Latest / The 47 Morning Update with Ben Ferguson / War Stories from the Court: Remembering Justice Sandra Day O'Connor

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War Stories from the Court: Remembering Justice Sandra Day O'Connor · The 47 Morning Update with Ben Ferguson

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  Speaker 2: Welcome.
• 1:41
  Speaker 1: It is Verdict with Center. Ted Cruz, Ben Ferguson with you.
• 1:44
  Speaker 1: And one of the things I love about doing this
• 1:47
  Speaker 1: podcast Center is the fact that we can hit the
• 1:50
  Speaker 1: pause button on the big news, breaking news and legislation
• 1:54
  Speaker 1: when we have days like the news that we just
• 1:58
  Speaker 1: had happened this week. Sanderdale'con the first woman talk about
• 2:02
  Speaker 1: breaking the glass ceiling on the Supreme Court, has passed
• 2:05
  Speaker 1: away at the age of ninety three.
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  Speaker 2: And sent her.
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  Speaker 1: You knew her, you clerked at the Supreme Court, and
• 2:10
  Speaker 1: I think we should take a moment and talk about
• 2:12
  Speaker 1: her legacy and what she meant to the history of
• 2:15
  Speaker 1: this country, especially as being the first woman on the
• 2:18
  Speaker 1: Supreme Court.
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  Speaker 3: Well, listen, Saturday O'Connor was an extraordinary person. And she's
• 2:23
  Speaker 3: an historic person. She's a trailblazer anyway you look at it.
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  Speaker 3: She was the first woman in our nation's history to
• 2:29
  Speaker 3: serve on the Supreme Court. It's worth pausing and thinking
• 2:31
  Speaker 3: for a second. We did not have a woman on
• 2:34
  Speaker 3: the Supreme Court until nineteen eighty one, until Ronald Reagan
• 2:38
  Speaker 3: was president. When he was campaigning for president against Jimmy Carter,
• 2:43
  Speaker 3: he promised, if there's a vacancy, he would appoint a woman,
• 2:46
  Speaker 3: and he did. Saturday O'Connor's life. She grew up on
• 2:50
  Speaker 3: a ranch in Arizona. She was a tough Western woman.
• 2:55
  Speaker 3: She had a life in politics. She was in the
• 2:58
  Speaker 3: Arizona State Legislature. She was the Senate majority leader in
• 3:02
  Speaker 3: the Arizona Legislature. Before that, she was obviously a lawyer.
• 3:06
  Speaker 3: She went to Stanford Law School. She was classmates with
• 3:10
  Speaker 3: a fellow by the name of William Hubbs Renquist Rehnquist,
• 3:14
  Speaker 3: who would later become the sixteenth Chief Justice of the
• 3:16
  Speaker 3: United States. And as you know, Rehnquist was my boss.
• 3:20
  Speaker 3: Was an extraordinary man that class at Stanford. Rehnquist was
• 3:24
  Speaker 3: number one in his class. Sanderdale O'Connor was number three
• 3:28
  Speaker 3: in his class.
• 3:29
  Speaker 4: In their class.
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  Speaker 3: Wow, I've always wondered whatever happened to the poor schlub
• 3:34
  Speaker 3: who was number two. You've really got to feel like
• 3:36
  Speaker 3: a loser to be between the two of them.
• 3:39
  Speaker 4: Now.
• 3:40
  Speaker 3: Interestingly enough, when they were in law school, William Rehnquist
• 3:44
  Speaker 3: and Sanderdale O'Connor dated. No way, not only did they date,
• 3:50
  Speaker 3: but Renquist asked her to marry him, and she said.
• 3:55
  Speaker 2: No, this isn't a wivestow, this is legit.
• 3:57
  Speaker 3: No, No, this is he was my boss. I know he
• 4:00
  Speaker 3: was a mentor. I knew him very well.
• 4:04
  Speaker 4: Subsequently they both got married.
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  Speaker 1: And wait, she said, did you ever hear the story
• 4:09
  Speaker 1: of the saying and no? And how that went down?
• 4:11
  Speaker 4: Just that it happened.
• 4:12
  Speaker 3: I will say, Look, there are some things as a
• 4:15
  Speaker 3: law clerk you can ask your boss, chief, how did
• 4:18
  Speaker 3: the girl you asked you to marry? You say, no,
• 4:20
  Speaker 3: that's not one of the questions a law clerk can ask.
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  Speaker 2: Her, but very good decision, fair points.
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  Speaker 3: So but he and his wife, and she and her
• 4:26
  Speaker 3: husband became lifelong friends.
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  Speaker 4: That's so cool.
• 4:29
  Speaker 3: And so she was Sandra Day and she was dating
• 4:34
  Speaker 3: a fellow named John O'Connor, who obviously became her husband.
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  Speaker 3: She described she wrote an autobiography about growing up in
• 4:41
  Speaker 3: the ranch, and she describes how she brought her then
• 4:46
  Speaker 3: boyfriend back to the ranch to meet her parents, and
• 4:50
  Speaker 3: she said her dad took John out on the ranch.
• 4:55
  Speaker 3: She said, it so happened that that was the day
• 4:58
  Speaker 3: my dad was cask rading calves.
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  Speaker 4: And she's a smart dad. Right there, He writes in.
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  Speaker 3: The book, I wonder if he was trying to send
• 5:06
  Speaker 3: a message. And I got to say, as the father
• 5:10
  Speaker 3: of daughters, I find something exquisitely beautiful about having a
• 5:17
  Speaker 3: conversation about some Look, you're the father of sons, so
• 5:21
  Speaker 3: you may not appreciate the beauty of ripping the testicles
• 5:25
  Speaker 3: off of a live creature while you're talking about some
• 5:28
  Speaker 3: boy that wants to date your daughter. But that's what
• 5:31
  Speaker 3: Saturday O'Connor's dad did. So she had a life where
• 5:37
  Speaker 3: she was in politics, and then she ended up in
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  Speaker 3: nineteen eighty one when Reagan is president being appointed to
• 5:44
  Speaker 3: the Supreme Court, being the first female Supreme Court justice.
• 5:48
  Speaker 4: Now, I got to say, as the dad of.
• 5:50
  Speaker 3: Two daughters, that was a really significant threshold. Sure, you know,
• 5:56
  Speaker 3: I asked my girls the day Justice O'Connor died. I said,
• 6:00
  Speaker 3: do you know who Sanderday O'Connor is, And my fifteen
• 6:03
  Speaker 3: year old daughter said, yeah, Dad, I do.
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  Speaker 4: I'm not going to tell you.
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  Speaker 3: My thirteen year old said, I have no idea and
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  Speaker 3: I don't care. Which you can look forward to this
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  Speaker 3: when you have teenagers. Yes, So I tried to explain
• 6:14
  Speaker 3: briefly to them and then they're like, yeah, yeah, whatever debt.
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  Speaker 3: So Justice O'Connor on the court, she was a trailblazer.
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  Speaker 3: She and Tony Kennedy, who was Reagan's third appointee, were
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  Speaker 3: the swing votes for twenty years. So basically the way
• 6:33
  Speaker 3: the court played out for a long time is there
• 6:36
  Speaker 3: were three reliable conservative justices, William Rehnquist, Antoninscale and Clarence Thomas.
• 6:43
  Speaker 3: There were four reliable left wing justices and then in
• 6:47
  Speaker 3: the middle, exquisitely in the middle were Sanderdale O'Connor and
• 6:52
  Speaker 3: Tony Kennedy. And the basic dynamic was, look, the left
• 6:57
  Speaker 3: wing of the court had four votes. They need to
• 7:00
  Speaker 3: get one of them, and if they got one of them,
• 7:02
  Speaker 3: they won five to four. And so to have a
• 7:05
  Speaker 3: conservative victory on the court, you had to hold on
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  Speaker 3: to O'Connor, and you had to hold on to Kennedy,
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  Speaker 3: and that was a complicated dynamic. They were each susceptible
• 7:13
  Speaker 3: to different issues. So Sanderday O'Connor was someone who believed
• 7:18
  Speaker 3: powerfully in balancing. There's a law review article that Antonin
• 7:23
  Speaker 3: Scalia wrote called the rule of laws a law of rules,
• 7:27
  Speaker 3: And in law there's a basic divide between do you
• 7:31
  Speaker 3: have judges laying out bright line rules or do you
• 7:35
  Speaker 3: have judges engaging in standards. Now, what are the advantages
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  Speaker 3: of a bright line rule? A bright line rule is clear,
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  Speaker 3: it's predictable, and you can anticipate it. You know what
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  Speaker 3: it is, you know what the line is. Scalia was
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  Speaker 3: a big advocate of bright line rules. What are the
• 7:52
  Speaker 3: disadvantages of bright line rules? Well, there can be instances
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  Speaker 3: in which it's unfair if you have an absolute cutoff.
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  Speaker 3: There can be a particular instant in which it's unjust
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  Speaker 3: for someone to get hammered on the other side of
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  Speaker 3: a bright line. Sandreday O'Connor loved balancing tests. She loved
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  Speaker 3: amorphous standards. Now, what is the advantage of an amorphis standard. Well,
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  Speaker 3: you can respond to fairness, you can make sure that
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  Speaker 3: If someone's particularly deserving, you take care of them. If
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  Speaker 3: someone's particularly undeserving, they get their just results. What are
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  Speaker 3: the disadvantages of standards? No one knows what the hell
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  Speaker 3: the rule is beforehand. So if someone's trying to order
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  Speaker 3: their conduct, if someone's trying to say, if you're a
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  Speaker 3: lawyer in private practice and you're advising a client, can
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  Speaker 3: you engage in the following conduct? If the judges are
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  Speaker 3: employing standards like I don't know, depends if the judge
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  Speaker 3: thinks the conduct is good or bad. It's very hard
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  Speaker 3: to anticipate what the rules are going to be if
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  Speaker 3: it's simply the judge's own sense of fairness and equity
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  Speaker 3: and balancing so on. That divide Connor was really a
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  Speaker 3: very a counterpoint to Scalia. She believed in standards, Scalia
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  Speaker 3: believed in rules. The divide was dramatic. But I can
• 9:10
  Speaker 3: tell you so, I argued in front of Justice O'Connor
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  Speaker 3: numerous times.
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  Speaker 2: How was that, by the way, And how do you
• 9:15
  Speaker 2: prepare for that?
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  Speaker 1: Because I know when you're you're going to up there,
• 9:18
  Speaker 1: you're gonna probably i'm assuming, try to make points to
• 9:21
  Speaker 1: certain justices that you think would connect with them so
• 9:24
  Speaker 1: that they like you, you know some of their tendencies.
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  Speaker 1: But when you go up against you go in front
• 9:30
  Speaker 1: of I say, the Supreme Court, and you're looking at
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  Speaker 1: Santredy O'Connor, who's literally broke the glass ceiling.
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  Speaker 2: Was that intimidating as a lawyer the first time you're there?
• 9:37
  Speaker 2: I mean, did you knowing how she is?
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  Speaker 1: So?
• 9:40
  Speaker 3: My first oral argument was on October seventh, two thousand
• 9:43
  Speaker 3: and three.
• 9:44
  Speaker 4: I was thirty two years old.
• 9:46
  Speaker 3: It was a case called Freu versus Hawkins. I had
• 9:48
  Speaker 3: just been appointed Solicitor General of Texas the beginning of
• 9:51
  Speaker 3: that year. And look, I gotta say, number one, how
• 9:54
  Speaker 3: do you prepare for it? I had spent literally thousands
• 9:59
  Speaker 3: of hours getting rid for that oral argument. I'd spent
• 10:01
  Speaker 3: an enormous amount of time on the brief. It was
• 10:03
  Speaker 3: a very complicated brief. So I'd written the briefs in
• 10:06
  Speaker 3: that case. I did four moot courts. And you asked,
• 10:10
  Speaker 3: was it intimidating? I got to admit at thirty two, look,
• 10:14
  Speaker 3: I was a pretty cocky kid.
• 10:15
  Speaker 4: I know you find that hard to believe.
• 10:17
  Speaker 3: It's totally out of character with me now, yes, But
• 10:19
  Speaker 3: at thirty two I felt pretty good about my abilities
• 10:24
  Speaker 3: to handle this, and so I had a role. Every
• 10:27
  Speaker 3: time I did an oral argument, I would supercharge my sleep.
• 10:31
  Speaker 4: It's interesting there is.
• 10:34
  Speaker 3: Physiological testing that sleep matters enormously for mental acuity, and
• 10:39
  Speaker 3: actually sleep the night before matters, but it matters even more.
• 10:43
  Speaker 4: Two nights before.
• 10:44
  Speaker 3: So when I was in college, I used to teach
• 10:46
  Speaker 3: the SAT at Prince Review, which was really fun, and
• 10:48
  Speaker 3: we would advise kids, if you're taking the SAT or
• 10:51
  Speaker 3: the L side or the MCAT or whatever test, get
• 10:54
  Speaker 3: a ton of sleep the night before, get a ton
• 10:56
  Speaker 3: of sleep two nights before. So every oral argument, I
• 11:00
  Speaker 3: would the night before and two nights before try to
• 11:01
  Speaker 3: get nine to ten hours sleep. By the way, in politics,
• 11:05
  Speaker 3: before any debate, I try to do that for two
• 11:07
  Speaker 3: nights in a row, get nine to ten hours sleep,
• 11:09
  Speaker 3: because your brain is a half second faster, and in
• 11:12
  Speaker 3: combat a half second matters.
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  Speaker 4: Well.
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  Speaker 3: The night before my oral argument, I went to bed
• 11:18
  Speaker 3: at like eight thirty at night. I laid down in
• 11:20
  Speaker 3: bed and I stared at the ceiling and did not
• 11:23
  Speaker 3: sleep a minute. And I'm sitting there like, all right,
• 11:26
  Speaker 3: big guy, you feel really confident, but you're scared out
• 11:29
  Speaker 3: of your mind. And so my first Supreme Court argument
• 11:32
  Speaker 3: ended up being with an all nighter involuntarily because I
• 11:34
  Speaker 3: could not fall asleep. Now, my first argument was a
• 11:37
  Speaker 3: case Free versus Hawkins. It was at the outer edge
• 11:42
  Speaker 3: of federalism. Having done four moot courts, I knew we
• 11:45
  Speaker 3: didn't have a prayer. We were not going to win.
• 11:47
  Speaker 3: And in fact, my home run that I wanted is
• 11:50
  Speaker 3: I wanted to lose eight one, and I wanted to
• 11:53
  Speaker 3: lose eight to one. I wanted a Clarence Thomas descent.
• 11:57
  Speaker 3: My whole argument was, come on, Justice Thomas, give me thisent.
• 12:01
  Speaker 3: Come on, you can do it. And so the argument,
• 12:03
  Speaker 3: all right, I'll get a little bit into the weeds.
• 12:06
  Speaker 3: The argument concerned a consent decree that a Democrat Attorney
• 12:09
  Speaker 3: General of Texas, Dan Morales, had entered into that dramatically
• 12:13
  Speaker 3: increased the amount of money that Texas spent on Medicaid.
• 12:17
  Speaker 3: Dan Morales was a Democrat. He entered into that consent
• 12:19
  Speaker 3: decree because the legislature would never agree to that. Dan
• 12:22
  Speaker 3: Morales wanted it, and so it was a complicit consent
• 12:25
  Speaker 3: decree between a liberal Democrat and a plaintiff lawyer that
• 12:29
  Speaker 3: both agreed lets force the taxpayer to spend a bunch
• 12:31
  Speaker 3: of money on things that we want them to spend
• 12:34
  Speaker 3: that the elected legislature would never agree to. John Cornyan,
• 12:38
  Speaker 3: who was Attorney General of Texas, had challenged that consent
• 12:41
  Speaker 3: decree and gotten a court to overturn it. Then Greg
• 12:44
  Speaker 3: Abbott became the next Attorney General appointed me as Solicitor General.
• 12:49
  Speaker 3: The Fifth Circuit had upheld overturning that consent decree, and
• 12:54
  Speaker 3: the Supreme Court granted it took the appeal. Now, the
• 12:57
  Speaker 3: problem was, once they took the appeal, there was no
• 12:59
  Speaker 3: Sir could split. Generally, the Supreme Court takes cases when
• 13:02
  Speaker 3: the courts of appeals disagree.
• 13:03
  Speaker 4: There was no split.
• 13:05
  Speaker 3: Wow, the only reason to take the case was to reverse.
• 13:08
  Speaker 3: And so I got up at the oral argument. It's
• 13:11
  Speaker 3: the first case. So the Supreme Court term always begins
• 13:13
  Speaker 3: on the first Monday of October. My argument was the
• 13:16
  Speaker 3: first case in the first first day of the term.
• 13:18
  Speaker 3: And I got up and I'm presenting the argument. And
• 13:21
  Speaker 3: by the way, is that good or bad news? By
• 13:23
  Speaker 3: the way, because I don't know, I mean, is that
• 13:24
  Speaker 3: an It doesn't particularly matter. It was kind of a
• 13:26
  Speaker 3: cool coincidence, but it doesn't matter. But what's interesting. So look,
• 13:30
  Speaker 3: if you watch TV, you think that a Supreme Court
• 13:33
  Speaker 3: argument is giving some.
• 13:36
  Speaker 4: Mas ration, Yeah, some speech.
• 13:38
  Speaker 3: Where your Clarence Cherrow you're going to speak and sore,
• 13:43
  Speaker 3: that is not a Supreme Court argument. You begin with,
• 13:47
  Speaker 3: mister Chief Justice, and may it please the Court. Every
• 13:49
  Speaker 3: argument begins with with with that opening, and you begin talking,
• 13:53
  Speaker 3: and the justices will interrupt you with questions, and they'll
• 13:57
  Speaker 3: do it fast, and they'll fire at you.
• 13:59
  Speaker 4: And and I've.
• 14:00
  Speaker 3: Told what I used to teach at ut law school.
• 14:03
  Speaker 3: I would tell my students. I said, look, an oral
• 14:06
  Speaker 3: argument in front of the Supreme Court. You're standing in
• 14:08
  Speaker 3: front of the nine of the smartest lawyers on the planet,
• 14:11
  Speaker 3: and you're a little bit like a chunk of tuna
• 14:14
  Speaker 3: being fed to a school of sharks. They come at
• 14:18
  Speaker 3: you every direction and every question. You're trying to think of, Okay,
• 14:23
  Speaker 3: how do I answer this? And you got to understand
• 14:25
  Speaker 3: if you're answering a question a smart justice. So the
• 14:30
  Speaker 3: questions are generally not inquisitorial in the sense of, hey,
• 14:35
  Speaker 3: what are the facts on this?
• 14:36
  Speaker 4: Hey, what's the law on this? What?
• 14:38
  Speaker 3: Most arguments you go in and two or three or
• 14:40
  Speaker 3: four justices are on one side of the issue and
• 14:43
  Speaker 3: two or three or four justices on the other side
• 14:44
  Speaker 3: of the issue, and you know that going in yes,
• 14:47
  Speaker 3: and they're one or two that are in the middle.
• 14:48
  Speaker 3: And what happens is so the justices don't talk to
• 14:51
  Speaker 3: each other before an argument. They basically are just tradition.
• 14:55
  Speaker 3: It's tradition. It's not a legal thing. They can do it,
• 14:59
  Speaker 3: but they base sickly operate like nine separate law firms
• 15:02
  Speaker 3: that happen to share the same building. So typically the
• 15:06
  Speaker 3: very first time the justices will have discussed the case.
• 15:09
  Speaker 2: Is there with you and they're at the.
• 15:11
  Speaker 3: Oral argument, and so you will get questions number one
• 15:14
  Speaker 3: from the justices who disagree with you. They're trying to
• 15:17
  Speaker 3: ask a question and a line of questions to make
• 15:20
  Speaker 3: your position look utterly imbecilic. So the reason you need
• 15:24
  Speaker 3: that half second speed is you're trying to anticipate if
• 15:26
  Speaker 3: I answer yes to question one, where does question two, three, four,
• 15:29
  Speaker 3: and five take me? Because they want you to answer
• 15:32
  Speaker 3: question five something so ridiculous that the swing justice says, well, no, no,
• 15:37
  Speaker 3: I couldn't.
• 15:38
  Speaker 4: Possibly agree with that position.
• 15:40
  Speaker 3: On the other hand, the justices who agree with you,
• 15:43
  Speaker 3: they'll typically they think you're an idiot too, so they'll
• 15:47
  Speaker 3: typically jump in, well, counsel, don't you mean to say
• 15:49
  Speaker 3: the following, And they're actually trying to argue to their
• 15:53
  Speaker 3: colleagues through you, trying to help you. They're trying to
• 15:57
  Speaker 3: help you, and so as an advocate, you're responding to this. Now,
• 16:02
  Speaker 3: that's in a normal case, and many of the cases,
• 16:04
  Speaker 3: I argue, that's what played out.
• 16:06
  Speaker 4: That was not frue fru.
• 16:08
  Speaker 3: If you go back and read the transcript and I have,
• 16:11
  Speaker 3: there are three pages in the middle of the transcript
• 16:15
  Speaker 3: where I do not get out two consecutive syllables in
• 16:20
  Speaker 3: thirty minutes of argument. I did not have a single
• 16:23
  Speaker 3: positive question. I didn't have a single neutral question. There's
• 16:26
  Speaker 3: a whole the three pages. There's a section where Scalia
• 16:29
  Speaker 3: jumps in with and I go yeah, and then Ginsburg
• 16:35
  Speaker 3: jumps in and goes and I go dah, And.
• 16:38
  Speaker 4: I have three pages where I go yeah, bah duh.
• 16:41
  Speaker 4: That's it. That's all I get.
• 16:44
  Speaker 3: And most of the questions came down to the following, Council,
• 16:49
  Speaker 3: how the hell can you say that the state didn't
• 16:53
  Speaker 3: consent to a consent decree? And you're like, okay, Justice, Yes,
• 16:58
  Speaker 3: that's a problem, I agree. But my argument, which I
• 17:01
  Speaker 3: still think is right, is how can it be that
• 17:04
  Speaker 3: one temporary officeholder in the state can permanently give away
• 17:10
  Speaker 3: the authority of the people of the state to elect
• 17:14
  Speaker 3: their legislature and make policy decisions. By the way, Dan Morales,
• 17:18
  Speaker 3: after he agreed to this consent decree, he was convicted
• 17:21
  Speaker 3: of a felony and sent to prison. So the guy
• 17:23
  Speaker 3: who did this was in the penitentiary.
• 17:26
  Speaker 2: Anyway, that's a good excuse for not being there that
• 17:28
  Speaker 2: day in court, though.
• 17:29
  Speaker 3: Right it was so oral. Argument proceeded thirty minutes. It
• 17:35
  Speaker 3: was brutal. I told you my home run was an
• 17:40
  Speaker 3: eight to one loss. With the Clarence Thomas descent. I'm
• 17:42
  Speaker 3: sorry to say I failed utterly. I lost nine zero.
• 17:47
  Speaker 3: The opinion rejected everything we said across the board. Afterwards,
• 17:51
  Speaker 3: I went and saw Chief Justice Ranquist, my own boss,
• 17:54
  Speaker 3: that his case was decided, so you could sit down
• 17:56
  Speaker 3: and talk with him after it was done. So was
• 17:58
  Speaker 3: the afternoon. I had tea with him. One of the
• 18:00
  Speaker 3: things he liked to do was have tea in the
• 18:01
  Speaker 3: afternoon with his former clerks.
• 18:03
  Speaker 1: Did he love, By the way, the fact that you
• 18:05
  Speaker 1: were a former clerk that was then arguing in front
• 18:07
  Speaker 1: of him.
• 18:07
  Speaker 4: And he had had many former clerks like he was.
• 18:11
  Speaker 4: He was it's gotta be cool.
• 18:13
  Speaker 2: I mean, you're looking out there and it's somebody that
• 18:15
  Speaker 2: worked on your staff.
• 18:16
  Speaker 3: Yes, But among his former clerks are a guy named
• 18:18
  Speaker 3: John G. Roberts, who became the next Chief Justice of
• 18:20
  Speaker 3: the United States. So I think it's fair to say
• 18:23
  Speaker 3: he was not unused to having former clerks argue in
• 18:26
  Speaker 3: front of him. And Renquist says to me, he goes
• 18:30
  Speaker 3: a ted. They say, for your first argument, you should
• 18:36
  Speaker 3: pick a case you can't lose or can't win. I
• 18:42
  Speaker 3: think you chose wisely. That was like a thanks Chief,
• 18:46
  Speaker 3: all right. So let's go back to more O'Connor stories.
• 18:49
  Speaker 3: So they were classmates. Rehnquist was appointed by Richard Nixon.
• 18:55
  Speaker 3: By the way he was appointed, he was the head
• 18:57
  Speaker 3: of the Office Legal Counsel under Nixon. Nixon couldn't remember
• 19:01
  Speaker 3: his name. If you look at the Nixon White House tapes.
• 19:06
  Speaker 3: They were going through choices. They were having a really
• 19:09
  Speaker 3: rough time with choices, and Nixon says.
• 19:11
  Speaker 4: What about Renchburg?
• 19:13
  Speaker 3: And Renchberg became a Associate Justice of the Supreme Court.
• 19:17
  Speaker 3: He couldn't get his name right, but he became nominated. Nonetheless,
• 19:21
  Speaker 3: So when Reagan was president, he had promised to nominate
• 19:26
  Speaker 3: the first woman. In nineteen eighty one, there were very
• 19:30
  Speaker 3: few women that had judicial careers. The sort of list
• 19:35
  Speaker 3: of potential nominees to choose from was quite limited in
• 19:38
  Speaker 3: nineteen eighty one, and especially if you were looking for conservatives,
• 19:42
  Speaker 3: it was almost non existent. And so Rehnquist actually suggested
• 19:46
  Speaker 3: Saturday O'Connor, his old classmate, his old girlfriend, and Reagan
• 19:51
  Speaker 3: took him up on it. Now, the year I clerked
• 19:54
  Speaker 3: at the Court was nineteen ninety six to nineteen ninety seven.
• 19:57
  Speaker 3: That year was the very, very first case challenging the
• 20:04
  Speaker 3: Congress had passed a law governing internet porn, and it
• 20:08
  Speaker 3: was the first challenge to a regulation of internet porn.
• 20:13
  Speaker 3: And this is nineteen ninety six. The justices didn't know
• 20:16
  Speaker 3: what the Internet was. I mean, this was really early on,
• 20:20
  Speaker 3: and so the court librarians.
• 20:22
  Speaker 1: You know, in my head right now, I'm thinking what
• 20:24
  Speaker 1: was the medium age of the Supreme Court back then?
• 20:26
  Speaker 3: One thousand and seven. Yeah, like they're really old. So
• 20:30
  Speaker 3: the library got mailed, did you have just Joe to
• 20:33
  Speaker 3: do that? So the librarians of the Court decide we're
• 20:39
  Speaker 3: going to try to do a tutorial to explain the
• 20:42
  Speaker 3: Internet to the justices. And it so happened that they
• 20:47
  Speaker 3: linked together the Renquist chambers and the O'Connor chambers, and
• 20:51
  Speaker 3: so we had a small room. We had William Rehnquist,
• 20:57
  Speaker 3: the Chief Justice the United States, We had Saturday O'Connor
• 20:59
  Speaker 3: had Honors, four law clerks, we had Renquist, three law clerks.
• 21:03
  Speaker 3: We're all in this tidy dark room, and there's a
• 21:05
  Speaker 3: Supreme Court librarian who is typing search queries into the
• 21:11
  Speaker 3: Internet to explain what it is. And she types in
• 21:14
  Speaker 3: the word number one. She turns off all the filters,
• 21:17
  Speaker 3: the porn filters that would normally keep it out, and
• 21:20
  Speaker 3: then with the filters off, she types in the word
• 21:22
  Speaker 3: cantelope misspelled and cantilope misspelled. In nineteen ninety six, with
• 21:28
  Speaker 3: no filters on, pulled up graphic hardcore pornography. And so
• 21:33
  Speaker 3: I'm sitting standing in a darkened room right behind Sanderday
• 21:37
  Speaker 3: O'Connor looking at a computer screen of graphic porn and
• 21:42
  Speaker 3: ben to this day, I still remember what Justice O'Connor
• 21:45
  Speaker 3: said as she looked at it.
• 21:46
  Speaker 4: She goes, oh my, and I have to make all right.
• 21:52
  Speaker 4: Number one. It's awkward as all hell.
• 21:53
  Speaker 3: I'm like, get me out of here, like I don't
• 21:55
  Speaker 3: want to be in this room with a septagenarian watching
• 21:58
  Speaker 3: porn right now. But I also couldn't help thinking, like
• 22:02
  Speaker 3: I knew the history, I knew that Renquist had dated O'Connor,
• 22:06
  Speaker 3: and I couldn't help thinking, how weird is this for
• 22:09
  Speaker 3: my boss that he's standing next to his old girlfriend.
• 22:14
  Speaker 2: There could have been his wife.
• 22:16
  Speaker 3: Fifty years later, and they're watching porn with their employees.
• 22:20
  Speaker 4: At the Supreme Court. It was a surreal moment.
• 22:25
  Speaker 1: Let me tell you about blackout coffee. Bidenomics is a
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• 23:47
  Speaker 2: I want to ask you.
• 23:48
  Speaker 1: I want to ask you this real quick about Sanderdale
• 23:49
  Speaker 1: O'Connor and just the history aspect of this, Sanderdale O'Connor,
• 23:55
  Speaker 1: A lot of people don't remember her the way the
• 23:58
  Speaker 1: same way that they remember, you know at Gainsburg, for example,
• 24:02
  Speaker 1: was her breaking the glass ceiling and her legacy and
• 24:06
  Speaker 1: being the first the way that you described it. Do
• 24:08
  Speaker 1: you think in America we appreciate what she did and
• 24:11
  Speaker 1: how big of a deal that was. Now, because the
• 24:13
  Speaker 1: media obviously picked their favorites, it wasn't her.
• 24:16
  Speaker 3: Well, because she was a Republican, it was not her.
• 24:19
  Speaker 3: And there were issues on which there were some issues
• 24:21
  Speaker 3: on which Justice O'Connor was relatively conservative on federalism, she
• 24:25
  Speaker 3: could be quite strong. She was a Westerner. She had
• 24:29
  Speaker 3: a fondness. So each of the justices had their own
• 24:33
  Speaker 3: kind of quirks. They tended to hire clerks that kind
• 24:36
  Speaker 3: of reflected sort of their personality. So antonin Scalia would
• 24:42
  Speaker 3: hire sharp, hard elbowed, really smart Harvard lawyers. That was
• 24:48
  Speaker 3: just you know, that's who Scalia hired. David Suiter tended
• 24:53
  Speaker 3: to hire gay, hippie, philosophical, long haired clerk, wearring birkenstocks.
• 25:02
  Speaker 4: Renquist.
• 25:03
  Speaker 2: My boss, you're saying you wouldn't have gotten that job.
• 25:05
  Speaker 4: No, I was not in the running for suitors. I'm
• 25:09
  Speaker 4: okay with that.
• 25:11
  Speaker 3: Renquist tended to hire kind of all American, like Rhodes Scholar.
• 25:16
  Speaker 3: He hired athletes. He didn't like Harvard, he didn't like Yale.
• 25:19
  Speaker 3: I was actually a bizarrely a typical Renquist clerk. You
• 25:23
  Speaker 3: would have been much more likely to get hired by
• 25:25
  Speaker 3: Renquist because he hired athletes. And part of the Renquist
• 25:29
  Speaker 3: clerkship is you had to play tennis with him done
• 25:32
  Speaker 3: every week.
• 25:33
  Speaker 1: That's the closest I would ever gotten to clerking on
• 25:35
  Speaker 1: the Supreme Court was that one qualification.
• 25:37
  Speaker 3: So and he would so we played tennis Thursday mornings
• 25:40
  Speaker 3: eleven am. And actually so you had. So in any
• 25:45
  Speaker 3: given year, there were roughly eight thousands petitions for sucharora,
• 25:48
  Speaker 3: which is a request for the Supreme Court to take
• 25:50
  Speaker 3: it appeal. The court grants about eighty a year, so
• 25:53
  Speaker 3: they grant about one percent. The way the Court resolves
• 25:57
  Speaker 3: those is they have something called the cirt Pool, which
• 25:59
  Speaker 3: is the law clerks that are there. They divvy up
• 26:02
  Speaker 3: the cert petitions and you write memos. So in a
• 26:04
  Speaker 3: given week, you typically had to write seven to eight memos.
• 26:07
  Speaker 3: They could be anywhere from one page to twenty pages
• 26:10
  Speaker 3: analyzing the cert petition and making a recommendation to the
• 26:13
  Speaker 3: justices whether they should take the case. The pool memos
• 26:17
  Speaker 3: were due Thursday at noon. We played Thursday at eleven,
• 26:22
  Speaker 3: And you got to understand the clerkship. Like you work
• 26:24
  Speaker 3: most days, you work from I worked from about nine
• 26:26
  Speaker 3: am to one am every day. I mean, you work
• 26:29
  Speaker 3: your tail off many weeks because what starts off. You
• 26:33
  Speaker 3: start off in the summer, you're just doing pool memos.
• 26:36
  Speaker 3: That takes all your time. Then you get to argued cases.
• 26:39
  Speaker 3: You're preparing for argued cases, that takes more time. Then
• 26:42
  Speaker 3: the court starts deciding decisions. You're drafting opinions for your
• 26:47
  Speaker 3: justice that takes even more time. And then you've got
• 26:50
  Speaker 3: emergency appeals things like death penalty cases. So what happens
• 26:55
  Speaker 3: is the pool memos you end up compressing in a
• 26:57
  Speaker 3: really short period of time. So all full lot of
• 27:00
  Speaker 3: Wednesday nights, I would pull an all night or I'd
• 27:02
  Speaker 3: be there all night because I start at like ten
• 27:04
  Speaker 3: o'clock at night Wednesday. I'd do it all night or
• 27:06
  Speaker 3: to finish my pool memos, and then you'd go play
• 27:08
  Speaker 3: tennis with the chief and actually O'Connor liked to play
• 27:10
  Speaker 3: tennis with him, but the Chief tended to hire I
• 27:15
  Speaker 3: went to Harvard.
• 27:16
  Speaker 4: I was not an athlete. I was not a tennis player.
• 27:18
  Speaker 3: My two co clerks, one of them played JV tennis
• 27:21
  Speaker 3: at Yale. The other was captain of his high school
• 27:23
  Speaker 3: tennis team. I actually think the Chief screwed up hiring me.
• 27:26
  Speaker 3: I think they like picked the wrong pile. They made
• 27:29
  Speaker 3: a phone call and they got embarrassed and just didn't
• 27:31
  Speaker 3: retract it. But I have a really ignominious distinction. So
• 27:37
  Speaker 3: for twenty plus years, the Chief always picked the best
• 27:41
  Speaker 3: tennis player to be as partners as we played doubles.
• 27:44
  Speaker 3: So my year, the best tennis player was David Hoffman.
• 27:46
  Speaker 3: He was the JV tennis player at Yale. First week
• 27:49
  Speaker 3: we played David and the Chief versus Rick and me.
• 27:54
  Speaker 3: The score was six zero, six zero. The next week
• 27:57
  Speaker 3: we played, the score was six zero, six zero. Next
• 28:00
  Speaker 3: week we played the score with six zero, six zero.
• 28:02
  Speaker 3: After three weeks, the Chief got upset, and I am
• 28:05
  Speaker 3: the only Chief clerk in history was so bad. The
• 28:08
  Speaker 3: Chief gave me the best player as my partner, and.
• 28:12
  Speaker 2: For the rest to meke a competitive I love that.
• 28:14
  Speaker 4: And for the rest of the year.
• 28:15
  Speaker 3: We ended up actually generally winning, but it'd be like
• 28:18
  Speaker 3: sixty four sixty five. It was competitive, and basically David
• 28:21
  Speaker 3: would cover three fourths of the court and I'd kind
• 28:23
  Speaker 3: of stay in one small spot and try not to
• 28:25
  Speaker 3: screw up too many points.
• 28:28
  Speaker 4: But that was part of the job.
• 28:30
  Speaker 3: O'Connor had once a week an aerobics class that would
• 28:38
  Speaker 3: be held in the court. And so in the court
• 28:41
  Speaker 3: you have the building of the court above the courtroom,
• 28:45
  Speaker 3: the courtroom. The roof of the courtroom has twenty four
• 28:47
  Speaker 3: carrot gold gilded in the roof of the courtroom.
• 28:49
  Speaker 4: It's really high.
• 28:51
  Speaker 3: If you go up higher, the roof on top of
• 28:54
  Speaker 3: the courtroom is the floor of a basketball court. And
• 28:58
  Speaker 3: so when I clerked at the court, I played hoops
• 29:00
  Speaker 3: three times a week Monday, Wednesday, and Friday, same schedule
• 29:03
  Speaker 3: as our podcast. Yeah, and we would run full court
• 29:07
  Speaker 3: two hours Monday, Wednesday and Friday.
• 29:09
  Speaker 4: We actually had some pretty good games.
• 29:11
  Speaker 2: You were in the best shape of your life.
• 29:12
  Speaker 3: I actually like like six hours a week. If full
• 29:15
  Speaker 3: court basketball was you were in good shape. O'Connor would
• 29:21
  Speaker 3: have an aerobics class up on the court. And look,
• 29:25
  Speaker 3: O'Connor was a pioneer in a lot of the sex
• 29:27
  Speaker 3: discrimination cases. You know what's fascinating. Justice O'Connor allowed no
• 29:33
  Speaker 3: men in an aerobics class. Only women were allowed, and
• 29:36
  Speaker 3: it was an absolute blatant sex discrimination. She's like, you're
• 29:41
  Speaker 3: not seeing me in a leotard and you're not welcome. Yeah,
• 29:44
  Speaker 3: Now I have to admit I was kind of glad
• 29:45
  Speaker 3: because I didn't want to do aerobics and I might
• 29:46
  Speaker 3: have felt pressure to do it if like men were invited,
• 29:49
  Speaker 3: So I wasn't. So it was very easy, all right.
• 29:52
  Speaker 3: One more Sanderday O'Connor story. So I was Solicer General
• 29:57
  Speaker 3: five and a half years. We ended up being very fortunate.
• 30:00
  Speaker 3: We had some really big constitutional law cases that just
• 30:04
  Speaker 3: through serendipity came down the road and we ended up
• 30:07
  Speaker 3: litigating and we won most of them. One of the
• 30:10
  Speaker 3: biggest cases it was a case called Van Orden versus Perry. Now,
• 30:15
  Speaker 3: Van Orden versus Parry was a challenge to the Ten
• 30:19
  Speaker 3: Commandments monument outside of the Texas State Capitol. And let
• 30:23
  Speaker 3: me set a little bit of context for it, because
• 30:25
  Speaker 3: it's relevant to O'Connor, it's relevant to Renquist in the court.
• 30:29
  Speaker 3: So this is the mid two thousands, there had been
• 30:32
  Speaker 3: litigation all over the country challenging the public display of
• 30:35
  Speaker 3: Ten Commandments all over the country. The history of the
• 30:39
  Speaker 3: Texas Ten Commandments Monument. It was erected in nineteen sixty one,
• 30:44
  Speaker 3: but its history actually goes back to the nineteen fifties.
• 30:47
  Speaker 3: The nineteen fifties. There was a Minnesota state judge named E. J.
• 30:51
  Speaker 3: Rugemeier who in the nineteen fifties was upset about the
• 30:55
  Speaker 3: diminishing morals of the youth in America. By the way,
• 30:58
  Speaker 3: pause and thinking the nineteen fifties, he was worried about
• 31:00
  Speaker 3: youth morals. Think about today, like Holy Cow, in eighty years,
• 31:04
  Speaker 3: it hadn't gotten better. Yeah, And he came up with
• 31:07
  Speaker 3: the idea to help the morals of the youth in America,
• 31:11
  Speaker 3: let's publicly display the Ten Commandments in public areas across
• 31:13
  Speaker 3: the nation. And he went to a public service organization,
• 31:17
  Speaker 3: the Fraternal Order of Eagles, sort of like the Rotary
• 31:20
  Speaker 3: Club or Kuanas Club. He said, Hey, what do y'all
• 31:22
  Speaker 3: think of this idea? And they said, great idea, We're
• 31:25
  Speaker 3: all for it all right now, Ben, this is where
• 31:28
  Speaker 3: the story takes a weird turn. This is exactly coterminous
• 31:34
  Speaker 3: with the release of Cecil B.
• 31:36
  Speaker 4: De Mill's movie The Ten Commandments.
• 31:38
  Speaker 3: No way, you know, Charlton Heston comes down from Mount
• 31:40
  Speaker 3: Sinai carrying the Ten Commandments, and Cecil B. De Mill
• 31:44
  Speaker 3: was a larger than life Hollywood character and Mill gets
• 31:48
  Speaker 3: wind of this, and he was thinking.
• 31:51
  Speaker 4: Like a Hollywood producer.
• 31:52
  Speaker 3: He's like, Hey, this is a great idea, but I
• 31:55
  Speaker 3: don't want a piece of paper on a frame posted
• 31:57
  Speaker 3: on the wall. If you're going to erect this, I
• 32:00
  Speaker 3: want big honkin granite Ten Commandments monuments, just like I'm
• 32:06
  Speaker 3: gonna have Charlton Heston coming down the mountain with There
• 32:10
  Speaker 3: are dozens of what are called Eagles monuments all over
• 32:13
  Speaker 3: the country and they're all identical Texas at six foot
• 32:17
  Speaker 3: three inches tall three foot six inches wide.
• 32:19
  Speaker 4: It is red granite.
• 32:20
  Speaker 3: It looks exactly like the tablets that Charlton Heston carried.
• 32:26
  Speaker 3: And actually, I'm going to take a brief aside and say,
• 32:30
  Speaker 3: if you ever are arguing a case in court, since
• 32:34
  Speaker 3: you're not a lawyer, something would have to go terribly
• 32:35
  Speaker 3: wrong for you to be arguing a case in court. Yeah,
• 32:38
  Speaker 3: but if you're convicted of murder, and you're defending yourself.
• 32:43
  Speaker 3: The advice that I have given lawyers is never ever,
• 32:46
  Speaker 3: ever try to be funny. It is the province of
• 32:49
  Speaker 3: judges to be funny. It is not the province of lawyers. Now,
• 32:54
  Speaker 3: that is excellent advice, But I will tell you I
• 32:56
  Speaker 3: have twice in my career broken that advice, and I've
• 32:58
  Speaker 3: been very lucky. The guy odds of litigation have spared
• 33:01
  Speaker 3: me my just desserts both times. When I was arguing
• 33:05
  Speaker 3: the defense of the Texas Ten Commandments case in the
• 33:08
  Speaker 3: Fifth Circuit Court of Appeals, the process that the Eagles
• 33:14
  Speaker 3: used to develop the text of the Ten Commandments, there
• 33:17
  Speaker 3: are differences across the dominations, and so what the Eagles
• 33:21
  Speaker 3: did is they brought together a committee that consisted of
• 33:24
  Speaker 3: a pastor, a priest, and a rabbi. So an oral argument,
• 33:27
  Speaker 3: I said, this was drafted by a pastor, a priest,
• 33:30
  Speaker 3: and a rabbi. And one of the judges on the
• 33:32
  Speaker 3: Fifth Circuit, Judge Prato, leans forward and says, Council, that
• 33:35
  Speaker 3: sounds like the beginning of a joke. And I immediately said, yes,
• 33:38
  Speaker 3: your honor, But nobody walked into a bar, and miraculously
• 33:43
  Speaker 3: the judges took pity on me and laughed. It was stupid,
• 33:47
  Speaker 3: but I was grateful for their mercy. Were in front
• 33:50
  Speaker 3: of the U. S. Supreme Court on the Texas Ten
• 33:53
  Speaker 3: Commandments monument, and at the time there had been dozens
• 33:58
  Speaker 3: of cases challenging Ten Commandments monuments. Almost all of the
• 34:02
  Speaker 3: monuments had lost the weight of the case. Law was
• 34:05
  Speaker 3: headed very significantly against the public display of the Ten
• 34:08
  Speaker 3: Commandments as the case was being appealed. So we had
• 34:13
  Speaker 3: won in the Fifth Circuit Court of Appeals. The plaine
• 34:16
  Speaker 3: iff a guy named Thomas van Orden, who was an atheist.
• 34:19
  Speaker 3: He was a homeless man who had walked past the monument,
• 34:22
  Speaker 3: was offended by it and filed a lawsuit seeking to
• 34:24
  Speaker 3: tear it down. He filed a cert petition asking the
• 34:28
  Speaker 3: Supreme Court to take the case. Now, normally, if you've
• 34:30
  Speaker 3: won and the other side appeals to the Supreme Court,
• 34:32
  Speaker 3: what you do is you fight against it. You say no, no,
• 34:34
  Speaker 3: don't take this case. There is no split of authority.
• 34:37
  Speaker 3: It's not consequential. You don't need this say no, because
• 34:39
  Speaker 3: if they say no, you've won.
• 34:41
  Speaker 4: Here was the problem.
• 34:43
  Speaker 3: There was an enormous split of authority. I thought the
• 34:45
  Speaker 3: Court was going to take one of these cases very
• 34:47
  Speaker 3: very soon, and we might have won a pyrrhic victory
• 34:51
  Speaker 3: of a short term victory, but if a bad decision
• 34:54
  Speaker 3: came down to the Supreme Court, we'd lose in the
• 34:55
  Speaker 3: long term and lose our monument. So I went to
• 34:57
  Speaker 3: my boss, Greg Abbott, and I said, I think we
• 35:01
  Speaker 3: should do something that's called acquiescing insert, which is we
• 35:05
  Speaker 3: should agree, yes, Supreme Court, you should take this case.
• 35:09
  Speaker 3: And we drafted a brief in opposition where we said,
• 35:13
  Speaker 3: there is a split of authority. It is real, it
• 35:15
  Speaker 3: is deep, it is wide, it is significant. And what
• 35:18
  Speaker 3: we wrote in the brief was, if the Court is
• 35:22
  Speaker 3: inclined to resolve this issue, this case presents the single
• 35:28
  Speaker 3: best fact pattern to uphold a permissible display of the
• 35:32
  Speaker 3: Ten Commandments. It was very risky because if the Court
• 35:36
  Speaker 3: took the case and we lost, everyone would pillory both
• 35:39
  Speaker 3: Abbot and me. You idiots asked them to take this case,
• 35:43
  Speaker 3: and then you got your butt kicked.
• 35:44
  Speaker 4: Well, it ended up we were right. They were going
• 35:46
  Speaker 4: to take a case.
• 35:47
  Speaker 3: They took the Texas case, and they took a case
• 35:50
  Speaker 3: out of Kentucky. They took them both and they scheduled
• 35:52
  Speaker 3: them for argument on the same day as we're preparing
• 35:57
  Speaker 3: the case. Abbot my boss, who was Attorney General. He
• 36:00
  Speaker 3: told me when he started, he said, look, I want
• 36:02
  Speaker 3: to argue one Supreme Court case while I'm ag and
• 36:05
  Speaker 3: let me know which one I should do. And so
• 36:07
  Speaker 3: when this case was granted, I said, General, this is
• 36:09
  Speaker 3: the one.
• 36:09
  Speaker 4: You should do.
• 36:10
  Speaker 3: It's a discreet issue of law, it's incredibly important. He
• 36:14
  Speaker 3: spent two months preparing.
• 36:17
  Speaker 4: For the argument.
• 36:17
  Speaker 3: I put together some moot courts. I did moot court
• 36:19
  Speaker 3: in DC with a murderer's row of Supreme Court advocates.
• 36:24
  Speaker 3: They had collectively over one hundred oral arguments between them,
• 36:27
  Speaker 3: and they just beat him senseless. I actually felt really nervous,
• 36:32
  Speaker 3: Like when you put your boss in front of a
• 36:34
  Speaker 3: moot that like pounds him senseless, You're like, uh, General,
• 36:37
  Speaker 3: I hope that was productive.
• 36:40
  Speaker 4: Please tell me I'm not unemployed.
• 36:42
  Speaker 2: Yeah, yeah, please tell me I'm not gett my walking
• 36:43
  Speaker 2: papers a day.
• 36:44
  Speaker 3: But look, if you do it right, you want the
• 36:46
  Speaker 3: mood to be harder than the actual argument.
• 36:47
  Speaker 4: So he went through did several moods.
• 36:49
  Speaker 3: He was ready for it, and in the brief I
• 36:51
  Speaker 3: told him, I said Okay, General, I've got a plan.
• 36:53
  Speaker 3: So for about three decades, Sandred O'Connor was the deciding
• 36:59
  Speaker 3: vote on every almost every religious liberty establishment caused case
• 37:02
  Speaker 3: in the country. And I read every opinion she'd written
• 37:07
  Speaker 3: over and over and over again. And I told my team,
• 37:10
  Speaker 3: as we're drafting the brief, I said, I want us
• 37:13
  Speaker 3: to swim in Sandradale O'Connor's establishment clause jurisprudence. I want
• 37:19
  Speaker 3: I want this to embody everything she's ever thought or
• 37:22
  Speaker 3: said about the First Amendment. And in fact, I told
• 37:25
  Speaker 3: my lawyers, I said, I want the most frequent words
• 37:28
  Speaker 3: in the brief to be O'Connor comma jay. I want
• 37:31
  Speaker 3: them to occur more frequently than and or the And
• 37:35
  Speaker 3: one of my lawyers said, well, Ted, is it possible
• 37:39
  Speaker 3: to be too obsequious to justice O'Connor.
• 37:41
  Speaker 4: In this brief? I said no.
• 37:44
  Speaker 3: If we can put an oil portrait of Sandradale O'Connor
• 37:47
  Speaker 3: in the cover of our brief, we should do so.
• 37:51
  Speaker 3: And again I was, you know, probably I was a
• 37:53
  Speaker 3: cocky thirty four to thirty five year old. I went
• 37:56
  Speaker 3: to Abbott and I said, General, we are we're living
• 38:00
  Speaker 3: in her psyche. This brief is exactly what Saturday O'Connor thinks.
• 38:06
  Speaker 4: Well.
• 38:07
  Speaker 3: With the oral argument, I'm sorry to say we missed horribly.
• 38:12
  Speaker 3: She was utterly unpersuaded. She voted to strike down the
• 38:16
  Speaker 3: Texas Ten Commandments monument. Now here's where spring Court arguments
• 38:19
  Speaker 3: are weird. Every argument we'd aimed at Sanderdale O'Connor missed her,
• 38:24
  Speaker 3: but bizarrely enough struck Steve Bryer. Wow, Bill Clinton appointee
• 38:30
  Speaker 3: relatively liberal justice, and the two cases I told you
• 38:35
  Speaker 3: there was Kentucky in Texas. Four justices voted to strike
• 38:40
  Speaker 3: down both monuments. Four justices voted to uphold both monuments.
• 38:44
  Speaker 3: Steve Bryer voted to strike down Kentucky and to uphold Texas, which,
• 38:51
  Speaker 3: among other things, was a vindication of if we had
• 38:54
  Speaker 3: an acquiesced insert, the only opinion would have been Kentucky,
• 38:57
  Speaker 3: and it would have been devastating for Ten Commandments monuments
• 39:00
  Speaker 3: the country. There was also a really nice kind of
• 39:02
  Speaker 3: personal vindication in this so Chief Justice Rehnquist had been
• 39:07
  Speaker 3: an original dissenter in a case called Stone versus Graham,
• 39:12
  Speaker 3: which struck down the display of the Ten Commandments in
• 39:15
  Speaker 3: public schools across the country.
• 39:16
  Speaker 4: And he had dissented.
• 39:17
  Speaker 3: He said, this is not the first Amendment, this is
• 39:19
  Speaker 3: not right.
• 39:21
  Speaker 4: Van Orden versus Perry.
• 39:23
  Speaker 3: Chief Justice Rehnquist wrote the plurality opinion for the court
• 39:28
  Speaker 3: upholding Texas's display of the Ten Commandments. It was the
• 39:32
  Speaker 3: very last opinion Chief Justice Rehnquist ever wrote, and he
• 39:35
  Speaker 3: passed away later that summer, And so, as his former clerk,
• 39:39
  Speaker 3: it was really cool to have been part of a
• 39:43
  Speaker 3: case where he was able to vindicate a view he
• 39:46
  Speaker 3: had articulated two decades earlier. And sandreday O'Connor, when it
• 39:50
  Speaker 3: came to the standards, we didn't meet her standards, but
• 39:53
  Speaker 3: miraculously enough Steve Bryer liked what we had to say,
• 39:56
  Speaker 3: and so we entered. And by the way, since then,
• 39:59
  Speaker 3: the mccreer case out of Kentucky has proven to be
• 40:01
  Speaker 3: a very unimportant precedent. It is rarely cited, and the
• 40:05
  Speaker 3: vad Ordon case changed the entire direction of case law.
• 40:08
  Speaker 3: So the tenth Ten Commandments displays are now routinely.
• 40:12
  Speaker 1: Uphilld Well this one. I love doing the show. It's
• 40:14
  Speaker 1: so fun to get to talk about this. Since Sandreday O'Connor,
• 40:17
  Speaker 1: the first woman on the Supreme Court. Die passed away
• 40:19
  Speaker 1: at the age of ninety three. Center always a pleasure.
• 40:22
  Speaker 1: Don't forget download this podcast said, make sure that subscribe
• 40:25
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• 40:27
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