Authors: Jeffrey Toobin
Schiavo’s feeding tube was removed on the afternoon of March 18. With their options in Florida exhausted and Terri likely to die in a few days, Schiavo’s parents turned to Washington, specifically to Tom DeLay, the majority leader in the House of Representatives. An ardent opponent of abortion rights and a fierce partisan known as the Hammer, DeLay engineered an extraordinary legislative feat with remarkable speed. Congress had gone into recess, but DeLay managed to gather a quorum of 218 representatives on Sunday, March 20, to pass a bill designed to prevent the removal of Schiavo’s feeding tube; the Senate did, too. President Bush cut short a vacation at his Crawford, Texas, ranch to fly across the country to sign the bill, which he did at 1:08 a.m. on Monday, March 21. Later that day, Bush said, “It is wise to always err on the side of life.”
By its specific terms, the law—known formally as An Act For the Relief of the Parents of Theresa Marie Schiavo—instructed the federal district court in Florida to give the case yet another hearing “relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.” The law further stated that the district court “shall entertain and determine the suit without delay.” So on the very day the law was signed, Judge James D. Whittemore held a hearing in Tampa on the case, and the next day he rejected the Schindlers’ attempt to reinsert the feeding tube. The parents appealed to the Eleventh Circuit and then to the U.S. Supreme Court, which on March 24 refused to intervene. By this time, the case had been considered by nineteen judges in six state and federal courts, and between 2001 and 2005 the U.S. Supreme Court had declined to hear the case five times. Terri Schiavo died on March 31.
Her death only increased the rhetorical fervor. On the day of her death, DeLay threatened to impeach the judges who presided over her case, including the Supreme Court justices. “The time will come for the men responsible for this to answer for their behavior,” DeLay said. “We will look at an arrogant, out-of-control judiciary that thumbs its nose at Congress and the president.”
Four days later, Senator John Cornyn, a Republican from Texas, made an even more incendiary statement. Just weeks earlier, there had been a pair of horrific attacks on judges and their families. In Chicago, a deranged litigant before federal judge Joan Lefkow broke into her home and murdered her husband and mother, and in Atlanta, a defendant in a rape case killed the judge in his trial and two others in the course of an escape attempt. In a speech on the Senate floor, Cornyn suggested the attacks on judges might have taken place because of decisions like
Schiavo
. “I don’t know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country,” Cornyn said. “I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in violence.”
The justices watched these developments—the litigation, the frenzied rush to pass a law for Schiavo’s purported benefit, the venomous attacks on the judges—with consternation. The assaults on the judges, and Cornyn’s ugly reference to them, left a particularly strong impression because, unbeknownst to the public, both O’Connor and Ginsburg had also received recent death threats. One of the messages, which was posted in a Web chat room, said, “Okay commandoes, here is your first patriotic assignment…an easy one. Supreme Court Justices Ginsburg and O’Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom…. If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.” Ginsburg, with her mordant view of human nature, shrugged the whole thing off.
O’Connor did not. To her, the Schiavo case marked only the latest outrage from the extremists who she believed had hijacked her beloved Republican Party. The hiring of John Ashcroft, the politicized response to the affirmative action case, the lawless approach to the war on terror, and the accelerating disaster of the war in Iraq all appalled O’Connor. (As someone who prized order, O’Connor used a favorite epithet, “a mess,” to describe the war. This judgment was especially painful for her because her only close friend serving in the administration was Donald Rumsfeld, the architect of the war.) But in O’Connor’s list of grievances against Republicans in general and Bush in particular, the Schiavo case was the worst.
O’Connor’s radar for the political center worked flawlessly in the Schiavo controversy. Though members of Congress in both parties thought they were doing the public’s bidding by scrambling to pass the Schiavo bill, polls revealed widespread revulsion at the way Washington intervened in the family tragedy. Around 70 percent of the public disapproved of Bush’s and Congress’s handling of the Schiavo matter. According to polls, most people objected to the Schiavo legislation for the same reason majorities generally supported women’s right to choose abortion—that the decision was one for individuals and families, not the government.
This view appealed to O’Connor’s libertarian streak, but the core of her outrage had a different source. To O’Connor, the real danger was the idea that, with this law, Congress was trying to dictate to the courts how they should rule. In other words, worse than telling a family what to do was telling judges what to do.
The subject had long been a theme of her foreign travels. She saw Ukrainian lawyers trained by her CEELI initiative lead the Orange Revolution of 2004, where that nation’s Supreme Court voided a corrupt national election. She mourned the loss of judicial independence in Zimbabwe, where the regime of Robert Mugabe sent thugs into its Supreme Court, ignored the court’s rulings, and forced some justices off the bench. She frequently mentioned that in Russia presidential guards had killed the chief judge’s pet cat. In a little-noticed speech in 2003, at the Arab Judicial Forum in Bahrain, O’Connor had implored nascent democracies to embrace the cause of judicial independence. “It is the kernel of the rule of law, giving the citizenry confidence that the laws will be fairly and equally applied,” she said. “Judicial independence allows judges to make decisions that may be contrary to the interests of other branches of government. Presidents, ministers, and legislators at times rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquely positioned to reflect on the impact of those solutions on rights and liberty, and must act to ensure that those values are not subverted.”
With Schiavo, O’Connor saw the threat to judicial independence not in some far-off capitol but in the one across First Street from her own office. Bush and his allies were undermining the separation of powers in the war on terror, ignoring the rule of law in Guantánamo, and undermining judges in Florida—and O’Connor wasn’t going to watch in silence as it happened. Later in 2005, she took her indignation on the road, giving fiery speeches on the subject of judicial independence.
O’Connor’s foes weren’t backing down either. On April 7, Tom DeLay told a conservative conference in Washington entitled “Confronting the Judicial War on Faith” that “judicial independence does not equal judicial supremacy.” Speakers at that conference advocated “mass impeachment,” stripping the courts of jurisdiction to hear certain cases, and using Congress’s budgetary authority to punish offending judges. O’Connor fired right back at him, noting in a speech to an appellate lawyers’ association that “this was after the Terri Schiavo case, when the federal courts applied Congress’s one-time-only statute as it was written, but, alas, perhaps not how the congressman wished it was written,” O’Connor said.
“It gets worse,” O’Connor went on. “In all the federal courts, death threats have become increasingly common.” Taking aim at Senator Cornyn, she said, “It doesn’t help when a high-profile senator, after noting that decisions he sees as activist cause him ‘great distress,’ suggests there may be ‘a cause-and-effect connection’ between such activism and the ‘recent episodes of courthouse violence in this country.’ ”
The threats were not an abstract issue for O’Connor. In this very month, April 2005, just weeks after the malicious comments in the chat room, each of the justices was sent homemade cookies containing lethal doses of rat poison. The packages were intercepted before they reached the justices’ chambers; the woman who sent them, Barbara Joan March, of Bridgeport, Connecticut, also sent poison to several executive branch officials. (The next year, March was sentenced to fifteen years in prison.) At the time of the Cornyn and DeLay remarks, the episode left O’Connor feeling that the judiciary was under siege.
In her final year on the Court, O’Connor advocated vigorously for the system that made possible all that she had done. Only an independent Supreme Court kept the government tethered to the core values of the Constitution. To O’Connor, the fight for judicial independence had never been more important, because she and her cause now had powerful adversaries—the political party she had once loved and the president she had once installed in office.
For all the challenges she faced, it was still a great time in O’Connor’s life. She was a healthy seventy-five-year-old woman working in a job that she adored, one that had given her the chance to be the most important woman in American history. She reviled the current administration, but she had the world’s best platform to speak out against its abuses. She was more influential than ever, the critical vote on issue after issue, and she reveled in that responsibility. In Breyer, O’Connor had found a true friend and ally—her first since Powell left the bench many years earlier.
But as the months passed in 2005, O’Connor did not have the chance to savor her good fortune. After a period of some stability, her husband’s health was again declining. John did not take well to her move to the second-floor chambers. Worse, he began to exhibit one of the most heartbreaking symptoms of Alzheimer’s disease, a penchant to wander. If he was not watched at all times, John simply left her chambers. Several times Court personnel tracked him down just before he got outside, where he could have been lost, injured, or worse. Even with all the resources available to a Supreme Court justice, the situation was becoming unmanageable.
John’s comments on election night in 2000 about Justice O’Connor’s wish to resign had leaked to the press soon after the decision in
Bush v. Gore
, so speculation about her retirement had been incessant. O’Connor enjoyed public attention and sought publicity, but only on her own terms. Aware that reporters would ask her friends and colleagues if they knew about her plans, she never discussed the subject with them. O’Connor said little even to her three sons about what she should do. But by the end of the Court’s term in June 2005, there really wasn’t much to debate. She had not outsourced her boys’ upbringing, she said, and she was not going to outsource John’s care either.
A few days before the end of the term, O’Connor asked to see Rehnquist in his chambers. More than on any other subject, the justices respected each other’s privacy on the question of retirement, but the issue couldn’t wait anymore. So, more than fifty years after they met at Stanford, the two old friends sat opposite each other and talked about their future.
“Bill, I think John needs me. I think I need to go, but I don’t want to leave the Court with two vacancies,” she said.
The chief said he couldn’t know how his disease would progress, but he was stable at the moment and his doctors had hope. He had returned to the bench on March 21, 2005, after five months away, and he had presided for the last weeks of the term with his tracheotomy tube still in place. “I think I can make it another year,” Rehnquist said. “I’m not going to resign.” O’Connor was willing to stay one more year and in some ways wanted to remain on the Court. But the chief’s desire to hang on for another term meant that it would be two years until she could retire, and she didn’t think John could wait that long for her. Rehnquist had forced her hand and thus delivered O’Connor’s seat—the crucial one on the Court—to George W. Bush.
The final day of the term was Monday, June 27, and the courtroom was packed in anticipation of news of a possible retirement—Rehnquist’s. But the chief merely closed the Court’s term with best wishes for a good summer, and the thought of a Supreme Court vacancy seemed to pass from the Washington agenda for another year.
Three days later, however, around lunchtime on Thursday, Pamela Talkin, the marshal of the Court, called Harriet E. Miers, the White House counsel, to arrange for hand delivery of a letter the following morning. (Miers had recently been promoted from deputy chief of staff to succeed Alberto Gonzales as White House counsel.) Talkin did not say which justice would be sending it. The next morning, Friday, July 1, just before nine, Talkin called Miers and said the letter, which was from O’Connor, was on its way.
The news of O’Connor’s resignation hit official Washington like thunder. The expected replacement of Rehnquist would have been momentous—there had, after all, been forty-three presidents but only sixteen chief justices. But a Bush appointee in that seat would not change the balance of power on the Court in any dramatic way. The loss of O’Connor, in contrast, would. The conservative counterrevolution, thwarted for so long, often by O’Connor herself, might finally have a chance to succeed.
Few people paid attention to the text of the letter that had been delivered to the president, but O’Connor had crafted the message with care:
Dear President Bush,
This is to inform you of my decision to retire,…effective upon the nomination and confirmation of my successor. It has been a great privilege, indeed, to have served as a member of the court for 24 Terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.