaker 3: he promised, if there's a vacancy, he would appoint a woman,
2:46
Speaker 3: and he did. Saturday O'Connor's life. She grew up on
2:50
Speaker 3: a ranch in Arizona. She was a tough Western woman.
2:55
Speaker 3: She had a life in politics. She was in the
2:58
Speaker 3: Arizona State Legislature. She was the Senate majority leader in
3:02
Speaker 3: the Arizona Legislature. Before that, she was obviously a lawyer.
3:06
Speaker 3: She went to Stanford Law School. She was classmates with
3:10
Speaker 3: a fellow by the name of William Hubbs Renquist Rehnquist,
3:14
Speaker 3: who would later become the sixteenth Chief Justice of the
3:16
Speaker 3: United States. And as you know, Rehnquist was my boss.
3:20
Speaker 3: Was an extraordinary man that class at Stanford. Rehnquist was
3:24
Speaker 3: number one in his class. Sanderdale O'Connor was number three
3:28
Speaker 3: in his class.
3:29
Speaker 4: In their class.
3:31
Speaker 3: Wow, I've always wondered whatever happened to the poor schlub
3:34
Speaker 3: who was number two. You've really got to feel like
3:36
Speaker 3: a loser to be between the two of them.
3:39
Speaker 4: Now.
3:40
Speaker 3: Interestingly enough, when they were in law school, William Rehnquist
3:44
Speaker 3: and Sanderdale O'Connor dated. No way, not only did they date,
3:50
Speaker 3: but Renquist asked her to marry him, and she said.
3:55
Speaker 2: No, this isn't a wivestow, this is legit.
3:57
Speaker 3: No, No, this is he was my boss. I know he
4:00
Speaker 3: was a mentor. I knew him very well.
4:04
Speaker 4: Subsequently they both got married.
4:06
Speaker 1: And wait, she said, did you ever hear the story
4:09
Speaker 1: of the saying and no? And how that went down?
4:11
Speaker 4: Just that it happened.
4:12
Speaker 3: I will say, Look, there are some things as a
4:15
Speaker 3: law clerk you can ask your boss, chief, how did
4:18
Speaker 3: the girl you asked you to marry? You say, no,
4:20
Speaker 3: that's not one of the questions a law clerk can ask.
4:23
Speaker 2: Her, but very good decision, fair points.
4:25
Speaker 3: So but he and his wife, and she and her
4:26
Speaker 3: husband became lifelong friends.
4:28
Speaker 4: That's so cool.
4:29
Speaker 3: And so she was Sandra Day and she was dating
4:34
Speaker 3: a fellow named John O'Connor, who obviously became her husband.
4:39
Speaker 3: She described she wrote an autobiography about growing up in
4:41
Speaker 3: the ranch, and she describes how she brought her then
4:46
Speaker 3: boyfriend back to the ranch to meet her parents, and
4:50
Speaker 3: she said her dad took John out on the ranch.
4:55
Speaker 3: She said, it so happened that that was the day
4:58
Speaker 3: my dad was cask rading calves.
5:02
Speaker 4: And she's a smart dad. Right there, He writes in.
5:04
Speaker 3: The book, I wonder if he was trying to send
5:06
Speaker 3: a message. And I got to say, as the father
5:10
Speaker 3: of daughters, I find something exquisitely beautiful about having a
5:17
Speaker 3: conversation about some Look, you're the father of sons, so
5:21
Speaker 3: you may not appreciate the beauty of ripping the testicles
5:25
Speaker 3: off of a live creature while you're talking about some
5:28
Speaker 3: boy that wants to date your daughter. But that's what
5:31
Speaker 3: Saturday O'Connor's dad did. So she had a life where
5:37
Speaker 3: she was in politics, and then she ended up in
5:40
Speaker 3: nineteen eighty one when Reagan is president being appointed to
5:44
Speaker 3: the Supreme Court, being the first female Supreme Court justice.
5:48
Speaker 4: Now, I got to say, as the dad of.
5:50
Speaker 3: Two daughters, that was a really significant threshold. Sure, you know,
5:56
Speaker 3: I asked my girls the day Justice O'Connor died. I said,
6:00
Speaker 3: do you know who Sanderday O'Connor is, And my fifteen
6:03
Speaker 3: year old daughter said, yeah, Dad, I do.
6:04
Speaker 4: I'm not going to tell you.
6:06
Speaker 3: My thirteen year old said, I have no idea and
6:07
Speaker 3: I don't care. Which you can look forward to this
6:11
Speaker 3: when you have teenagers. Yes, So I tried to explain
6:14
Speaker 3: briefly to them and then they're like, yeah, yeah, whatever debt.
6:17
Speaker 3: So Justice O'Connor on the court, she was a trailblazer.
6:22
Speaker 3: She and Tony Kennedy, who was Reagan's third appointee, were
6:28
Speaker 3: the swing votes for twenty years. So basically the way
6:33
Speaker 3: the court played out for a long time is there
6:36
Speaker 3: were three reliable conservative justices, William Rehnquist, Antoninscale and Clarence Thomas.
6:43
Speaker 3: There were four reliable left wing justices and then in
6:47
Speaker 3: the middle, exquisitely in the middle were Sanderdale O'Connor and
6:52
Speaker 3: Tony Kennedy. And the basic dynamic was, look, the left
6:57
Speaker 3: wing of the court had four votes. They need to
7:00
Speaker 3: get one of them, and if they got one of them,
7:02
Speaker 3: they won five to four. And so to have a
7:05
Speaker 3: conservative victory on the court, you had to hold on
7:07
Speaker 3: to O'Connor, and you had to hold on to Kennedy,
7:09
Speaker 3: and that was a complicated dynamic. They were each susceptible
7:13
Speaker 3: to different issues. So Sanderday O'Connor was someone who believed
7:18
Speaker 3: powerfully in balancing. There's a law review article that Antonin
7:23
Speaker 3: Scalia wrote called the rule of laws a law of rules,
7:27
Speaker 3: And in law there's a basic divide between do you
7:31
Speaker 3: have judges laying out bright line rules or do you
7:35
Speaker 3: have judges engaging in standards. Now, what are the advantages
7:39
Speaker 3: of a bright line rule? A bright line rule is clear,
7:42
Speaker 3: it's predictable, and you can anticipate it. You know what
7:46
Speaker 3: it is, you know what the line is. Scalia was
7:49
Speaker 3: a big advocate of bright line rules. What are the
7:52
Speaker 3: disadvantages of bright line rules? Well, there can be instances
7:56
Speaker 3: in which it's unfair if you have an absolute cutoff.
7:58
Speaker 3: There can be a particular instant in which it's unjust
8:02
Speaker 3: for someone to get hammered on the other side of
8:04
Speaker 3: a bright line. Sandreday O'Connor loved balancing tests. She loved
8:11
Speaker 3: amorphous standards. Now, what is the advantage of an amorphis standard. Well,
8:16
Speaker 3: you can respond to fairness, you can make sure that
8:18
Speaker 3: If someone's particularly deserving, you take care of them. If
8:21
Speaker 3: someone's particularly undeserving, they get their just results. What are
8:27
Speaker 3: the disadvantages of standards? No one knows what the hell
8:30
Speaker 3: the rule is beforehand. So if someone's trying to order
8:33
Speaker 3: their conduct, if someone's trying to say, if you're a
8:36
Speaker 3: lawyer in private practice and you're advising a client, can
8:39
Speaker 3: you engage in the following conduct? If the judges are
8:43
Speaker 3: employing standards like I don't know, depends if the judge
8:47
Speaker 3: thinks the conduct is good or bad. It's very hard
8:49
Speaker 3: to anticipate what the rules are going to be if
8:52
Speaker 3: it's simply the judge's own sense of fairness and equity
8:56
Speaker 3: and balancing so on. That divide Connor was really a
9:01
Speaker 3: very a counterpoint to Scalia. She believed in standards, Scalia
9:06
Speaker 3: believed in rules. The divide was dramatic. But I can
9:10
Speaker 3: tell you so, I argued in front of Justice O'Connor
9:12
Speaker 3: numerous times.
9:13
Speaker 2: How was that, by the way, And how do you
9:15
Speaker 2: prepare for that?
9:15
Speaker 1: Because I know when you're you're going to up there,
9:18
Speaker 1: you're gonna probably i'm assuming, try to make points to
9:21
Speaker 1: certain justices that you think would connect with them so
9:24
Speaker 1: that they like you, you know some of their tendencies.
9:27
Speaker 1: But when you go up against you go in front
9:30
Speaker 1: of I say, the Supreme Court, and you're looking at
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Speaker 1: Santredy O'Connor, who's literally broke the glass ceiling.
9:35
Speaker 2: Was that intimidating as a lawyer the first time you're there?
9:37
Speaker 2: I mean, did you knowing how she is?
9:40
Speaker 1: So?
9:40
Speaker 3: My first oral argument was on October seventh, two thousand
9:43
Speaker 3: and three.
9:44
Speaker 4: I was thirty two years old.
9:46
Speaker 3: It was a case called Freu versus Hawkins. I had
9:48
Speaker 3: just been appointed Solicitor General of Texas the beginning of
9:51
Speaker 3: that year. And look, I gotta say, number one, how
9:54
Speaker 3: do you prepare for it? I had spent literally thousands
9:59
Speaker 3: of hours getting rid for that oral argument. I'd spent
10:01
Speaker 3: an enormous amount of time on the brief. It was
10:03
Speaker 3: a very complicated brief. So I'd written the briefs in
10:06
Speaker 3: that case. I did four moot courts. And you asked,
10:10
Speaker 3: was it intimidating? I got to admit at thirty two, look,
10:14
Speaker 3: I was a pretty cocky kid.
10:15
Speaker 4: I know you find that hard to believe.
10:17
Speaker 3: It's totally out of character with me now, yes, But
10:19
Speaker 3: at thirty two I felt pretty good about my abilities
10:24
Speaker 3: to handle this, and so I had a role. Every
10:27
Speaker 3: time I did an oral argument, I would supercharge my sleep.
10:31
Speaker 4: It's interesting there is.
10:34
Speaker 3: Physiological testing that sleep matters enormously for mental acuity, and
10:39
Speaker 3: actually sleep the night before matters, but it matters even more.
10:43
Speaker 4: Two nights before.
10:44
Speaker 3: So when I was in college, I used to teach
10:46
Speaker 3: the SAT at Prince Review, which was really fun, and
10:48
Speaker 3: we would advise kids, if you're taking the SAT or
10:51
Speaker 3: the L side or the MCAT or whatever test, get
10:54
Speaker 3: a ton of sleep the night before, get a ton
10:56
Speaker 3: of sleep two nights before. So every oral argument, I
11:00
Speaker 3: would the night before and two nights before try to
11:01
Speaker 3: get nine to ten hours sleep. By the way, in politics,
11:05
Speaker 3: before any debate, I try to do that for two
11:07
Speaker 3: nights in a row, get nine to ten hours sleep,
11:09
Speaker 3: because your brain is a half second faster, and in
11:12
Speaker 3: combat a half second matters.
11:15
Speaker 4: Well.
11:16
Speaker 3: The night before my oral argument, I went to bed
11:18
Speaker 3: at like eight thirty at night. I laid down in
11:20
Speaker 3: bed and I stared at the ceiling and did not
11:23
Speaker 3: sleep a minute. And I'm sitting there like, all right,
11:26
Speaker 3: big guy, you feel really confident, but you're scared out
11:29
Speaker 3: of your mind. And so my first Supreme Court argument
11:32
Speaker 3: ended up being with an all nighter involuntarily because I
11:34
Speaker 3: could not fall asleep. Now, my first argument was a
11:37
Speaker 3: case Free versus Hawkins. It was at the outer edge
11:42
Speaker 3: of federalism. Having done four moot courts, I knew we
11:45
Speaker 3: didn't have a prayer. We were not going to win.
11:47
Speaker 3: And in fact, my home run that I wanted is
11:50
Speaker 3: I wanted to lose eight one, and I wanted to
11:53
Speaker 3: lose eight to one. I wanted a Clarence Thomas descent.
11:57
Speaker 3: My whole argument was, come on, Justice Thomas, give me thisent.
12:01
Speaker 3: Come on, you can do it. And so the argument,
12:03
Speaker 3: all right, I'll get a little bit into the weeds.
12:06
Speaker 3: The argument concerned a consent decree that a Democrat Attorney
12:09
Speaker 3: General of Texas, Dan Morales, had entered into that dramatically
12:13
Speaker 3: increased the amount of money that Texas spent on Medicaid.
12:17
Speaker 3: Dan Morales was a Democrat. He entered into that consent
12:19
Speaker 3: decree because the legislature would never agree to that. Dan
12:22
Speaker 3: Morales wanted it, and so it was a complicit consent
12:25
Speaker 3: decree between a liberal Democrat and a plaintiff lawyer that
12:29
Speaker 3: both agreed lets force the taxpayer to spend a bunch
12:31
Speaker 3: of money on things that we want them to spend
12:34
Speaker 3: that the elected legislature would never agree to. John Cornyan,
12:38
Speaker 3: who was Attorney General of Texas, had challenged that consent
12:41
Speaker 3: decree and gotten a court to overturn it. Then Greg
12:44
Speaker 3: Abbott became the next Attorney General appointed me as Solicitor General.
12:49
Speaker 3: The Fifth Circuit had upheld overturning that consent decree, and
12:54
Speaker 3: the Supreme Court granted it took the appeal. Now, the
12:57
Speaker 3: problem was, once they took the appeal, there was no
12:59
Speaker 3: Sir could split. Generally, the Supreme Court takes cases when
13:02
Speaker 3: the courts of appeals disagree.
13:03
Speaker 4: There was no split.
13:05
Speaker 3: Wow, the only reason to take the case was to reverse.
13:08
Speaker 3: And so I got up at the oral argument. It's
13:11
Speaker 3: the first case. So the Supreme Court term always begins
13:13
Speaker 3: on the first Monday of October. My argument was the
13:16
Speaker 3: first case in the first first day of the term.
13:18
Speaker 3: And I got up and I'm presenting the argument. And
13:21
Speaker 3: by the way, is that good or bad news? By
13:23
Speaker 3: the way, because I don't know, I mean, is that
13:24
Speaker 3: an It doesn't particularly matter. It was kind of a
13:26
Speaker 3: cool coincidence, but it doesn't matter. But what's interesting. So look,
13:30
Speaker 3: if you watch TV, you think that a Supreme Court
13:33
Speaker 3: argument is giving some.
13:36
Speaker 4: Mas ration, Yeah, some speech.
13:38
Speaker 3: Where your Clarence Cherrow you're going to speak and sore,
13:43
Speaker 3: that is not a Supreme Court argument. You begin with,
13:47
Speaker 3: mister Chief Justice, and may it please the Court. Every
13:49
Speaker 3: argument begins with with with that opening, and you begin talking,
13:53
Speaker 3: and the justices will interrupt you with questions, and they'll
13:57
Speaker 3: do it fast, and they'll fire at you.
13:59
Speaker 4: And and I've.
14:00
Speaker 3: Told what I used to teach at ut law school.
14:03
Speaker 3: I would tell my students. I said, look, an oral
14:06
Speaker 3: argument in front of the Supreme Court. You're standing in
14:08
Speaker 3: front of the nine of the smartest lawyers on the planet,
14:11
Speaker 3: and you're a little bit like a chunk of tuna
14:14
Speaker 3: being fed to a school of sharks. They come at
14:18
Speaker 3: you every direction and every question. You're trying to think of, Okay,
14:23
Speaker 3: how do I answer this? And you got to understand
14:25
Speaker 3: if you're answering a question a smart justice. So the
14:30
Speaker 3: questions are generally not inquisitorial in the sense of, hey,
14:35
Speaker 3: what are the facts on this?
14:36
Speaker 4: Hey, what's the law on this? What?
14:38
Speaker 3: Most arguments you go in and two or three or
14:40
Speaker 3: four justices are on one side of the issue and
14:43
Speaker 3: two or three or four justices on the other side
14:44
Speaker 3: of the issue, and you know that going in yes,
14:47
Speaker 3: and they're one or two that are in the middle.
14:48
Speaker 3: And what happens is so the justices don't talk to
14:51
Speaker 3: each other before an argument. They basically are just tradition.
14:55
Speaker 3: It's tradition. It's not a legal thing. They can do it,
14:59
Speaker 3: but they base sickly operate like nine separate law firms
15:02
Speaker 3: that happen to share the same building. So typically the
15:06
Speaker 3: very first time the justices will have discussed the case.
15:09
Speaker 2: Is there with you and they're at the.
15:11
Speaker 3: Oral argument, and so you will get questions number one
15:14
Speaker 3: from the justices who disagree with you. They're trying to
15:17
Speaker 3: ask a question and a line of questions to make
15:20
Speaker 3: your position look utterly imbecilic. So the reason you need
15:24
Speaker 3: that half second speed is you're trying to anticipate if
15:26
Speaker 3: I answer yes to question one, where does question two, three, four,
15:29
Speaker 3: and five take me? Because they want you to answer
15:32
Speaker 3: question five something so ridiculous that the swing justice says, well, no, no,
15:37
Speaker 3: I couldn't.
15:38
Speaker 4: Possibly agree with that position.
15:40
Speaker 3: On the other hand, the justices who agree with you,
15:43
Speaker 3: they'll typically they think you're an idiot too, so they'll
15:47
Speaker 3: typically jump in, well, counsel, don't you mean to say
15:49
Speaker 3: the following, And they're actually trying to argue to their
15:53
Speaker 3: colleagues through you, trying to help you. They're trying to
15:57
Speaker 3: help you, and so as an advocate, you're responding to this. Now,
16:02
Speaker 3: that's in a normal case, and many of the cases,
16:04
Speaker 3: I argue, that's what played out.
16:06
Speaker 4: That was not frue fru.
16:08
Speaker 3: If you go back and read the transcript and I have,
16:11
Speaker 3: there are three pages in the middle of the transcript
16:15
Speaker 3: where I do not get out two consecutive syllables in
16:20
Speaker 3: thirty minutes of argument. I did not have a single
16:23
Speaker 3: positive question. I didn't have a single neutral question. There's
16:26
Speaker 3: a whole the three pages. There's a section where Scalia
16:29
Speaker 3: jumps in with and I go yeah, and then Ginsburg
16:35
Speaker 3: jumps in and goes and I go dah, And.
16:38
Speaker 4: I have three pages where I go yeah, bah duh.
16:41
Speaker 4: That's it. That's all I get.
16:44
Speaker 3: And most of the questions came down to the following, Council,
16:49
Speaker 3: how the hell can you say that the state didn't
16:53
Speaker 3: consent to a consent decree? And you're like, okay, Justice, Yes,
16:58
Speaker 3: that's a problem, I agree. But my argument, which I
17:01
Speaker 3: still think is right, is how can it be that
17:04
Speaker 3: one temporary officeholder in the state can permanently give away
17:10
Speaker 3: the authority of the people of the state to elect
17:14
Speaker 3: their legislature and make policy decisions. By the way, Dan Morales,
17:18
Speaker 3: after he agreed to this consent decree, he was convicted
17:21
Speaker 3: of a felony and sent to prison. So the guy
17:23
Speaker 3: who did this was in the penitentiary.
17:26
Speaker 2: Anyway, that's a good excuse for not being there that
17:28
Speaker 2: day in court, though.
17:29
Speaker 3: Right it was so oral. Argument proceeded thirty minutes. It
17:35
Speaker 3: was brutal. I told you my home run was an
17:40
Speaker 3: eight to one loss. With the Clarence Thomas descent. I'm
17:42
Speaker 3: sorry to say I failed utterly. I lost nine zero.
17:47
Speaker 3: The opinion rejected everything we said across the board. Afterwards,
17:51
Speaker 3: I went and saw Chief Justice Ranquist, my own boss,
17:54
Speaker 3: that his case was decided, so you could sit down
17:56
Speaker 3: and talk with him after it was done. So was
17:58
Speaker 3: the afternoon. I had tea with him. One of the
18:00
Speaker 3: things he liked to do was have tea in the
18:01
Speaker 3: afternoon with his former clerks.
18:03
Speaker 1: Did he love, By the way, the fact that you
18:05
Speaker 1: were a former clerk that was then arguing in front
18:07
Speaker 1: of him.
18:07
Speaker 4: And he had had many former clerks like he was.
18:11
Speaker 4: He was it's gotta be cool.
18:13
Speaker 2: I mean, you're looking out there and it's somebody that
18:15
Speaker 2: worked on your staff.
18:16
Speaker 3: Yes, But among his former clerks are a guy named
18:18
Speaker 3: John G. Roberts, who became the next Chief Justice of
18:20
Speaker 3: the United States. So I think it's fair to say
18:23
Speaker 3: he was not unused to having former clerks argue in
18:26
Speaker 3: front of him. And Renquist says to me, he goes
18:30
Speaker 3: a ted. They say, for your first argument, you should
18:36
Speaker 3: pick a case you can't lose or can't win. I
18:42
Speaker 3: think you chose wisely. That was like a thanks Chief,
18:46
Speaker 3: all right. So let's go back to more O'Connor stories.
18:49
Speaker 3: So they were classmates. Rehnquist was appointed by Richard Nixon.
18:55
Speaker 3: By the way he was appointed, he was the head
18:57
Speaker 3: of the Office Legal Counsel under Nixon. Nixon couldn't remember
19:01
Speaker 3: his name. If you look at the Nixon White House tapes.
19:06
Speaker 3: They were going through choices. They were having a really
19:09
Speaker 3: rough time with choices, and Nixon says.
19:11
Speaker 4: What about Renchburg?
19:13
Speaker 3: And Renchberg became a Associate Justice of the Supreme Court.
19:17
Speaker 3: He couldn't get his name right, but he became nominated. Nonetheless,
19:21
Speaker 3: So when Reagan was president, he had promised to nominate
19:26
Speaker 3: the first woman. In nineteen eighty one, there were very
19:30
Speaker 3: few women that had judicial careers. The sort of list
19:35
Speaker 3: of potential nominees to choose from was quite limited in
19:38
Speaker 3: nineteen eighty one, and especially if you were looking for conservatives,
19:42
Speaker 3: it was almost non existent. And so Rehnquist actually suggested
19:46
Speaker 3: Saturday O'Connor, his old classmate, his old girlfriend, and Reagan
19:51
Speaker 3: took him up on it. Now, the year I clerked
19:54
Speaker 3: at the Court was nineteen ninety six to nineteen ninety seven.
19:57
Speaker 3: That year was the very, very first case challenging the
20:04
Speaker 3: Congress had passed a law governing internet porn, and it
20:08
Speaker 3: was the first challenge to a regulation of internet porn.
20:13
Speaker 3: And this is nineteen ninety six. The justices didn't know
20:16
Speaker 3: what the Internet was. I mean, this was really early on,
20:20
Speaker 3: and so the court librarians.
20:22
Speaker 1: You know, in my head right now, I'm thinking what
20:24
Speaker 1: was the medium age of the Supreme Court back then?
20:26
Speaker 3: One thousand and seven. Yeah, like they're really old. So
20:30
Speaker 3: the library got mailed, did you have just Joe to
20:33
Speaker 3: do that? So the librarians of the Court decide we're
20:39
Speaker 3: going to try to do a tutorial to explain the
20:42
Speaker 3: Internet to the justices. And it so happened that they
20:47
Speaker 3: linked together the Renquist chambers and the O'Connor chambers, and
20:51
Speaker 3: so we had a small room. We had William Rehnquist,
20:57
Speaker 3: the Chief Justice the United States, We had Saturday O'Connor
20:59
Speaker 3: had Honors, four law clerks, we had Renquist, three law clerks.
21:03
Speaker 3: We're all in this tidy dark room, and there's a
21:05
Speaker 3: Supreme Court librarian who is typing search queries into the
21:11
Speaker 3: Internet to explain what it is. And she types in
21:14
Speaker 3: the word number one. She turns off all the filters,
21:17
Speaker 3: the porn filters that would normally keep it out, and
21:20
Speaker 3: then with the filters off, she types in the word
21:22
Speaker 3: cantelope misspelled and cantilope misspelled. In nineteen ninety six, with
21:28
Speaker 3: no filters on, pulled up graphic hardcore pornography. And so
21:33
Speaker 3: I'm sitting standing in a darkened room right behind Sanderday
21:37
Speaker 3: O'Connor looking at a computer screen of graphic porn and
21:42
Speaker 3: ben to this day, I still remember what Justice O'Connor
21:45
Speaker 3: said as she looked at it.
21:46
Speaker 4: She goes, oh my, and I have to make all right.
21:52
Speaker 4: Number one. It's awkward as all hell.
21:53
Speaker 3: I'm like, get me out of here, like I don't
21:55
Speaker 3: want to be in this room with a septagenarian watching
21:58
Speaker 3: porn right now. But I also couldn't help thinking, like
22:02
Speaker 3: I knew the history, I knew that Renquist had dated O'Connor,
22:06
Speaker 3: and I couldn't help thinking, how weird is this for
22:09
Speaker 3: my boss that he's standing next to his old girlfriend.
22:14
Speaker 2: There could have been his wife.
22:16
Speaker 3: Fifty years later, and they're watching porn with their employees.
22:20
Speaker 4: At the Supreme Court. It was a surreal moment.
22:25
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23:47
Speaker 2: I want to ask you.
23:48
Speaker 1: I want to ask you this real quick about Sanderdale
23:49
Speaker 1: O'Connor and just the history aspect of this, Sanderdale O'Connor,
23:55
Speaker 1: A lot of people don't remember her the way the
23:58
Speaker 1: same way that they remember, you know at Gainsburg, for example,
24:02
Speaker 1: was her breaking the glass ceiling and her legacy and
24:06
Speaker 1: being the first the way that you described it. Do
24:08
Speaker 1: you think in America we appreciate what she did and
24:11
Speaker 1: how big of a deal that was. Now, because the
24:13
Speaker 1: media obviously picked their favorites, it wasn't her.
24:16
Speaker 3: Well, because she was a Republican, it was not her.
24:19
Speaker 3: And there were issues on which there were some issues
24:21
Speaker 3: on which Justice O'Connor was relatively conservative on federalism, she
24:25
Speaker 3: could be quite strong. She was a Westerner. She had
24:29
Speaker 3: a fondness. So each of the justices had their own
24:33
Speaker 3: kind of quirks. They tended to hire clerks that kind
24:36
Speaker 3: of reflected sort of their personality. So antonin Scalia would
24:42
Speaker 3: hire sharp, hard elbowed, really smart Harvard lawyers. That was
24:48
Speaker 3: just you know, that's who Scalia hired. David Suiter tended
24:53
Speaker 3: to hire gay, hippie, philosophical, long haired clerk, wearring birkenstocks.
25:02
Speaker 4: Renquist.
25:03
Speaker 2: My boss, you're saying you wouldn't have gotten that job.
25:05
Speaker 4: No, I was not in the running for suitors. I'm
25:09
Speaker 4: okay with that.
25:11
Speaker 3: Renquist tended to hire kind of all American, like Rhodes Scholar.
25:16
Speaker 3: He hired athletes. He didn't like Harvard, he didn't like Yale.
25:19
Speaker 3: I was actually a bizarrely a typical Renquist clerk. You
25:23
Speaker 3: would have been much more likely to get hired by
25:25
Speaker 3: Renquist because he hired athletes. And part of the Renquist
25:29
Speaker 3: clerkship is you had to play tennis with him done
25:32
Speaker 3: every week.
25:33
Speaker 1: That's the closest I would ever gotten to clerking on
25:35
Speaker 1: the Supreme Court was that one qualification.
25:37
Speaker 3: So and he would so we played tennis Thursday mornings
25:40
Speaker 3: eleven am. And actually so you had. So in any
25:45
Speaker 3: given year, there were roughly eight thousands petitions for sucharora,
25:48
Speaker 3: which is a request for the Supreme Court to take
25:50
Speaker 3: it appeal. The court grants about eighty a year, so
25:53
Speaker 3: they grant about one percent. The way the Court resolves
25:57
Speaker 3: those is they have something called the cirt Pool, which
25:59
Speaker 3: is the law clerks that are there. They divvy up
26:02
Speaker 3: the cert petitions and you write memos. So in a
26:04
Speaker 3: given week, you typically had to write seven to eight memos.
26:07
Speaker 3: They could be anywhere from one page to twenty pages
26:10
Speaker 3: analyzing the cert petition and making a recommendation to the
26:13
Speaker 3: justices whether they should take the case. The pool memos
26:17
Speaker 3: were due Thursday at noon. We played Thursday at eleven,
26:22
Speaker 3: And you got to understand the clerkship. Like you work
26:24
Speaker 3: most days, you work from I worked from about nine
26:26
Speaker 3: am to one am every day. I mean, you work
26:29
Speaker 3: your tail off many weeks because what starts off. You
26:33
Speaker 3: start off in the summer, you're just doing pool memos.
26:36
Speaker 3: That takes all your time. Then you get to argued cases.
26:39
Speaker 3: You're preparing for argued cases, that takes more time. Then
26:42
Speaker 3: the court starts deciding decisions. You're drafting opinions for your
26:47
Speaker 3: justice that takes even more time. And then you've got
26:50
Speaker 3: emergency appeals things like death penalty cases. So what happens
26:55
Speaker 3: is the pool memos you end up compressing in a
26:57
Speaker 3: really short period of time. So all full lot of
27:00
Speaker 3: Wednesday nights, I would pull an all night or I'd
27:02
Speaker 3: be there all night because I start at like ten
27:04
Speaker 3: o'clock at night Wednesday. I'd do it all night or
27:06
Speaker 3: to finish my pool memos, and then you'd go play
27:08
Speaker 3: tennis with the chief and actually O'Connor liked to play
27:10
Speaker 3: tennis with him, but the Chief tended to hire I
27:15
Speaker 3: went to Harvard.
27:16
Speaker 4: I was not an athlete. I was not a tennis player.
27:18
Speaker 3: My two co clerks, one of them played JV tennis
27:21
Speaker 3: at Yale. The other was captain of his high school
27:23
Speaker 3: tennis team. I actually think the Chief screwed up hiring me.
27:26
Speaker 3: I think they like picked the wrong pile. They made
27:29
Speaker 3: a phone call and they got embarrassed and just didn't
27:31
Speaker 3: retract it. But I have a really ignominious distinction. So
27:37
Speaker 3: for twenty plus years, the Chief always picked the best
27:41
Speaker 3: tennis player to be as partners as we played doubles.
27:44
Speaker 3: So my year, the best tennis player was David Hoffman.
27:46
Speaker 3: He was the JV tennis player at Yale. First week
27:49
Speaker 3: we played David and the Chief versus Rick and me.
27:54
Speaker 3: The score was six zero, six zero. The next week
27:57
Speaker 3: we played, the score was six zero, six zero. Next
28:00
Speaker 3: week we played the score with six zero, six zero.
28:02
Speaker 3: After three weeks, the Chief got upset, and I am
28:05
Speaker 3: the only Chief clerk in history was so bad. The
28:08
Speaker 3: Chief gave me the best player as my partner, and.
28:12
Speaker 2: For the rest to meke a competitive I love that.
28:14
Speaker 4: And for the rest of the year.
28:15
Speaker 3: We ended up actually generally winning, but it'd be like
28:18
Speaker 3: sixty four sixty five. It was competitive, and basically David
28:21
Speaker 3: would cover three fourths of the court and I'd kind
28:23
Speaker 3: of stay in one small spot and try not to
28:25
Speaker 3: screw up too many points.
28:28
Speaker 4: But that was part of the job.
28:30
Speaker 3: O'Connor had once a week an aerobics class that would
28:38
Speaker 3: be held in the court. And so in the court
28:41
Speaker 3: you have the building of the court above the courtroom,
28:45
Speaker 3: the courtroom. The roof of the courtroom has twenty four
28:47
Speaker 3: carrot gold gilded in the roof of the courtroom.
28:49
Speaker 4: It's really high.
28:51
Speaker 3: If you go up higher, the roof on top of
28:54
Speaker 3: the courtroom is the floor of a basketball court. And
28:58
Speaker 3: so when I clerked at the court, I played hoops
29:00
Speaker 3: three times a week Monday, Wednesday, and Friday, same schedule
29:03
Speaker 3: as our podcast. Yeah, and we would run full court
29:07
Speaker 3: two hours Monday, Wednesday and Friday.
29:09
Speaker 4: We actually had some pretty good games.
29:11
Speaker 2: You were in the best shape of your life.
29:12
Speaker 3: I actually like like six hours a week. If full
29:15
Speaker 3: court basketball was you were in good shape. O'Connor would
29:21
Speaker 3: have an aerobics class up on the court. And look,
29:25
Speaker 3: O'Connor was a pioneer in a lot of the sex
29:27
Speaker 3: discrimination cases. You know what's fascinating. Justice O'Connor allowed no
29:33
Speaker 3: men in an aerobics class. Only women were allowed, and
29:36
Speaker 3: it was an absolute blatant sex discrimination. She's like, you're
29:41
Speaker 3: not seeing me in a leotard and you're not welcome. Yeah,
29:44
Speaker 3: Now I have to admit I was kind of glad
29:45
Speaker 3: because I didn't want to do aerobics and I might
29:46
Speaker 3: have felt pressure to do it if like men were invited,
29:49
Speaker 3: So I wasn't. So it was very easy, all right.
29:52
Speaker 3: One more Sanderday O'Connor story. So I was Solicer General
29:57
Speaker 3: five and a half years. We ended up being very fortunate.
30:00
Speaker 3: We had some really big constitutional law cases that just
30:04
Speaker 3: through serendipity came down the road and we ended up
30:07
Speaker 3: litigating and we won most of them. One of the
30:10
Speaker 3: biggest cases it was a case called Van Orden versus Perry. Now,
30:15
Speaker 3: Van Orden versus Parry was a challenge to the Ten
30:19
Speaker 3: Commandments monument outside of the Texas State Capitol. And let
30:23
Speaker 3: me set a little bit of context for it, because
30:25
Speaker 3: it's relevant to O'Connor, it's relevant to Renquist in the court.
30:29
Speaker 3: So this is the mid two thousands, there had been
30:32
Speaker 3: litigation all over the country challenging the public display of
30:35
Speaker 3: Ten Commandments all over the country. The history of the
30:39
Speaker 3: Texas Ten Commandments Monument. It was erected in nineteen sixty one,
30:44
Speaker 3: but its history actually goes back to the nineteen fifties.
30:47
Speaker 3: The nineteen fifties. There was a Minnesota state judge named E. J.
30:51
Speaker 3: Rugemeier who in the nineteen fifties was upset about the
30:55
Speaker 3: diminishing morals of the youth in America. By the way,
30:58
Speaker 3: pause and thinking the nineteen fifties, he was worried about
31:00
Speaker 3: youth morals. Think about today, like Holy Cow, in eighty years,
31:04
Speaker 3: it hadn't gotten better. Yeah, And he came up with
31:07
Speaker 3: the idea to help the morals of the youth in America,
31:11
Speaker 3: let's publicly display the Ten Commandments in public areas across
31:13
Speaker 3: the nation. And he went to a public service organization,
31:17
Speaker 3: the Fraternal Order of Eagles, sort of like the Rotary
31:20
Speaker 3: Club or Kuanas Club. He said, Hey, what do y'all
31:22
Speaker 3: think of this idea? And they said, great idea, We're
31:25
Speaker 3: all for it all right now, Ben, this is where
31:28
Speaker 3: the story takes a weird turn. This is exactly coterminous
31:34
Speaker 3: with the release of Cecil B.
31:36
Speaker 4: De Mill's movie The Ten Commandments.
31:38
Speaker 3: No way, you know, Charlton Heston comes down from Mount
31:40
Speaker 3: Sinai carrying the Ten Commandments, and Cecil B. De Mill
31:44
Speaker 3: was a larger than life Hollywood character and Mill gets
31:48
Speaker 3: wind of this, and he was thinking.
31:51
Speaker 4: Like a Hollywood producer.
31:52
Speaker 3: He's like, Hey, this is a great idea, but I
31:55
Speaker 3: don't want a piece of paper on a frame posted
31:57
Speaker 3: on the wall. If you're going to erect this, I
32:00
Speaker 3: want big honkin granite Ten Commandments monuments, just like I'm
32:06
Speaker 3: gonna have Charlton Heston coming down the mountain with There
32:10
Speaker 3: are dozens of what are called Eagles monuments all over
32:13
Speaker 3: the country and they're all identical Texas at six foot
32:17
Speaker 3: three inches tall three foot six inches wide.
32:19
Speaker 4: It is red granite.
32:20
Speaker 3: It looks exactly like the tablets that Charlton Heston carried.
32:26
Speaker 3: And actually, I'm going to take a brief aside and say,
32:30
Speaker 3: if you ever are arguing a case in court, since
32:34
Speaker 3: you're not a lawyer, something would have to go terribly
32:35
Speaker 3: wrong for you to be arguing a case in court. Yeah,
32:38
Speaker 3: but if you're convicted of murder, and you're defending yourself.
32:43
Speaker 3: The advice that I have given lawyers is never ever,
32:46
Speaker 3: ever try to be funny. It is the province of
32:49
Speaker 3: judges to be funny. It is not the province of lawyers. Now,
32:54
Speaker 3: that is excellent advice, But I will tell you I
32:56
Speaker 3: have twice in my career broken that advice, and I've
32:58
Speaker 3: been very lucky. The guy odds of litigation have spared
33:01
Speaker 3: me my just desserts both times. When I was arguing
33:05
Speaker 3: the defense of the Texas Ten Commandments case in the
33:08
Speaker 3: Fifth Circuit Court of Appeals, the process that the Eagles
33:14
Speaker 3: used to develop the text of the Ten Commandments, there
33:17
Speaker 3: are differences across the dominations, and so what the Eagles
33:21
Speaker 3: did is they brought together a committee that consisted of
33:24
Speaker 3: a pastor, a priest, and a rabbi. So an oral argument,
33:27
Speaker 3: I said, this was drafted by a pastor, a priest,
33:30
Speaker 3: and a rabbi. And one of the judges on the
33:32
Speaker 3: Fifth Circuit, Judge Prato, leans forward and says, Council, that
33:35
Speaker 3: sounds like the beginning of a joke. And I immediately said, yes,
33:38
Speaker 3: your honor, But nobody walked into a bar, and miraculously
33:43
Speaker 3: the judges took pity on me and laughed. It was stupid,
33:47
Speaker 3: but I was grateful for their mercy. Were in front
33:50
Speaker 3: of the U. S. Supreme Court on the Texas Ten
33:53
Speaker 3: Commandments monument, and at the time there had been dozens
33:58
Speaker 3: of cases challenging Ten Commandments monuments. Almost all of the
34:02
Speaker 3: monuments had lost the weight of the case. Law was
34:05
Speaker 3: headed very significantly against the public display of the Ten
34:08
Speaker 3: Commandments as the case was being appealed. So we had
34:13
Speaker 3: won in the Fifth Circuit Court of Appeals. The plaine
34:16
Speaker 3: iff a guy named Thomas van Orden, who was an atheist.
34:19
Speaker 3: He was a homeless man who had walked past the monument,
34:22
Speaker 3: was offended by it and filed a lawsuit seeking to
34:24
Speaker 3: tear it down. He filed a cert petition asking the
34:28
Speaker 3: Supreme Court to take the case. Now, normally, if you've
34:30
Speaker 3: won and the other side appeals to the Supreme Court,
34:32
Speaker 3: what you do is you fight against it. You say no, no,
34:34
Speaker 3: don't take this case. There is no split of authority.
34:37
Speaker 3: It's not consequential. You don't need this say no, because
34:39
Speaker 3: if they say no, you've won.
34:41
Speaker 4: Here was the problem.
34:43
Speaker 3: There was an enormous split of authority. I thought the
34:45
Speaker 3: Court was going to take one of these cases very
34:47
Speaker 3: very soon, and we might have won a pyrrhic victory
34:51
Speaker 3: of a short term victory, but if a bad decision
34:54
Speaker 3: came down to the Supreme Court, we'd lose in the
34:55
Speaker 3: long term and lose our monument. So I went to
34:57
Speaker 3: my boss, Greg Abbott, and I said, I think we
35:01
Speaker 3: should do something that's called acquiescing insert, which is we
35:05
Speaker 3: should agree, yes, Supreme Court, you should take this case.
35:09
Speaker 3: And we drafted a brief in opposition where we said,
35:13
Speaker 3: there is a split of authority. It is real, it
35:15
Speaker 3: is deep, it is wide, it is significant. And what
35:18
Speaker 3: we wrote in the brief was, if the Court is
35:22
Speaker 3: inclined to resolve this issue, this case presents the single
35:28
Speaker 3: best fact pattern to uphold a permissible display of the
35:32
Speaker 3: Ten Commandments. It was very risky because if the Court
35:36
Speaker 3: took the case and we lost, everyone would pillory both
35:39
Speaker 3: Abbot and me. You idiots asked them to take this case,
35:43
Speaker 3: and then you got your butt kicked.
35:44
Speaker 4: Well, it ended up we were right. They were going
35:46
Speaker 4: to take a case.
35:47
Speaker 3: They took the Texas case, and they took a case
35:50
Speaker 3: out of Kentucky. They took them both and they scheduled
35:52
Speaker 3: them for argument on the same day as we're preparing
35:57
Speaker 3: the case. Abbot my boss, who was Attorney General. He
36:00
Speaker 3: told me when he started, he said, look, I want
36:02
Speaker 3: to argue one Supreme Court case while I'm ag and
36:05
Speaker 3: let me know which one I should do. And so
36:07
Speaker 3: when this case was granted, I said, General, this is
36:09
Speaker 3: the one.
36:09
Speaker 4: You should do.
36:10
Speaker 3: It's a discreet issue of law, it's incredibly important. He
36:14
Speaker 3: spent two months preparing.
36:17
Speaker 4: For the argument.
36:17
Speaker 3: I put together some moot courts. I did moot court
36:19
Speaker 3: in DC with a murderer's row of Supreme Court advocates.
36:24
Speaker 3: They had collectively over one hundred oral arguments between them,
36:27
Speaker 3: and they just beat him senseless. I actually felt really nervous,
36:32
Speaker 3: Like when you put your boss in front of a
36:34
Speaker 3: moot that like pounds him senseless, You're like, uh, General,
36:37
Speaker 3: I hope that was productive.
36:40
Speaker 4: Please tell me I'm not unemployed.
36:42
Speaker 2: Yeah, yeah, please tell me I'm not gett my walking
36:43
Speaker 2: papers a day.
36:44
Speaker 3: But look, if you do it right, you want the
36:46
Speaker 3: mood to be harder than the actual argument.
36:47
Speaker 4: So he went through did several moods.
36:49
Speaker 3: He was ready for it, and in the brief I
36:51
Speaker 3: told him, I said Okay, General, I've got a plan.
36:53
Speaker 3: So for about three decades, Sandred O'Connor was the deciding
36:59
Speaker 3: vote on every almost every religious liberty establishment caused case
37:02
Speaker 3: in the country. And I read every opinion she'd written
37:07
Speaker 3: over and over and over again. And I told my team,
37:10
Speaker 3: as we're drafting the brief, I said, I want us
37:13
Speaker 3: to swim in Sandradale O'Connor's establishment clause jurisprudence. I want
37:19
Speaker 3: I want this to embody everything she's ever thought or
37:22
Speaker 3: said about the First Amendment. And in fact, I told
37:25
Speaker 3: my lawyers, I said, I want the most frequent words
37:28
Speaker 3: in the brief to be O'Connor comma jay. I want
37:31
Speaker 3: them to occur more frequently than and or the And
37:35
Speaker 3: one of my lawyers said, well, Ted, is it possible
37:39
Speaker 3: to be too obsequious to justice O'Connor.
37:41
Speaker 4: In this brief? I said no.
37:44
Speaker 3: If we can put an oil portrait of Sandradale O'Connor
37:47
Speaker 3: in the cover of our brief, we should do so.
37:51
Speaker 3: And again I was, you know, probably I was a
37:53
Speaker 3: cocky thirty four to thirty five year old. I went
37:56
Speaker 3: to Abbott and I said, General, we are we're living
38:00
Speaker 3: in her psyche. This brief is exactly what Saturday O'Connor thinks.
38:06
Speaker 4: Well.
38:07
Speaker 3: With the oral argument, I'm sorry to say we missed horribly.
38:12
Speaker 3: She was utterly unpersuaded. She voted to strike down the
38:16
Speaker 3: Texas Ten Commandments monument. Now here's where spring Court arguments
38:19
Speaker 3: are weird. Every argument we'd aimed at Sanderdale O'Connor missed her,
38:24
Speaker 3: but bizarrely enough struck Steve Bryer. Wow, Bill Clinton appointee
38:30
Speaker 3: relatively liberal justice, and the two cases I told you
38:35
Speaker 3: there was Kentucky in Texas. Four justices voted to strike
38:40
Speaker 3: down both monuments. Four justices voted to uphold both monuments.
38:44
Speaker 3: Steve Bryer voted to strike down Kentucky and to uphold Texas, which,
38:51
Speaker 3: among other things, was a vindication of if we had
38:54
Speaker 3: an acquiesced insert, the only opinion would have been Kentucky,
38:57
Speaker 3: and it would have been devastating for Ten Commandments monuments
39:00
Speaker 3: the country. There was also a really nice kind of
39:02
Speaker 3: personal vindication in this so Chief Justice Rehnquist had been
39:07
Speaker 3: an original dissenter in a case called Stone versus Graham,
39:12
Speaker 3: which struck down the display of the Ten Commandments in
39:15
Speaker 3: public schools across the country.
39:16
Speaker 4: And he had dissented.
39:17
Speaker 3: He said, this is not the first Amendment, this is
39:19
Speaker 3: not right.
39:21
Speaker 4: Van Orden versus Perry.
39:23
Speaker 3: Chief Justice Rehnquist wrote the plurality opinion for the court
39:28
Speaker 3: upholding Texas's display of the Ten Commandments. It was the
39:32
Speaker 3: very last opinion Chief Justice Rehnquist ever wrote, and he
39:35
Speaker 3: passed away later that summer, And so, as his former clerk,
39:39
Speaker 3: it was really cool to have been part of a
39:43
Speaker 3: case where he was able to vindicate a view he
39:46
Speaker 3: had articulated two decades earlier. And sandreday O'Connor, when it
39:50
Speaker 3: came to the standards, we didn't meet her standards, but
39:53
Speaker 3: miraculously enough Steve Bryer liked what we had to say,
39:56
Speaker 3: and so we entered. And by the way, since then,
39:59
Speaker 3: the mccreer case out of Kentucky has proven to be
40:01
Speaker 3: a very unimportant precedent. It is rarely cited, and the
40:05
Speaker 3: vad Ordon case changed the entire direction of case law.
40:08
Speaker 3: So the tenth Ten Commandments displays are now routinely.
40:12
Speaker 1: Uphilld Well this one. I love doing the show. It's
40:14
Speaker 1: so fun to get to talk about this. Since Sandreday O'Connor,
40:17
Speaker 1: the first woman on the Supreme Court. Die passed away
40:19
Speaker 1: at the age of ninety three. Center always a pleasure.
40:22
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