As you know if you’ve been reading my blogs for longer than two seconds, I am a Linda Greenhouse fan and was bereft when she accepted an early retirement offer from the NYTimes two years ago to teach at Yale Law School. She now periodically returns to us and writes an occasional Op-Ed for the paper. On Friday, Greenhouse treated us to an essay on the largely unknown Chief Justice John Roberts, titled “An Invisible Chief Justice.”
Greenhouse quoted a Pew Research Center poll [Here] that was taken this summer in which folks were asked to identify the name of the current Chief Justice of the Supreme Court. They were given four choices: John Roberts, Thurgood Marshall, Harry Reid, and John Paul Stevens. Only 28 percent picked Roberts. Thurgood Marshall, who died over 17 years ago, came in second with 8%. John Paul Stevens garnered 6%. People probably recognized his name because of the extensive media coverage of his retirement. Harry Reid came in last with 4%. As is always true in such polls, unless it’s a rock star, the big winner is No Idea, coming in with 53% of the votes.
The public wasn’t always as dim-witted about naming the leadership of the Court. In 1986 in a similar poll, 43% could name Rehnquist as the Chief Justice and he certainly has a more difficult name to remember than “Roberts.” Our present Chief has a pleasant manner and an easy smile, but Greenhouse tells us that he is an intensely private person, which no doubt accounts for his unusually low public recognition.
The most interesting and tragic information in the column, though, is about Sandra Day O’Connor and her decision to retire. She told Greenhouse that she felt compelled to leave the court to devote more time to care for her husband who was sinking deeper into dementia. She told Greenhouse that she had discussed with Rehnquist his retirement plans. He told her that he had no immediate plans to leave, even though he was undergoing treatment for thyroid cancer. With that information, she announced her retirement but a few months later Rehnquist unexpectedly died.
Had she waited until the Fall to tender her resignation, she probably would not have resigned at all. Certainly, she would not have wanted to create two vacancies on the court at the same time. Also, her husband’s condition suddenly became such that he had to be institutionalized with no need for her to be with him all day.
The game of what-if is always a zero-sum game, but frankly I can’t see a Justice O’Connor voting with Scalia et al. in Citizens United v. FEC. She is much too sensible to consider a corporation an individual. If she hadn’t announced her intention to retire in 2005, she would still be on the bench. Today, O’Connor lives an extremely active life. As a retired Supreme Court judge, she is entitled to a staff and a salary and even a law clerk. She is also entitled to hear cases as a visiting judge in federal district courts and courts of appeals. If only she had waited a few more months...
Greenhouse ended her column with some unfortunate news that I admit I had missed. It seems that this very private Chief Justice has ordered that visitors to the court may not enter through those wonderful bronze front doors. She writes that the decision was not popular within the court. Justices Ginsburg and Breyer took the unusual step of issuing a joint statement regretting the decision. It was made for security reasons so that visitors now are shunted to a side door and scanned for weapons. As Adam Liptak, the NYTimes’s current Supreme Court reporter, wrote in May: [Here]
And it is not just any front door. For decades, people with cases before the court, their lawyers and those who just came to see the arguments have climbed the grand steps arrayed in front of the courthouse’s marble columns, passed under the inscribed words 'Equal Justice Under Law' and walked through a passage flanked by two six-ton bronze doors that show historic scenes in the development of the law.
What a symbolic decision from our smiling, cherubic-faced, secretive and conservative Chief Justice.
With liberty and justice for some, Mr. Chief Justice?...