"[Ketanji Brown] Jackson is not alone among Justices in telling her life story."

"There is a long tradition of memoirs, notably William O. Douglas’s 'Go East, Young Man,' which is famously colorful and perhaps factually dubious, and his 'The Court Years'; 'The Memoirs of Earl Warren,' published posthumously; Sandra Day O’Connor’s 'Lazy B,' written with her brother, about growing up on a ranch... and John Paul Stevens’s 'The Making of a Justice: Reflections on My First 94 Years'.... [Ketanji Brown Jackson's new memoir] belongs to a modern mini-genre of personal memoirs written much earlier, by sitting Justices. Clarence Thomas pioneered the form, with 'My Grandfather’s Son,' which appeared in 2007, sixteen years into his tenure... followed by Sonia Sotomayor, with 'My Beloved World,' in 2013, four years into hers. The pace has picked up. Brett Kavanaugh and Amy Coney Barrett have books in the works, too. It is almost as if, along with the judicial robes and clerks, newly confirmed Justices are issued book contracts. The advances alone may be the point. Thomas got a million and a half dollars. Sotomayor has built a franchise... that has earned her close to four million dollars. Barrett’s deal, worth a reported two million, was the subject of an open letter of protest.... Jackson’s contract is not public... The salary for an Associate Justice is about three hundred thousand dollars; there are caps on how much the Justices are allowed to earn for outside work, but book earnings are exempt."

Writes Amy Davidson Sorkin, in "What Can Memoirs by Supreme Court Justices Teach Us? We’re primed to read Justices’ accounts of their lives for clues to their jurisprudence. Should we?" (The New Yorker).

This seems to call for the old Samuel Johnson quote: "No man but a blockhead ever wrote except for money."

And to answer the question in the article title: No. 

Sandra Day O'Connor has died.

"Sandra Day O’Connor, pathbreaking woman on Supreme Court, dies at 93/The court’s first female justice was known for her independence on the bench" (WaPo).

"Sandra Day O’Connor, First Woman on the Supreme Court, Is Dead at 93/During a crucial period in American law — when abortion, affirmative action, sex discrimination and voting rights were on the docket — she was the most powerful woman in the country" (NYT).

The NYT obituary is by Linda Greenhouse. Excerpt:

Fifty-one years old at the time of her nomination, she served for 24 years, retiring in January 2006 to care for her ailing husband. As the court moved to the right during that period, her moderate conservatism made her look in the end like a relative liberal.

From the WaPo obituary, by Fred Barbash:

She never went far enough in any area of the law to fully satisfy either conservatives or liberals of the day, Republicans or Democrats....

"Going home after a long day, I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm..."

"... have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports 'obstacles to voting disproportionately encountered by black voters.' I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential 'damage to the Court.' I just thought I would observe the incongruity. Good night. Sincerely, Nino."

Wrote Justice Scalia to the rest of the Supreme Court on December 12, 2000, quoted in a CNN article by Joan Biskupic, "New documents show how Sandra Day O’Connor helped George W. Bush win the 2000 election."

To paraphrase: I'm all for vigorous dissents — I do them myself — but I dissent to tell the truth as I see it, and you just did it to say we ought shrink from the truth. Ha!

ADDED: That headline is terrible.  The article is about how Sandra Day O’Connor kept Chief Justice Rehnquist from having a majority for deciding the case the same way on a different legal theory. Either way Bush would win, so she didn't "help him win."

"The hospitality we have extended to the Thomases over the years is no different from the hospitality we have extended to our many other dear friends."

"We have been most fortunate to have a great life of many friends and financial success, and we have always placed a priority on spending time with our family and friends."

Said Harlan Crow, quoted in "Lawmakers Call for Tighter Ethics Code After Revelations About Justice Thomas/An investigation by ProPublica revealed that Clarence Thomas accompanied Harlan Crow, a conservative donor and real estate billionaire, on a series of luxury vacations without disclosing them" (NYT).

Could ProPublica — or some other organization (the NYT?) — do the same investigation into the hospitality accepted by the other Supreme Court Justices? Was Clarence Thomas focused on because he was known to be way outside the norm or for political reasons? Anyone who at all likes Clarence Thomas is going to be highly suspicious — if not already convinced — that they're going after him because they already hate him. 

What is the usual experience of visiting wealthy friends and at what point should we object? Do we want monkish judges? I intensely admire the Justice Souter lifestyle. As Sandra Day O'Connor described it:

"[Sandra Day] O’Connor... retired at 75 to spend more time with her husband, John. He was suffering from Alzheimer’s disease..."

"... and O’Connor wanted to make his last years as full of companionship and good times as possible. But there wasn’t any time. John O’Connor deteriorated much faster than his wife had expected. 'John was in such bad shape she couldn’t keep him at home,' [Ruth Bader] Ginsburg told me. It was a lesson, maybe, in how even the noblest motives aren’t always enough reason to throw in the towel. Ginsburg kept fighting and working... When she was old and frequently sick she still kept on keeping on. Her worries about problems with naming a successor were real. But there was also just the way she lived her life...."

From "Ruth Bader Ginsburg Knew What to Do With Her Time/But she also knew something about the unreliability of happy endings" by Gail Collins (NYT).

"Noble" is the right word for what Justice O'Connor did, and seeing what happened, it's hard not to think she made the wrong choice, that — to use Collins's crude expression — she didn't have "enough reason to throw in the towel." But a choice like that is made in its time, without knowledge of the future. You can't look at what happened next when you calculate whether there was "enough reason."

And even when you look at the decision based on the knowledge that the decisionmaker had at the time, you can't know whether there was reason enough without knowing what only Justice O'Connor knew, the depth and the meaning of her love for her husband. To look from a distance and say she misjudged... there's no nobility in that.

Ginsburg "kept fighting" — and "throw in the towel" comes from boxing, where an actual towel was thrown down to signal defeat. But her beloved husband was already gone, and it was her own illness. There was no parallel way that O'Connor could have fought on. She had to choose whether to give her time to her husband. Ginsburg could no longer give time to her husband.

It's not that one woman "knew what to do with her time" — to use the words in the headline — and the other did not. Neither faced the choice that the other faced, and neither should be regarded as more of a fighter or more noble. 

Huge decision on political gerrymandering: "We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts."

That's Chief Justice Roberts, writing for the 5-4 majority. You can find the news articles yourself, I will read the opinion and update.

ADDED: The case is Rucho v. Common Cause.

The question here is whether there is an “appropriate role for the Federal Judiciary” in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere....

The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” The Federalist No. 59, p. 362 (C. Rossiter ed. 1961). At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing....

But in Baker v. Carr, the Court rejected the idea that redistricting was entirely left to the legislature. It detailed the "political question" doctrine, identifying 6 factors, one of which is "a lack of judicially discoverable and manageable standards," and decided that, in the context of districts with unequal numbers of residents, the Equal Protection Clause was a source of standards. Later, it said the standard was "one person, one vote" — that is, a requirement roughly equal numbers in each district.

There's still a lot of advantage to be taken in where you draw the lines, but it's harder for judges to discover a standard and manage it. When the lines were drawn for racial reasons, the Court got involved, but lines drawn for partisan reasons were always troublesome. There have been a few cases (described in the opinion), but the Court was always fractured over what the standards should be, and a minority of Justices maintained that partisan gerrymandering fell within the political question doctrine. After more than 3 decades, that minority view has become the majority. It was Justice Kennedy — concurring in Vieth (2004) — who kept partisan gerrymandering from going into the "political question" category 15 years ago. So Kavanaugh replacing Kennedy made the big difference.

Roberts writes, showing some deference to Anthony Kennedy but much more respect to Justice O'Connor (who wrote an excellent concurring opinion in the key case Davis v. Bandemer (1986)):

Sandra Day O'Connor reveals that she has dementia and that it has advanced to the point where she is withdrawing from public life.

The NYT reports.

In a letter addressed to “friends and fellow Americans,” Justice O’Connor, 88, wrote that she had received a diagnosis of early-stage dementia “some time ago” and that doctors believed it was most likely Alzheimer’s disease.

“Since many people have asked about my current status and activities, I want to be open about these changes, and while I am still able, share some personal thoughts,” Justice O’Connor wrote in the letter. “While the final chapter of my life with dementia may be trying, nothing has diminished my gratitude and deep appreciation for the countless blessings in my life.”

She said she would remain living in Phoenix, where she returned when she left the court in 2005. Her husband, John J. O’Connor III, died in 2009 after a battle with Alzheimer’s disease, and his diagnosis was a large factor in her decision to retire from the Supreme Court.

It is sad to hear this. Heartfelt good wishes Justice O'Connor — forever the First Woman of the Supreme Court.

Should Justice Ginsburg at least explain why she does not recuse herself in the travel ban case?

Lawprof Ronald Rotunda — in a WaPo op-ed — says that she should.

We already know what Ginsburg thinks of the president. She told us more than a year ago that she “can’t imagine what the country would be . . . with Donald Trump as our president.” Facing criticism for her apparent endorsement of Hillary Clinton and her attacks on Trump, Ginsburg doubled down, emphasizing in a CNN interview: “He is a faker.” She then went on “point by point, as if presenting a legal brief,” the CNN analyst said.

Her statements are particularly troubling in the context of the travel ban case, in which the crucial issue — at least, according to the lower courts and the plaintiffs — is the personal credibility of Trump and whether he delivered his executive order in good faith — in other words, whether he is faking it....

This reminds me most of Justice Sandra Day O'Connor, watching the election results at a party on November 7, 2000, as described (on Christmas Eve, 2000) by Michael Isikoff in Newsweek, :

[S]urrounded for the most part by friends and familiar acquaintances, she let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. "This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years.

Not long after that outburst, O'Connor participated in the Bush v. Gore litigation. Should she have recused herself?

Ah, here's a Washington Post piece by Aaron Blake from the summer before the 2016 election, talking about whether Ginsburg should have to recuse herself:

It's not clear that there is any real precedent for what Ginsburg just did.

Then-Justice Sandra Day O'Connor was criticized by some in 2000 after Newsweek reported her saying, "This is terrible," at an election-night watch party after Florida was prematurely called for Al Gore. Some argued that she should have recused herself from Bush v. Gore.

In some ways, what O'Connor did seems worse, since she revealed a personal interest in seeing Bush elected (though she did not retire until after he was re-elected). But Rotunda identifies a special problem with Ginsburg's indiscretion: The case may turn on whether to trust Trump about whether the purported reason for the ban is the real reason. She's asked to decide if it's real or fake, and she called Trump a faker.

2 Supreme Court hopefuls — Neil Gorsuch and Thomas Hardiman — are known to be coming to Washington as we wait for Trump's announcement tonight.

Obviously, Trump wants us to tune in for the prime-time TV show. At least one of the 2 is needed for cover. But perhaps both are cover for a third person.

I remember getting tricked by George Bush the day he nominated John Roberts. I blogged:

Bush is announcing the new nominee tonight. Apparently, her name is Edith. We're just not sure what her last name is...

There were 2 Ediths...

When Sandra Day O'Connor announced her plans to retire in 2005, it left George W. Bush with his first opportunity after more than four years in office to nominate a member of the Supreme Court. First Lady Laura Bush suggested that a woman should replace O'Connor and two female judges from the U.S. Court of Appeals—Edith Brown Clement and Edith Jones...—were reportedly among the leading candidates. Clement soon emerged as the rumored choice, but after ABC News published a story on its website that Clement was not Bush's pick, the attention turned to the candidate who had become known as the "Other Edith." Bush, of course, selected John G. Roberts....

I thought my quip was so cute — "Apparently, her name is Edith. We're just not sure what her last name is..." — and I was completely faked out.

"Every branch of the government could stand an 11% shrinking."

Said MadisonMan, commenting on my post expressing skepticism about the notion that the Supreme Court is "short-handed" when it has only 8 Justices instead of 9.

If the problem is that an odd number is so much better than an even number, why not 7?

I like this comment too, from Humperdink:

"Shorthanded" is a classic hockey term. One team is down a player, which results in the opposing team having a man (or woman) advantage, appropriately named a "power play". When the shorthanded time frame ends, both teams are at "even strength".

With the Supreme Court, I would prefer the even strength situation, as opposed to a power play. Maybe we would get less highly partisan rulings. Let the lower courts have their fun.

Once you visualize the Supreme Court as 2 teams playing against each other competitively, then it's the odd number that is the problem. The liberals have been playing short-handed for — what? — a quarter century? I'm counting from the year Clarence Thomas replaced Thurgood Marshall.

By the way:

The new Smithsonian National Museum of African-American History and Culture treats conservative Supreme Court Justice Clarence Thomas like a mere footnote while heralding the woman who accused him of sexual harassment, Anita Hill....

Ah, yes. 1991, the year America got its consciousness raised on the subject of sexual harassment awareness. 7 years later, we got our consciousness lowered.

ADDED: The special ice hockey meaning of "short-handed" goes back only to 1939, according to the unlinkable Oxford English Dictionary. The oldest meaning of the word is "Niggardly, mean; inefficient, ineffective," as in "My Hostesse was not short, either handed, or witted" (1622). Second-oldest is how I think of the word: "Lacking a full complement of ‘hands’, undermanned, understaffed."

And I want to say that I think it would be terrible for the Court to have a locked-in 5-Justice liberal or conservative majority. What we have had for the last 2 or 3 decades has been 2 minority factions with 1 or 2 swing voters. Now, these swing voters — O'Connor and Kennedy — could be characterized as conservative. They were, of course, appointed by a conservative President, Ronald Reagan. But conservative Presidents don't necessarily produce conservative Justices. Justice Souter showed that very well.

It has been tiresome dealing with 5-4 decisions determined by a swing voter, what with the absurd attention to how Justice Kennedy thinks about things. Much as I would like to move beyond this era of Supreme Court decision-making, I don't like the idea of a predictable 5-person majority on either the conservative or the liberal side.

I would not mind staying with an 8-person Court, where majorities require the 2 sides to find ways to come together and produce some legal thinking that would feel more like law and less like politics.

More email from Linda Greenhouse: "Ann, I guess it's fair to say that each of us was right and each of us was wrong."

So, you may remember yesterday's post, "What Linda Greenhouse emailed me about what I blogged about what she wrote in The NYT about Justice Kennedy," in which I challenged Linda Greenhouse — who'd said "I would caution you against challenging my facts." The fact in question was whether Justice Kennedy should be given sole credit for writing "Liberty finds no refuge in a jurisprudence of doubt," the first sentence of the main opinion in the 1992 abortion case, Planned Parenthood v. Casey, which was published by the Supreme Court as a joint opinion of Justices O'Connor, Kennedy, and Souter, with no one person identified as having written that opinion.

Greenhouse had emailed me about an earlier post, where I'd said "Greenhouse misstates the authorship of Casey," and she took the position that she knew Kennedy wrote it, because she was there in the courtroom when the opinion was announced, and Kennedy led off and read that "no refuge" line. I didn't think one person reading part of the opinion was complete proof he'd written it, but what was devastating to Greenhouse's assertion was that the Court's announcement of the opinion was recorded, and the audio and transcription are available on line, and Justice Kennedy did not go first — O'Connor did — and the line "Liberty finds no refuge in a jurisprudence of doubt" was never spoken at all.

Somehow, Linda Greenhouse — a journalist with great confidence in her facts ("I would caution you against challenging my facts") — had constructed a false memory!

How did Linda Greenhouse respond? Here, with her permission, is the new email:

Ann, I guess it's fair to say that each of us was right and each of us was wrong. I'll leave it at that, confident that your charming commenters will carry the torch. I have to say I'm really surprised at my mis-memory of the Casey hand-down -- I would have sworn it on a stack of U.S. Reports. And I take it that you agree there's not another person on the planet who could have written what Kennedy wrote -- neither your favorite passage nor mine. Linda

I responded:

Thanks. But I won't agree that no one else but Kennedy could have written that. What's the evidence? It seems to be the assumption that he did write that. I'd love to know the true story of how passages like the "jurisprudence of doubt" and the "heart of liberty" ones came to exist and to find their way into a case, but I would want real research into the subject. It's one thing to think up such lines, another to decide they belong in a case, and lines are drafted and tweaked. I wouldn't look at those lines and say obviously that part was a one-man job and Kennedy's that man.

Whatever happened to all the speculation that O'Connor brought a woman's insight onto the Court? What about the role of clerks? They're people on the planet too. And I'm curious -- as my original post showed -- about the mystery of the lack of mystery that you flagged when you said: "The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights." It's a mystery I felt motivated to explore, not to make assumptions about. 

Confronted with proof that she'd made a mistake and after cautioning me about challenging her facts, Greenhouse took the position that she and I were both wrong and right, that somehow we'd come out even. I'm not agreeing to that. I didn't say anything that was wrong. I have a way of blogging that keeps me out of trouble like that. I don't make assertions about things I don't know.

Over to you, charming commenters.

What Linda Greenhouse emailed me about what I blogged about what she wrote in The NYT about Justice Kennedy.

On Tuesday, I wrote a post titled "Linda Greenhouse notes the 'dry, almost clinical tone' and lack of 'poetry' in the Supreme Court's pro-abortion-rights opinion."

I quoted her writing:

The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.

And, among other things, I said:

And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.

It's indisputably true that the opinion Greenhouse quoted was published under those 3 names with no one Justice identified as the author. But I received an email from Linda Greenhouse that said:

Ann, fyi, Kennedy wrote the line in Casey that I attributed to him.  Yours, LG

I wrote back:

Is there a citation for that? 

And:

Shouldn't the article state your reason for attributing that line to him, as opposed to saying that it's how the opinion begins, as if he isn't one of 3 authors? Are you relying on extraneous knowledge? If so, shouldn't you say that in the article as oppose[d] to citing the opinion?

Here's Greenhouse's reply:

Jeffrey Toobin, "The Nine," p. 65. But Ann, I'm afraid you confuse the practice of journalism with writing for a law review. There is no convention that requires me to annotate my factual assertions. In any event, when Casey was handed down on June 29, 1992, each of the triumvirs read from the part of the joint opinion that he/she had written. Kennedy led off and started his oral announcement with "Liberty finds no refuge..." (causing a good deal of confusion in the courtroom, as you may imagine, since no one yet knew the bottom line of the case.) Souter read from his stare decisis portion, and O'Connor from her undue burden analysis. The authorship of each portion was clear from that public performance. Perhaps you were not in the courtroom.  I was.  Consequently it would have been completely superfluous for me to write: "As Jeffrey Toobin later reported..." Of course you are completely free to trash my opinions and my writing style.  I would caution you against challenging my facts. Yours, Linda

I responded:

I'm not saying you need a law review style citation, only that when you refer to the opinion — "the Supreme Court ..., in Planned Parenthood v. Casey" — and then say only "'Liberty finds no refuge in a jurisprudence of doubt' was Justice Anthony M. Kennedy’s mysterious opening line in that opinion," you appear to be referring to the opinion, which has three authors, and crediting only one of them.

I don't mind that you might choose to make an additional factual assertion without specifying how you know, but the text doesn't make an assertion that we know Kennedy alone wrote a particular sentence in the joint opinion. It just refers to the opinion and gives Kennedy sole credit for it, erasing the presence of O'Connor and Souter.

I'd like to add your explanation in an update, with your permission.

And she said:

Sure.

So there you are. What do you think? I've been cautioned against challenging Linda Greenhouse's facts — I thought we weren't entitled to our own facts — but I've got to say I don't think she's actually afraid that I confuse the practice of journalism with writing for a law review. I think it would be comforting, not fearsome, for me to have merely bumbled into a state of confusion about the difference between journalism and law reviews. Oddly, I'm not writing a law review article at all. Indeed, I eschew the practice. I'm blogging, and blogging is not a place to feel warned off challenging what people write in The New York Times. Nor is it a place for reining in criticism because there happens to be a "convention" within the journalism profession.

And I will be picky. To say "There is no convention that requires me to annotate my factual assertions" is not to say that there is a convention that requires her to refrain from annotating her factual assertions, and I continue to think that the problem was not so much the failure to support the assertion (to say how she knows Kennedy wrote that particular line) but the failure to make the assertion, to say that something is known about Kennedy and that she is not merely making a reference to the published opinion.

Sidenote: The word "triumvirs" is interesting in light of my concern about erasing O'Connor. "Triumvirs" means 3 men sharing an official position. (Toobin, by the way, used the word "troika" in the same context. "Triumvirs" harks back to ancient Roman leaders, the triumvirate. "Troika" gestures at Russian carriages with 3 horses.)

Anyway, whether one is in the courtroom when the Justices read from the writings they release to the public, it's a matter of opinion to say "The authorship of each portion was clear from that public performance." A joint opinion was released, and any reading needed to be done by one individual and not a chorus of 3.

No one said I'm reading the part that I wrote. I know that, even though Greenhouse guessed right and I was not there that day in 1992, but like everyone else on the internet, I can listen to the recording of the public performance at Oyez.com. Whatever feels clear within Greenhouse's memory, the fact is, it wasn't Justice Kennedy who "led off," it was Justice O'Connor. And when Kennedy got his turn, he did not — as Greenhouse put it — "start[] his oral announcement with 'Liberty finds no refuge....'"

I'm listening to the announcement recording and reading and searching the transcript, and it doesn't begin with or even contain the sentence "Liberty finds no refuge in a jurisprudence of doubt." That's how the written opinion begins, but Greenhouse seems to have constructed a false memory of what she experienced in her privileged position in that courtroom a quarter century ago.

I know! I've been cautioned against challenging her facts. But I've got to do it. I've got the transcript.

The Justices don't read the written opinion when they do the announcement live. They've got a different text, and the drama of "Liberty finds no refuge in a jurisprudence of doubt" is confined to the written opinion. Justice O'Connor — who went first, not last — did not indulge in any mystifying phraseology. If the audience felt confused at first, I suspect it was only because O'Connor stated that the court below was (mostly) affirmed, which meant that Planned Parenthood had lost, before she got to the straightforward "we conclude that the central holding of Roe should be reaffirmed."

O'Connor said that "Justice Kennedy and Justice Souter will have -- also have something to say about the judgment in these cases," and not that Kennedy and Souter will be talking about the part of the opinion they wrote. Kennedy's speaking begins with the workmanlike sentence: "The -- the essential holding of Roe versus Wade, the holding that we today retain and reaffirm has three parts." Further in, he's more high flown. And he does read the line from the opinion that I said, in my blog post, was the most poetic line in the case: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Perhaps that line was special to him, something he wanted to say out loud, but I don't, from that, feel that he's claiming personal authorship.

Greenhouse says "The authorship of each portion was clear from that public performance," and Greenhouse thinks O'Connor wrote the undue burden analysis, but Kennedy's recitation covered that material. So much for being there. I'm going to believe the transcript and listening to the recording, as any sensible person, including Greenhouse, will.

Now, what about Toobin? Toobin did talk to some of the Justices for his book "The Nine: Inside the Secret World of the Supreme Court" — though, as David Margolick wrote in his review, readers are left "to ponder which of those justices talked to him for this book, and which did not."

And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside” story of any “secret” world to tell in “The Nine: Inside the Secret World of the Supreme Court.”

Margolick guesses who talked:

Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.

Here's the relevant bit about Casey, which does trace the "Liberty finds no refuge" quote to Kennedy. (Click to enlarge.)



So Toobin, based on his secret sources, refers to "Kennedy's section of the joint opinion" as containing the quote "Liberty finds no refuge in a jurisprudence of doubt." Maybe somebody who really knows told Toobin the truth and Toobin accurately reported it. But the Court released a joint opinion, and there's something deeply disturbing about letting Toobin and his secret sources supersede the Court's public, written presentation. At least let us know that's what you're doing. If you just say you're talking about Planned Parenthood v. Casey, that's a 3-Justice opinion in my book, which is volume 505 of the United States Reports.

When Sandra Day O'Connor watched porn on the internet, she "lowered her head, squinted slightly, and muttered, 'Oh, my.'"

From "Why Ted Cruz watched pornography with Supreme Court justices," a WaPo article cherry-picking the new Ted Cruz book called "A Time for Truth: Reigniting the Promise of America."

Ted Cruz was a law clerk and there was a case about porn, that's the answer to the "why" question in the WaPo headline. It's not hard to understand why.

There are 7 more nuggets from the book. Bo Derek "bowled barefoot, with two hands, in a white pantsuit." Cruz's father "wanted to slip into the mountains and join Fidel Castro's army, but he was told there was no way to get to the rebels,"  his half-sister Miriam, "died of an accidental drug overdose," and his wife, Heidi, went through "a period of depression."

A proposed Women-of-the-Supreme-Court Lego set is rejected as a violation of Lego's policy against "politics and political symbols, campaigns, or movements"...

... which prompts NPR to delve into whether what the Supreme Court does is (or looks like) politics:

"I honestly understand having a policy in place like that," said [science journalist Maia Weinstock, who designed the set]. But Weinstock said she looked at the policy before submitting and didn't think that her project was political.

"The U.S. Supreme Court is supposed to be separate from political considerations," she said. "People are appointed for life specifically so that they don't answer to the changing whims of politics."

Of course, that's especially silly when you are celebrating the presence of women on the Court. They are there because Presidents appointed them, and it's obvious that the final selection from the pool of qualified candidates is political. Ronald Reagan had made it a campaign promise that he would appoint the first woman to the Supreme Court. And when has any President simply nominated the person with the best judicial mind or some such entirely neutral concept?

"The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice."

"Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law," writes Adam Liptak in the NYT.

[A]side from announcing the abstract proposition that revisions are possible, the court almost never notes when a change has been made, much less specifies what it was. And many changes do not seem merely typographical or formal.

Four legal publishers are granted access to “change pages” that show all revisions. Those documents are not made public, and the court refused to provide copies to The New York Times.

The final and authoritative versions of decisions, some published five years after they were announced, do not, moreover, always fully supplant the original ones. Otherwise reliable Internet resources and even the court’s own website at times still post older versions....

A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

This prominent article should force the Supreme Court to make these "change pages" publicly available. To privilege a few commercial publishers is especially shameful.

It's interesting that the Court feels free to change opinions in significant ways. Perhaps those of us who comment on new cases should focus quite intensely on getting particular sentences or arguments rewritten. We should regard the new cases as a proposed draft and keep litigating. As Russ Feingold once said: "This game's not over until we win."

IN THE COMMENTS: KLDAVIS said:

You don't need access to the change pages, just a copy of Adobe Acrobat.
1) Open slip opinion PDF.
2) Open final opinion PDF.
3) Run the file compare tool.
4) Obtain report of character for character differences between the two files.

So places like Findlaw and Legal Information Institute should be doing this routinely. Maybe someone could do a blog that calls attention to interesting things like this. I suspect most of it is really boring.

"Do you see what I have to go through every time we have one of these goddamned conferences?!" said Justice Scalia...

... to Andrew Napolitano, one time at a dinner, where Sandra Day O'Connor was also present. Justice Scalia was saying something and — as Napolitano tells it, "Justice O'Connor said something about how his general point didn't apply to the specific area of maritime law. He turned to her and said, 'Let me finish!'" And then Scalia whispered the snark in the post title.

I'm sure that anecdote provokes — in some circles — the countersnark: If he doesn't like it, he ought to retire. And, in fact, the linked article describes a recent Brooklyn Law School appearance at which a student asked:

"There have been many calls for Justice Ginsburg to retire... Would you take some of the pressure off her and retire instead?"

We're told there was "a roar of laughter." Scalia said: "Sure, I'll retire. As soon as there's a decently conservative President in office to appoint my successor." I'm just kidding. He said: "I said I would take questions—I didn't say I would answer them."

Which is almost as cheeky as the time Chief Justice Rehnquist, asked if he'd retire, said: "That's for me to know and you to find out."

"Homosexuality became illegal again in India Wednesday after the Indian Supreme Court ruled that a colonial-era law banning gay sex was improperly struck down."

Reports the NYT:

The ruling reverses a landmark judgment by a lower court, which in 2009 decided that an 1861 law that forbids “carnal intercourse against the order of nature with man, woman or animal” was unconstitutional. The law, passed by the British, makes homosexuality punishable by 10 years in prison. Only Parliament can change that law, the Supreme Court ruled.

There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. And with the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospect of any legislative change in the next few years is highly unlikely, analysts said.

The NYT quote I've put in the headline is a bit inaccurate — probably willfully so — in saying that "homosexuality" is illegal. It's homosexual intercourse that is banned, not the status of having a homosexual orientation. But those who want equality for gay people frequently elide this connection. In the American case dealing with homosexual conduct, Justice O'Connor, concurring, made the connection openly:

Texas argues... that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. “After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” [Romer v. Evans, 517 U.S.] at 641 (Scalia, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

"There is disagreement about whether Grutter was consistent with the principles of equal protection.... But the parties here do not ask the Court to revisit that aspect of Grutter’s holding."

The decorous Justice Kennedy, writing for the majority in today's opinion in Fisher v. University of Texas, refraining even from saying the word "overrule."

Revisit... as if we'll be paying a social call.

ADDED: Here's Justice Breyer at oral argument, nailing Fisher's lawyer down that he's not asking to overrule Grutter:




Later, when Fisher's lawyer said "I think you can fashion a result in this case which may or may not have to, quote, 'overrule' Grutter," Justice Sotomayor came out with the memorable line: "So you don't want to overrule Grutter, you just want to gut it":



So did the Court gut Grutter today? No, of course, not. That sounds so brutal. But it laid Grutter out on the carving board and advised the Court of Appeals to sharpen the knives.

ALSO: I'm rereading my own notes from my spring Conlaw2 class, when I taught Grutter along with the oral argument in Fisher and I find this, referring to Justice O'Connor's opinion in Grutter:

Is she damaging the SS test by applying it with deference and not attending to the loose fit between purported goal and policy adopted? (How can you gut it if it lacked guts?)

"The National Voter Registration Act of 1993, allows voters to register using a federal form that asks, 'Are you a citizen of the United States?'"

"Prospective voters must check a box for yes or no, and they must sign the form, swearing under the penalty of perjury that they are citizens. The state law, by contrast, required prospective voters to prove that they were citizens by providing copies of or information concerning various documents, including birth certificates, passports, naturalization papers or driver’s licenses, that are available only to people who are in the state lawfully."

The Supreme Court, 7-2, said the federal law preempted the state law, Adam Liptak explains:

When Sandra Day O'Connor lit into Walter Dellinger in Clinton v. Jones.

Reading the case again today (for conlaw class), I went back to what is, for me, one of the best snippets in Supreme Court oral argument. O'Connor is withering, and I think you can hear Dellinger — arguing that civil suits against the President must be delayed until after he's out of office — losing in 3 minutes of real time.

I love the way the other female Justice, Ruth Bader Ginsburg comes in — after Scalia's I like rules! outburst — and echoes O'Connor — using a somewhat kinder, gentler tone — but essentially saying — as I hear it — this is destroying you.