Well written history can be more
gripping than a good novel, help the reader develop deeper insights
into our world, and develop greater understandings about the people
involved. The Supreme Court of the United States is perhaps the most
opaque branch of our government, working in secret sessions, writing
opinions behind a wall where the only insight into the discussions is
seen in the arguments made when a decision is handed down. We don't
have much of an understanding of the Justices as people beyond their
history, previous writings, and ocaissional speaches to law students
and other lawyers and judges. Sandra Day O'Connor's chatty book
Out of Order: Stories from the History of the Supreme Court
does little to address these issues and thus becomes a minor
contribution to the literature of the Supreme Court. By contrast,
Jeffrey Toobin's The
Nine, written with
careful journalistic insight, and to which Justice O'Connor herself
was reputed to have been one of the major sources, casts light on the
politics and workings of the Court in exciting and useful ways
helping us to see more deeply into a mostly hidden world. My 2007
review of The Nine
can be found here.
O'Connor's
story begins with the early years or our republic and seeks to trace
the development of the Court's power and influence over its history,
focusing on cases that defined its role and the people whose work
gave its added clout. She seeks to place the Court's role, people,
and interactions with other branches of government within an
historical context, but by not providing sufficent illustration, her
writing often becomes mired in lists of appointments by various
persidents and brief recountings of landmark cases without sufficient
context to give them meaning. Seeking to list the important and
influential Justices, her narrative devolves into a list of the names
of Justices appointed by each president while not really making them
important to the reader. While, in a later chapter she discusses
Justice Douglas, she neglects his appointement in her catalog while
heaping fulsome praise on Justice Byron White which is tedious at
best. In discussing the movement of the Court from New York to
Philadelphia before finally settling in the District of Columbia
where it moved through a variety of courtrooms until the current
Supreme Court building was erected in 1935 she again becomes quite
pedestrian without really creating a context or sense of interest in
these moves or, for that matter, in the practice of riding circuit,
which Justices maintained for over a hundred years.
Justice
O'Connor's weakness as a writer lies in her inability to give up
telling and to really allow the judges to speak for themselves while
showing us who they were, or are. She frequently tells the reader
that a particular case or Justice was “interesting” without
making him (for they are mostly hims until Justice O'Connor herself
became the first woman Justice) interesting or human or showing how
decisions they wrote altered the course of history. In her writing,
too, she is prone to use the phrase “of course” without providing
the course which made her point inevitable. Generally, there is no
“of course.” Things happen for a reason and are moved along by
events and individuals. Good history writing charts the course ideas
and events take, making them stand or fall through the events and
people themselves. When the book occasionaly comes to life, it does
so with the help of the colorful judges she chooses to profile.
Justice Iredell's letters to his wife detail the rigors of being on
circuit. The story of Justice Douglas leaving a decision as a note on
a rock demonstrates both his idiosyncracy and his curmudgeonlyness.
Her
discussion of humor on the bench falls flat because the few amusing
moments that occur either require a much better narrator than Justice
O'Connor or count as one of those “you had to have been there”
moments that defy the telling of them. When she tells stories or
allows the words of the Justices to speak for themselves, her
narrative picks up some steam. The book is stronger when it relies on
anecdotes and personalities than when it discusses principles or
practices. Material about the various oaths Justices have taken on
being sworn in through the Court's history, fall flat because they
have no relevence to how the individuals behaved as judges. On the
other hand, the section on dialogue between Justices and the great
advocates who appeared before them could be expanded and enriched
hugely, perhaps to the point of seeking to explain Justice Thomas's
silence from the bench or Justice Scalia's needy bombast.
The
chapter on resignation and retirement, although containing some
interesting and touching stories about Oliver Wendell Holmes, Jr. and
William O. Douglas' overstaying their intellectual capacity soon
devolves into another list. O'Connor peaked my interest by mentioning
the Slaughter House cases, but never explains them at all, leaving
quickly for another list. Remarking that allowing retired Justices to
sit on lower courts once they achieve senior status was “particularly
interesting,” she fails to make either Stanley Reed or Harold
Burton into interesting figues, while she mentions their names. The
book is filled with many such missed opportunities in its desire to
be comprehensive. Again, O'Connor writes, “Each court has its own
customs and ways of operating. And I have had the opportunity to meet
so many interesting people from all walks of life along the way.”
Where are they? An anecdote from Justice Thurgood Marshall regarding
a capital case involving a black man in the murder of a white woman
and her white maid is, perhaps, the most affecting moment in the
entire book, mostly because O'Connor has an arresting story to
recount and allows Marshall to be the central character in telling
it.
Sandra Day O'Connor
Out
of Order: Stories of the History of the Supreme Court
by Sandra Day O'Connor, the first woman to serve as an Associate
Justice of the Supreme Court (Random House, 2013, 256 pages) is
easily readable but pretty light stuff for any reader with a strong
interest in the workings of the Court. It contains the text of the
Declaration of Independence and the U.S. Constitution, largely as
padding, as well as notes and an index. The book is not very
ambitious and achieves this lack of scope and interest. I received
the book in galley format from the publisher through Edelweiss.com.
