‘Out of Order: Stories from the History of the Supreme Court’
by Sandra Day O’Connor
Random House, 222 pp., $26
The junior member of the Supreme Court is by tradition delegated the least glamorous duties, including answering the door when the justices are sequestered in conference.
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After Sandra Day O’Connor was appointed to the court, there was some discussion over whether it was appropriate to ask the first female justice to perform that kind of scut work. Justice Stevens supposedly said — correctly, according to O’Connor — he doubted she would want to be treated differently. So, for five years, until Justice Scalia replaced her, when someone knocked, O’Connor answered.
Those who thought “Out of Order: Stories From the History of the Supreme Court” would be filled with this type of behind-the-scenes anecdotes will be sorely disappointed. That was pretty much it.
The rest of this often ploddingly written book is largely filled with material distributed at basic political-science courses. Even the word “filled” is kind of a misnomer. The book itself is only about 160 pages. The remaining pages are fluff, to justify the $26 cost.
As for plodding, the 22-page second chapter is nothing more than an eye-glazing recitation of which president appointed what seems like each of the 125 members of the court since its inception.
But the book’s main problem is the lack of interesting stories. It is mostly a recitation of facts. Consider Marbury v. Madison, arguably the most important case in the court’s history.
The book is factually correct. President John Adams made late-term appoints to the judiciary, many of which his successor, Thomas Jefferson, refused to allow. One appointee, William Marbury, sued to get his job. The Marshall court ruled it could not force the president to deliver the appointment, but claimed it “emphatically the province and duty of the judicial department” to interpret the Constitution.
That precedent has defined the court’s role ever since. Of course the story is more complicated than that. What prompted a court led by Chief Justice John Marshall, a Federalist like Adams, to hand a victory to his enemy, Jefferson? What was Jefferson’s reaction to the court’s assumption of wide-ranging new powers? Not mentioned.
This absence is more notable because when O’Connor (who retired from the court in 2006) does tell stories that are not part of the standard curriculum, the book picks up speed.
A quote from Oliver Wendell Holmes, for example — “when the people … want to do something that I can’t find anything in the Constitution forbidding them to do, I say ‘let em do it’ ”— reveals why Holmes is still considered one of the best justices in the court’s history.
Another story is about Stephen J. Field, who began his judicial career as a justice of the peace in a small gold-rush community in California, where he presided over a trial in which the jury ruled against a plaintiff. When the plaintiff’s attorney told his client to ignore the decision, Field took a gun, “placed it within 6 inches of the offending lawyer’s head [and said] ‘eat those words or I’ll send you to hell.’ ”
That story may be apocryphal, but a few more of those would have gone a long way to enlivening a dullish tome.
As it is, “Out of Order” is not a history of the court nor does it tell great stories about the court. So it is hard to imagine who will enjoy it.