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Books of The Times

Bumpy Start for a Court Cloaked in Grandeur

Sandra Day O’Connor or, as she likes to call herself, the Fwotsc — the First Woman on the Supreme Court — is the author of one wonderful book: “Lazy B,” an evocative memoir about growing up among “old-time, long-suffering, good-natured cowboys” on a cattle ranch on the Arizona-New Mexico border. Written with her brother, H. Alan Day, that book not only did a magical job of conjuring an isolated and now vanishing world of big skies and wide-open plains, but it also underscored how the frontier values of her childhood — self-reliance, competence and dependability — shaped her pragmatic judicial philosophy.

Her next book, “The Majesty of the Law,” a collection of speeches and essays on legal history, was drier and less revealing, although it contained some interesting musings on women and the law. Her latest, “Out of Order,” is even more of a hodgepodge: a look at the history of the Supreme Court; portraits of famous justices, including Oliver Wendell Holmes and William O. Douglas; and a bunch of asides about things like humor on the court. (A law professor’s 2005 study of “laughter episodes instigated,” she notes, suggested that Antonin Scalia was the funniest justice, with Stephen Breyer coming in a faraway second.)

There are no big revelations in this volume about Bush v. Gore or the author’s thoughts on Roe v. Wade; nor are there momentous insights into the dynamics between Justice O’Connor and her colleagues on the bench, or how she felt about being the crucial swing justice, whom the legal writer Jeffrey Rosen once called “the most powerful woman in America.” Her moving remarks about Thurgood Marshall here echo some she made in “The Majesty of the Law,” and other observations walk in the footsteps of ones she has made in the past as well.

The reason to read “Out of Order” is to get Justice O’Connor’s succinct, snappy account of how today’s court — so powerful, so controversial and so frequently dissected by the media — evolved from such startlingly humble and uncertain beginnings that it initially seemed like a jerry-built enterprise constructed on entirely ad hoc principles.

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Credit...Patricia Wall/The New York Times

Justice O’Connor writes that in its early years, the court “had no home, little money, and virtually no cases” — “it is a wonder it survived at all!” Indeed many aspects of the court were “shaped and developed little by little, year by year, person by person.” After all, Article III of the Constitution, which vested the “judicial Power of the United States” in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” left Congress with an awful lot of blanks to fill in.

John Jay, nominated by George Washington to be the first chief justice of the new court, resigned the post after six years to become governor of New York and spurned John Adams’s efforts to return him to the court, citing health problems and what he called the court’s lack of “energy, weight and dignity.” In his opinion, Justice O’Connor writes, “the Supreme Court would never amount to much.”

Early court records, she goes on, “were rife with textual errors, corrections and revisions” — not least because the clerk’s and reporter’s offices were a far cry from the professional operations they are today. Written opinions, she says, were not required until 1834, during President Andrew Jackson’s administration.

For almost a century and a half, the court lacked a permanent home and led a nomadic existence, moving from the Merchants Exchange Building in New York to what is now known as Independence Hall in Philadelphia and later to the Capitol Building in Washington before settling, in 1935, into the magisterial marble edifice designed by the architect Cass Gilbert that it now occupies.

To complicate matters further, Justice O’Connor points out, for much of the court’s first century, the justices also had to serve as roving trial judges in the lower federal courts, traveling thousands of miles a year around the country (and this was before airplanes) to preside over trials and intermediate appeals. It took some justices six months a year, she reports, to complete their circuits — which meant six months a year away from their families, trundling from town to town over rough roads by horse and carriage and staying in taverns along the way, where “they were sometimes forced to share rooms with unsavory characters.”

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Sandra Day O'Connor being sworn in by Warren Burger, chief justice, left, in 1981, as her husband, John, held two bibles.Credit...Associated Press

Many other aspects of the court have also changed over the years, including the style of oral argument that lawyers have employed there. Justice O’Connor observes that the classical allusions and emotional appeals of a Daniel Webster (who compared the plight of Dartmouth College to that of Julius Caesar, surrounded “by those who are reiterating stab upon stab”) gradually gave way to the more concise, almost conversational style of Thurgood Marshall and his “understated method of answering questions with succinct answers,” which would prove to be “the path of the future.”

As for the vociferous debates over recent cases (like Bush v. Gore, perhaps, or Citizens United), Justice O’Connor suggests that they pale next to earlier events in the history of our judicial system. For instance, the Judiciary Act of 1801 (passed in the final days of John Adams’s administration) was denounced by Thomas Jefferson’s Republicans as a Federalist scheme to pack the new circuit courts with Federalist appointments; and after the inauguration of Jefferson and a Republican-majority Congress, the act was repealed.

“In one stroke, the Republicans had dismissed 16 sitting federal judges, all of them appointed by the opposing party,” she writes. “Can you imagine the scandal? I don’t think anything in modern history even comes close. But the Republicans’ next move was even more brazen. To prevent the Supreme Court from striking down the Repeal Act as unconstitutional, Congress simply canceled the Court’s next Term!”

How else has the court changed in recent years? Justice O’Connor says it’s “highly unlikely” that a president today “would nominate a federal jurist who had no law degree and no experience as a lawyer or judge.”

And, she adds toward the end of this slender volume, you can “safely predict” that Byron White (chosen by President John F. Kennedy) will be the last Supreme Court justice “to ever lead the N.F.L. in rushing in a rookie season.”

OUT OF ORDER

Stories From the History of the Supreme Court

By Sandra Day O’Connor

233 pages. Random House. $26.

A version of this article appears in print on  , Section C, Page 1 of the New York edition with the headline: Bumpy Start For a Court Cloaked In Grandeur. Order Reprints | Today’s Paper | Subscribe

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