Verdict with Ted Cruz - December 04, 2023


War Stories from the Court： Remembering Justice Sandra Day O'Connor


Episode Stats

Length

42 minutes

Words per Minute

175.41205

Word Count

7,535

Sentence Count

609

Misogynist Sentences

16

Hate Speech Sentences

5


Summary


Transcript

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00:01:45.500 Welcome.
00:01:46.160 It is Verdict with Senator Ted Cruz.
00:01:47.960 Ben Ferguson with you.
00:01:49.220 And one of the things I love about doing this podcast, Senator,
00:01:53.000 is the fact that we can hit the pause button on the big news,
00:01:56.760 breaking news and legislation when we have days like the news that we just had happen this week.
00:02:03.660 Sandra Day O'Connor, the first woman,
00:02:05.900 talk about breaking the glass ceiling on the Supreme Court,
00:02:09.160 has passed away at the age of 93.
00:02:11.340 And, Senator, you knew her.
00:02:12.880 You clerked to the Supreme Court.
00:02:14.260 And I think we should take a moment and talk about her legacy
00:02:17.580 and what she meant to the history of this country,
00:02:20.860 especially as being the first woman on the Supreme Court.
00:02:23.520 Well, listen, Sandra Day O'Connor was an extraordinary person.
00:02:27.160 And she's an historic person.
00:02:28.560 She's a trailblazer any way you look at it.
00:02:31.200 She was the first woman in our nation's history to serve on the Supreme Court.
00:02:35.120 It's worth pausing and thinking for a second.
00:02:37.660 We did not have a woman on the Supreme Court until 1981,
00:02:40.820 until Ronald Reagan was president when he was campaigning for president against Jimmy Carter.
00:02:46.840 Yeah.
00:02:47.180 He promised if there's a vacancy, he would appoint a woman.
00:02:50.860 And he did.
00:02:52.780 Sandra Day O'Connor's life, she grew up on a ranch in Arizona.
00:02:56.100 She was a tough Western woman.
00:02:59.520 She had a life in politics.
00:03:01.900 She was in the Arizona state legislature.
00:03:04.180 She was the Senate majority leader in the Arizona legislature.
00:03:08.040 Before that, she was obviously a lawyer.
00:03:11.220 She went to Stanford Law School.
00:03:12.900 She was classmates with a fellow by the name of William Hubbs Rehnquist.
00:03:17.760 Rehnquist, who would later become the 16th Chief Justice of the United States.
00:03:22.340 And as you know, Rehnquist was my boss, was an extraordinary man.
00:03:26.540 That class at Stanford, Rehnquist was number one in his class.
00:03:31.420 Sandra Day O'Connor was number three in his class, in their class.
00:03:35.200 Wow.
00:03:35.860 I've always wondered whatever happened to the poor schlub who was number two.
00:03:39.740 You've really got to feel like a loser to be between the two of them.
00:03:43.680 Now, interestingly enough, when they were in law school, William Rehnquist and Sandra Day O'Connor dated.
00:03:51.800 No way.
00:03:52.880 Not only did they date, but Rehnquist asked her to marry him, and she said no.
00:04:00.580 This isn't a wives' tale.
00:04:01.580 This is legit.
00:04:02.100 No, no.
00:04:02.400 This is – he was my boss.
00:04:04.160 I knew him.
00:04:04.620 He was a mentor.
00:04:05.560 I knew him very well.
00:04:08.760 Subsequently, they both got married.
00:04:10.320 Yeah.
00:04:11.200 And –
00:04:12.000 Wait.
00:04:12.280 Did you ever hear the story of the saying no and how that went down?
00:04:15.380 Just that it happened.
00:04:16.640 I will say, look, there are some things as a law clerk you can ask your boss.
00:04:22.060 Chief, how did the girl you asked you to marry you say no?
00:04:25.040 That's not one of the questions a law clerk can ask your boss.
00:04:27.700 That's a very good decision.
00:04:28.720 Fair point.
00:04:29.420 So – but he and his wife and she and her husband became lifelong friends.
00:04:33.060 That's so cool.
00:04:33.660 And so she was Sandra Day.
00:04:37.040 Yeah.
00:04:37.600 And she was dating a fellow named John O'Connor, who obviously became her husband.
00:04:43.120 She described – she wrote an autobiography about growing up on the ranch, and she describes
00:04:47.500 how she brought her then-boyfriend back to the ranch to meet her parents.
00:04:54.080 And she said her dad took John out on the ranch.
00:04:59.780 She said, it so happened that that was the day my dad was castrating calves.
00:05:07.020 That's a smart dad right there, by the way.
00:05:08.500 She writes in the book, I wonder if he was trying to send a message.
00:05:12.760 And I got to say, as the father of daughters, I find something exquisitely beautiful about
00:05:21.080 having a conversation about some – look, you're the father of sons, so you may not
00:05:26.320 appreciate the beauty of ripping the testicles off of a live creature while you're talking
00:05:32.660 about some boy that wants to date your daughter.
00:05:34.480 Yeah.
00:05:35.040 But that's what Sandra Day O'Connor's dad did.
00:05:37.960 So she had a life where she was in politics, and then she ended up in 1981 when Reagan is
00:05:46.380 president, being appointed to the Supreme Court, being the first female Supreme Court justice.
00:05:53.340 Now, I got to say, as the dad of two daughters, that was a really significant threshold.
00:05:59.880 Sure.
00:06:00.720 You know, I asked my girls the day Justice O'Connor died, I said, do you know who Sandra Day O'Connor
00:06:06.380 is?
00:06:06.780 And my 15-year-old daughter said, yeah, dad, I do.
00:06:09.080 I'm not going to tell you.
00:06:10.260 My 13-year-old said, I have no idea and I don't care, which you can look forward to this
00:06:15.360 when you have teenagers.
00:06:16.400 Yes.
00:06:17.440 So I tried to explain briefly to them, and then they're like, yeah, yeah, whatever, dad.
00:06:21.720 So Justice O'Connor on the court, she was a trailblazer.
00:06:25.980 She and Tony Kennedy, who was Reagan's third appointee, were the swing votes for 20 years.
00:06:35.940 So basically, the way the court played out for a long time is there were three reliable
00:06:42.500 conservative justices, William Rehnquist, Antonin Scalia, and Clarence Thomas.
00:06:47.380 There were four reliable left-wing justices.
00:06:51.020 And then in the middle, exquisitely in the middle, were Sandra Day O'Connor and Tony Kennedy.
00:06:58.480 And the basic dynamic was, look, the left wing of the court had four votes.
00:07:04.160 They needed to get one of them.
00:07:05.440 Yeah.
00:07:05.560 And if they got one of them, they won 5-4.
00:07:08.840 And so to have a conservative victory on the court, you had to hold on to O'Connor and
00:07:12.240 you had to hold on to Kennedy.
00:07:13.300 And that was a complicated dynamic.
00:07:15.340 They were each susceptible to different issues.
00:07:18.760 Yeah.
00:07:19.680 So Sandra Day O'Connor was someone who believed powerfully in balancing.
00:07:25.500 There's a law review article that Antonin Scalia wrote called The Rule of Law is the Law of
00:07:31.100 Rules.
00:07:31.720 And in law, there's a basic divide between do you have judges laying out bright line rules
00:07:38.840 or do you have judges engaging in standards?
00:07:42.340 Now, what are the advantages of a bright line rule?
00:07:45.520 A bright line rule is clear, it's predictable, and you can anticipate it.
00:07:50.300 You know what it is.
00:07:51.380 You know what the line is.
00:07:53.400 Scalia was a big advocate of bright line rules.
00:07:56.220 What are the disadvantages of bright line rules?
00:07:58.460 Well, there can be instances in which it's unfair.
00:08:01.820 If you have an absolute cutoff, there can be a particular instance in which it's unjust
00:08:05.840 for someone to get hammered on the other side of a bright line.
00:08:10.220 Sandra Day O'Connor loved balancing tests.
00:08:14.900 She loved amorphous standards.
00:08:17.260 Now, what is the advantage of an amorphous standard?
00:08:19.680 Well, you can respond to fairness.
00:08:22.080 You can make sure that if someone's particularly deserving, you take care of them.
00:08:25.660 If someone's particularly undeserving, they get their just results.
00:08:31.740 What are the disadvantages of standards?
00:08:33.980 No one knows what the hell the rule is beforehand.
00:08:36.380 So if someone's trying to order their conduct, if someone's trying to say, if you're a lawyer
00:08:41.160 in private practice and you're advising a client, can you engage in the following conduct?
00:08:46.520 If the judges are employing standards, like, I don't know, depends if the judge thinks the
00:08:51.760 conduct is good or bad.
00:08:52.920 It's very hard to anticipate what the rules are going to be if it's simply the judge's
00:08:58.900 own sense of fairness and equity and balancing.
00:09:02.140 So on that divide, O'Connor was really a counterpoint to Scalia.
00:09:07.400 She believed in standards.
00:09:09.860 Scalia believed in rules.
00:09:12.420 The divide was dramatic, but I can tell you, so I argued in front of Justice O'Connor numerous times.
00:09:18.000 How was that, by the way, and how do you prepare for that?
00:09:20.220 Because I know when you're going to up there, you're going to probably, I'm assuming, try
00:09:25.300 to make points to certain justices that you think would connect with them so that they
00:09:29.420 like you, you know some of their tendencies.
00:09:31.940 But when you go up against, you go in front of, I say, the Supreme Court, and you're looking
00:09:36.320 at Sandra Day O'Connor, who's literally broke the glass ceiling.
00:09:39.560 Was that intimidating as a lawyer the first time you're there?
00:09:42.280 I mean, did you, and knowing how she is?
00:09:44.280 So my first oral argument was on October 7, 2003.
00:09:48.480 I was 32 years old.
00:09:50.420 It was a case called Frue v. Hawkins.
00:09:52.580 I had just been appointed Solicitor General of Texas the beginning of that year.
00:09:57.040 And look, I got to say, number one, how do you prepare for it?
00:10:00.400 I had spent literally thousands of hours getting ready for that oral argument.
00:10:05.300 I'd spent an enormous amount of time on the brief.
00:10:07.780 It was a very complicated brief.
00:10:09.300 So I'd written the briefs in that case.
00:10:11.240 I did four moot courts, and you asked, was it intimidating?
00:10:15.800 I got to admit, at 32, look, I was a pretty cocky kid.
00:10:20.220 I know you find that hard to believe.
00:10:21.500 It's totally out of character with me now.
00:10:23.400 Yes.
00:10:23.820 But at 32, I felt pretty good about my abilities to handle this.
00:10:29.360 And so I had a rule every time I did an oral argument.
00:10:34.060 I would supercharge my sleep.
00:10:35.720 It's interesting.
00:10:36.480 There is physiological testing that sleep matters enormously for mental acuity.
00:10:43.740 And actually, sleep the night before matters, but it matters even more two nights before.
00:10:48.520 So when I was in college, I used to teach the SAT at Princeton Review, which was really fun.
00:10:52.960 And we would advise kids, if you're taking the SAT or the LSAT or the MCAT or whatever test, get a ton of sleep the night before.
00:11:00.360 Get a ton of sleep two nights before.
00:11:02.540 So every oral argument, I would, the night before and two nights before, try to get nine to ten hours sleep.
00:11:07.480 By the way, in politics, before any debate, I try to do that for two nights in a row, get nine to ten hours sleep, because your brain is a half second faster.
00:11:16.400 And in combat, a half second matters.
00:11:20.200 Well, the night before my oral argument, I went to bed at like 8.30 at night.
00:11:23.680 I laid down in bed, and I stared at the ceiling and did not sleep a minute.
00:11:28.800 Yeah.
00:11:29.180 And I'm sitting there like, all right, big guy, you feel really confident, but you're scared out of your mind.
00:11:34.140 And so my first Supreme Court argument ended up being with an all-nighter involuntarily because I could not fall asleep.
00:11:40.600 Now, my first argument was a case, Fru versus Hawkins.
00:11:43.460 It was at the outer edge of federalism.
00:11:47.780 Having done four moot courts, I knew we didn't have a prayer.
00:11:50.980 We were not going to win.
00:11:52.200 And in fact, my home run that I wanted is I wanted to lose 8-1.
00:11:57.200 And I wanted to lose 8-1.
00:11:58.820 I wanted a Clarence Thomas dissent.
00:12:01.240 My whole argument was, come on, Justice Thomas, give me this dissent.
00:12:05.440 Come on, you can do it.
00:12:06.560 And so the argument – all right, I'll get a little bit into the weeds.
00:12:10.380 The argument concerned a consent decree that a Democrat attorney general of Texas, Dan Morales, had entered into
00:12:16.100 that dramatically increased the amount of money that Texas spent on Medicaid.
00:12:21.520 Dan Morales was a Democrat.
00:12:22.920 He entered into that consent decree because the legislature would never agree to that.
00:12:26.180 Dan Morales wanted it, and so it was a complicit consent decree between a liberal Democrat and a plaintiff's lawyer
00:12:33.140 that both agreed, let's force the taxpayer to spend a bunch of money on things that we want them to spend
00:12:38.180 that the elected legislature would never agree to.
00:12:41.680 John Cornyn, who was attorney general of Texas, had challenged that consent decree and gotten a court to overturn it.
00:12:47.700 Then Greg Abbott became the next attorney general.
00:12:51.340 He appointed me as solicitor general.
00:12:53.440 The Fifth Circuit had upheld overturning that consent decree, and the Supreme Court granted cert.
00:12:59.840 It took the appeal.
00:13:01.580 Now, the problem was, once they took the appeal, there was no circuit split.
00:13:04.860 Generally, the Supreme Court takes cases when the courts of appeals disagree.
00:13:08.240 There was no split.
00:13:09.400 Wow.
00:13:09.720 The only reason to take the case was to reverse.
00:13:12.980 And so I got up at the oral argument.
00:13:15.200 It's the first case.
00:13:16.440 So the Supreme Court term always begins on the first Monday of October.
00:13:19.520 My argument was the first case and the first day of the term.
00:13:23.340 And I got up, and I'm presenting the argument.
00:13:25.420 And by the way—
00:13:26.320 Is that good or bad news, by the way?
00:13:27.620 Because I don't know how—I mean, is that a—
00:13:28.840 It doesn't particularly matter.
00:13:30.080 It was kind of a cool coincidence, but it doesn't matter.
00:13:32.400 But what's interesting—so, look, if you watch TV, you think that a Supreme Court argument is giving some peroration, some speech where you're Clarence Darrow, you're going to speak and soar.
00:13:47.260 That is not a Supreme Court argument.
00:13:50.600 You begin with, Mr. Chief Justice, and may it please the court.
00:13:53.340 Every argument begins with that opening.
00:13:55.480 And you begin talking, and the justices will interrupt you with questions, and they'll do it fast, and they'll fire at you.
00:14:04.060 And I've told what I used to teach at UT Law School.
00:14:07.620 I would tell my students, I said, look, an oral argument is front of the Supreme Court.
00:14:11.960 You're standing in front of the nine of the smartest lawyers on the planet, and you're a little bit like a chunk of tuna being fed to a school of sharks.
00:14:21.060 They come at you every direction, and every question you're trying to think of, okay, how do I answer this?
00:14:28.880 And you've got to understand, if you're answering a question, a smart justice—so the questions are generally not inquisitorial in the sense of, hey, what are the facts on this?
00:14:41.280 Hey, what's the law on this?
00:14:42.420 Most arguments you go in, and two or three or four justices are on one side of the issue, and two or three or four justices are on the other side of the issue.
00:14:49.760 And you know that going in.
00:14:51.060 Yes, and there are one or two that are in the middle, and what happens is—so the justices don't talk to each other before an argument.
00:14:57.160 They basically—
00:14:58.320 Is that a legal thing, or is that just tradition?
00:15:00.180 No, it's tradition.
00:15:01.020 It's not a legal thing.
00:15:01.900 They can do it, but they basically operate like nine separate law firms that happen to share the same building.
00:15:08.740 So typically, the very first time the justices will have discussed the case—
00:15:13.740 Is there with you in the room?
00:15:15.040 At the oral argument.
00:15:16.060 And so you will get questions, number one, from the justices who disagree with you.
00:15:21.380 They're trying to ask a question in a line of questions to make your position look utterly imbecilic.
00:15:27.260 So the reason you need that half-second speed is you're trying to anticipate, if I answer yes to question one, where does question two, three, four, and five take me?
00:15:35.260 Because they want you to answer question five something so ridiculous that the swing justice says, well, no, no, no, I couldn't possibly agree with that position.
00:15:44.060 On the other hand, the justices who agree with you, they'll typically—they think you're an idiot, too.
00:15:51.080 So they'll typically jump in, well, counsel, don't you mean to say the following?
00:15:54.540 And they're actually trying to argue to their colleagues through you.
00:16:00.120 Trying to help you.
00:16:01.360 They're trying to help you.
00:16:03.040 And so as an advocate, you're responding to this.
00:16:05.640 Now, that's in a normal case.
00:16:08.320 In many of the cases, I argue that's what played out.
00:16:10.660 That was not Fru.
00:16:12.780 Fru, if you go back and read the transcript, and I have, there are three pages in the middle of the transcript
00:16:18.440 where I do not get out two consecutive syllables.
00:16:23.800 In 30 minutes of argument, I did not have a single positive question.
00:16:28.580 I didn't have a single neutral question.
00:16:31.020 There's a whole—the three pages, there's a section where Scalia jumps in with da-da-da-da-da-da-da, and I go, ya.
00:16:38.700 And then Ginsburg jumps in and goes, ba-ba-da-da-da-da-da, and I go, da.
00:16:41.960 And I have three pages where I go, ya, ba, da, that's it.
00:16:46.180 That's all I get.
00:16:47.200 But—and most of the questions came down to the following.
00:16:52.220 Counsel, how the hell can you say that the state didn't consent to a consent decree?
00:17:00.700 Yeah.
00:17:01.400 You're like, okay, Justice, yes, that's a problem.
00:17:03.580 I agree.
00:17:04.780 But my argument, which I still think is right, is how can it be that one temporary officeholder in the state
00:17:11.300 can permanently give away the authority of the people of the state to elect their legislature and make policy decisions?
00:17:21.380 By the way, Dan Morales, after he agreed to this consent decree, he was convicted of a felony and sent to prison.
00:17:26.780 No way.
00:17:27.060 So the guy who did this was in the penitentiary.
00:17:31.420 Anyway.
00:17:31.760 That's a good excuse of not being there that day in court, though, right?
00:17:33.960 It was.
00:17:35.520 So, oral argument preceded 30 minutes.
00:17:39.120 It was brutal.
00:17:41.140 I told you my home run was an 8-1 loss with a Clarence Thomas dissent.
00:17:46.760 I'm sorry to say I failed utterly.
00:17:49.180 I lost 9-0.
00:17:51.420 The opinion rejected everything we said across the board.
00:17:54.940 Afterwards, I went and saw Chief Justice Rehnquist, my own boss.
00:17:58.760 The case was decided so you could sit down and talk with him after it was done.
00:18:02.400 So it was the afternoon I had tea with him.
00:18:04.180 It's one of the things he liked to do was have tea in the afternoon with his former clerks.
00:18:07.760 Did he love, by the way, the fact that you were a former clerk that was then arguing in front of him?
00:18:12.280 And he had had many former clerks.
00:18:14.120 Okay.
00:18:14.420 Like he was –
00:18:15.920 But it's got to be cool.
00:18:17.500 I mean, you're looking out there and it's somebody that worked on your staff.
00:18:20.660 Yes, but among his former clerks are a guy named John G. Roberts who became the next Chief Justice of the United States.
00:18:25.820 So I think it's fair to say he was not unused to having former clerks argue in front of him.
00:18:31.760 And Rehnquist says to me, he goes,
00:18:34.360 Uh, Ted, they say for your first argument, you should pick a case you can't lose or can't win.
00:18:46.080 I think you chose wisely.
00:18:48.900 I was like, thanks, Chief.
00:18:50.760 Thanks.
00:18:51.200 All right.
00:18:51.460 So let's go back to more O'Connor stories.
00:18:53.700 So they were classmates.
00:18:56.600 Rehnquist was appointed by Richard Nixon.
00:18:59.180 By the way, he was appointed – he was the head of the Office of Legal Counsel under Nixon.
00:19:04.620 Nixon couldn't remember his name.
00:19:06.180 If you look at the Nixon White House tapes, they were going through choices.
00:19:12.460 They were having a really rough time with choices.
00:19:15.120 And Nixon says,
00:19:16.220 What about Wrenchberg?
00:19:18.080 And Wrenchberg became an Associate Justice of the Supreme Court.
00:19:21.800 He couldn't get his name right, but he became nominated nonetheless.
00:19:24.360 So when Reagan was president, he had promised to nominate the first woman.
00:19:32.840 In 1981, there were very few women that had judicial careers.
00:19:37.420 The sort of list of potential nominees to choose from was quite limited in 1981,
00:19:43.820 and especially if you were looking for conservatives.
00:19:46.500 It was almost non-existent.
00:19:49.100 And so Rehnquist actually suggested Sandra Day O'Connor, his old classmate, his old girlfriend,
00:19:54.100 and Reagan took him up on it.
00:19:57.060 Now, the year I clerked at the court was 1996 to 1997.
00:20:01.320 That year was the very first case challenging the Congress had passed a law governing Internet porn.
00:20:12.400 And it was the first challenge to a regulation of Internet porn.
00:20:17.240 And this is 1996.
00:20:19.340 The justices didn't know what the Internet was.
00:20:22.680 I mean, this was really early on.
00:20:25.300 And so the court librarians...
00:20:27.320 You know, in my head right now, I'm thinking,
00:20:28.420 what was the median age of the Supreme Court back then?
00:20:31.000 A thousand and seven.
00:20:31.900 Yeah, okay.
00:20:32.500 Like, they're really old.
00:20:34.740 So the...
00:20:36.560 You've got mail.
00:20:37.400 Did you have to show them how to do that?
00:20:38.960 Okay.
00:20:39.640 So the librarians of the court decide,
00:20:43.220 we're going to try to do a tutorial to explain the Internet to the justices.
00:20:49.360 And it so happened that they linked together the Rehnquist chambers and the O'Connor chambers.
00:20:55.640 And so we had a small room.
00:20:58.840 We had William Rehnquist, the Chief Justice of the United States.
00:21:02.800 We had Sandra Day O'Connor.
00:21:03.900 We had O'Connor's four law clerks.
00:21:05.580 We had Rehnquist's three law clerks.
00:21:07.200 We're all in this tiny, dark room.
00:21:09.360 And there's a Supreme Court librarian who is typing search queries into the Internet to explain what it is.
00:21:16.940 And she types in the word...
00:21:20.080 Number one, she turns off all the filters, the porn filters that would normally keep it out.
00:21:24.280 And then with the filters off, she types in the word cantaloupe, misspelled.
00:21:28.760 And cantaloupe, misspelled in 1996, with no filters on, pulled up, graphic hardcore pornography.
00:21:36.340 And so I'm sitting, standing in a darkened room right behind Sandra Day O'Connor, looking at a computer screen of graphic porn.
00:21:46.620 And Ben, to this day, I still remember what Justice O'Connor said as she looked at it.
00:21:50.720 She goes,
00:21:51.500 Oh, my.
00:21:53.460 And I have to admit, number one, it's awkward as all hell.
00:21:58.320 I'm like, get me out of here.
00:21:59.400 Like, I don't want to be in this room with a septuagenarian watching porn right now.
00:22:04.980 But I also couldn't help thinking, like, I knew the history.
00:22:08.580 I knew that Rehnquist had dated O'Connor.
00:22:11.200 And I couldn't help thinking, how weird is this for my boss?
00:22:15.500 That he's standing next to his old girlfriend.
00:22:18.920 Who could have been his wife.
00:22:20.500 Fifty years later, and they're watching porn with their employees.
00:22:24.420 At the Supreme Court.
00:22:25.620 It was a surreal moment.
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00:23:51.220 Canadian women are looking for more.
00:23:53.480 More out of themselves, their businesses, their elected leaders, and the world around them.
00:23:57.660 And that's why we're thrilled to introduce the Honest Talk podcast.
00:24:01.380 I'm Jennifer Stewart.
00:24:02.560 And I'm Catherine Clark.
00:24:03.520 And in this podcast, we interview Canada's most inspiring women, entrepreneurs, artists, athletes, politicians, and newsmakers,
00:24:11.100 all at different stages of their journey.
00:24:13.300 So if you're looking to connect, then we hope you'll join us.
00:24:16.520 Listen to the Honest Talk podcast on iHeartRadio or wherever you listen to your podcasts.
00:24:20.580 I want to ask you this real quick about Sandra Day O'Connor and just the history aspect of this.
00:24:28.900 Sandra Day O'Connor, a lot of people don't remember her the same way that they remember, you know, Ginsburg, for example.
00:24:37.400 Was her breaking the glass ceiling and her legacy and being the first the way that you described it,
00:24:43.680 do you think in America we appreciate what she did and how big of a deal that was?
00:24:48.200 No.
00:24:48.400 Because the media obviously picked their favorites.
00:24:50.720 It wasn't her.
00:24:51.800 Well, because she was a Republican, it was not her.
00:24:54.760 And there were issues on which – there were some issues on which Justice O'Connor was relatively conservative.
00:24:59.840 On federalism, she could be quite strong.
00:25:01.940 She was a Westerner.
00:25:03.660 She had a fondness.
00:25:06.180 So each of the justices had their own kind of quirks.
00:25:08.980 They tended to hire clerks that kind of reflected sort of their personality.
00:25:14.780 So Antonin Scalia would hire sharp, hard-elbowed, really smart Harvard lawyers.
00:25:23.420 That was just – you know, that's who Scalia hired.
00:25:26.780 David Souter tended to hire gay, hippie, philosophical, long-haired clerks wearing Birkenstocks.
00:25:37.960 Rehnquist, my boss –
00:25:39.380 You're saying you wouldn't have gotten that job.
00:25:40.800 No, no.
00:25:41.380 I was not in the running for suitors.
00:25:44.920 I'm okay with that.
00:25:46.700 Rehnquist tended to hire kind of all-American like Rhodes Scholar.
00:25:51.540 He hired athletes.
00:25:52.340 He didn't like Harvard.
00:25:53.200 He didn't like Yale.
00:25:54.580 I was actually a bizarrely atypical Rehnquist clerk.
00:25:58.500 You would have been much more likely to get hired by Rehnquist because he hired athletes, and part of the Rehnquist clerkship is you had to play tennis with him every week.
00:26:08.300 That's the closest I would have ever gotten to clerking on the Supreme Court was that one qualification.
00:26:12.220 So – and he would – so we played tennis Thursday mornings, 11 a.m.
00:26:16.120 And actually, so you had – so in any given year, there are roughly 8,000 petitions for certiorari, which is a request for the Supreme Court to take an appeal.
00:26:26.960 The court grants about 80 a year, so they grant about 1%.
00:26:30.560 The way the court resolves those is they have something called the cert pool, which is the law clerks that are there, they divvy up the cert petitions, and you write memos.
00:26:39.280 So in a given week, you typically had to write seven to eight memos.
00:26:43.220 They could be anywhere from one page to 20 pages, analyzing the cert petition and making a recommendation to the justices whether they should take the case.
00:26:51.560 The pool memos were due Thursday at noon.
00:26:55.080 We played Thursday at 11.
00:26:57.160 And you've got to understand, the clerkship, like you work – most days you work from – I work from about 9 a.m. to 1 a.m. every day.
00:27:03.920 I mean, you work your tail off.
00:27:06.240 Many weeks, because what starts off – you start off in the summer, you're just doing pool memos, that takes all your time.
00:27:13.000 Then you get to argued cases, you're preparing for argued cases, that takes more time.
00:27:17.000 Then the court starts deciding decisions, you're drafting opinions for your justice, that takes even more time.
00:27:24.960 And then you've got emergency appeals, things like death penalty cases.
00:27:29.120 So what happens is the pool memos, you end up compressing in a really short period of time.
00:27:34.400 So an awful lot of Wednesday nights, I would pull an all-nighter.
00:27:37.920 I'd be there all night because I'd start at like 10 o'clock at night Wednesday.
00:27:40.840 I'd do an all-nighter to finish my pool memos, and then you'd go play tennis with the chief.
00:27:44.880 And actually, O'Connor liked to play tennis with him.
00:27:47.400 But the chief tended to hire – I went to Harvard.
00:27:51.480 I was not an athlete.
00:27:52.800 I was not a tennis player.
00:27:54.140 My two co-clerks, one of them played JV tennis at Yale.
00:27:57.000 The other was captain of his high school tennis team.
00:27:59.480 I actually think the chief screwed up hiring me.
00:28:01.900 I think they like picked the wrong pile.
00:28:04.300 They made a phone call, and they got embarrassed and just didn't retract it.
00:28:07.680 But I have a really ignominious distinction.
00:28:11.880 So for 20-plus years, the chief always picked the best tennis player to be his partner, because we played doubles.
00:28:19.280 So my year, the best tennis player was David Hoffman.
00:28:21.860 He was the JV tennis player at Yale.
00:28:23.200 First week we played, David and the chief versus Rick and me, the score was 6-0, 6-0.
00:28:31.520 The next week we played, the score was 6-0, 6-0.
00:28:34.740 The next week we played, the score was 6-0, 6-0.
00:28:37.940 After three weeks, the chief got upset, and I am the only chief clerk in history who was so bad.
00:28:43.440 The chief gave me the best player as my partner.
00:28:47.360 Just to make it competitive.
00:28:48.740 I love that.
00:28:49.320 And for the rest of the year, we ended up actually generally winning, but it'd be like 6-4, 6-5.
00:28:54.980 It was competitive.
00:28:55.980 And basically, David would cover three-fourths of the court, and I'd kind of stay in one small spot and try not to screw up too many points.
00:29:03.040 But that was part of the job.
00:29:06.020 O'Connor had, once a week, an aerobics class that would be held in the court.
00:29:14.500 And so in the court, you have the building of the court above the courtroom.
00:29:20.320 The courtroom, the roof of the courtroom has 24-carat gold gilded into the roof of the courtroom.
00:29:24.900 It's really high.
00:29:26.080 If you go up higher, the roof on top of the courtroom is the floor of a basketball court.
00:29:33.800 And so when I clerked at the court, I played hoops three times a week, Monday, Wednesday, and Friday.
00:29:37.960 Same schedule as our podcast.
00:29:39.140 And we would run full court two hours, Monday, Wednesday, and Friday.
00:29:44.920 We actually had some pretty good games.
00:29:46.780 You were in the best shape of your life.
00:29:47.980 I actually, like six hours a week of full-court basketball, you were in good shape.
00:29:54.140 O'Connor would have an aerobics class up on the court.
00:29:59.900 And look, O'Connor was a pioneer in a lot of the sex discrimination cases.
00:30:04.500 You know what's fascinating?
00:30:06.780 Justice O'Connor allowed no men in her aerobics class.
00:30:09.940 Only women were allowed.
00:30:11.500 And it was an absolute blatant sex discrimination.
00:30:15.220 She's like, you're not seeing me in a leotard, and you're not welcome.
00:30:18.780 Yeah.
00:30:19.300 Now, I have to admit, I was kind of glad because I didn't want to do aerobics,
00:30:21.900 and I might have felt pressured to do it if, like, men were invited.
00:30:24.780 So I wasn't.
00:30:25.300 So it was very easy.
00:30:27.540 All right.
00:30:28.020 One more Sandra Day O'Connor story.
00:30:30.140 So I was Solicitor General five and a half years.
00:30:33.600 We ended up being very fortunate.
00:30:35.280 We had some really big constitutional law cases that just through serendipity came down the road,
00:30:42.140 and we ended up litigating, and we won most of them.
00:30:45.600 One of the biggest cases was a case called Van Orden v. Perry.
00:30:50.460 Now, Van Orden v. Perry was a challenge to the Ten Commandments monument outside of the Texas state capitol.
00:30:58.340 And let me set a little bit of context for it because it's relevant to O'Connor.
00:31:01.680 It's relevant to Rehnquist and the court.
00:31:04.140 So this is the mid-2000s.
00:31:07.120 There had been litigation all over the country challenging the public display of Ten Commandments all over the country.
00:31:11.940 The history of the Texas Ten Commandments monument, it was erected in 1961.
00:31:19.900 But its history actually goes back to the 1950s.
00:31:22.600 In the 1950s, there was a Minnesota state judge named E.J.
00:31:26.380 Rugemeyer, who in the 1950s was upset about the diminishing morals of the youth in America.
00:31:33.500 By the way, pause and think.
00:31:34.560 In the 1950s, he was worried about youth morals.
00:31:36.760 Think about today.
00:31:37.620 Yeah.
00:31:37.960 Like, holy cow, in 80 years it hadn't gotten better.
00:31:40.540 Yeah.
00:31:41.700 And he came up with the idea to help the morals of the youth in America,
00:31:46.160 let's publicly display the Ten Commandments in public areas across the nation.
00:31:50.400 And he went to a public service organization, the Fraternal Order of Eagles,
00:31:54.420 sort of like the Rotary Club or Kiwanis Club.
00:31:56.720 He said, hey, what do y'all think of this idea?
00:31:58.560 And they said, great idea.
00:32:00.440 We're all for it.
00:32:02.140 All right.
00:32:02.440 Now, Ben, this is where the story takes a weird turn.
00:32:06.120 This is exactly coterminous with the release of Cecil B. DeMille's movie, The Ten Commandments.
00:32:13.300 No way.
00:32:13.740 You know, Charlton Heston comes down from Mount Sinai carrying the Ten Commandments.
00:32:18.240 And Cecil B. DeMille was a larger-than-life Hollywood character.
00:32:22.100 And DeMille gets wind of this.
00:32:25.240 And he was thinking like a Hollywood producer.
00:32:28.160 He's like, hey, this is a great idea.
00:32:29.360 But I don't want a piece of paper on a frame posted on the wall.
00:32:33.220 If you're going to erect this, I want big, honking, granite Ten Commandments monuments,
00:32:40.880 just like I'm going to have Charlton Heston coming down the mountain with.
00:32:44.720 There are dozens of what are called Eagles monuments all over the country.
00:32:49.760 And they're all identical.
00:32:50.780 Texas, it's six foot three inches tall, three foot six inches wide.
00:32:54.800 It is red granite.
00:32:56.000 It looks exactly like the tablets that Charlton Heston carried.
00:33:01.060 And actually, I'm going to take a brief aside and say, if you ever are arguing a case in court,
00:33:08.640 since you're not a lawyer, something would have to go terribly wrong for you to be arguing a case in court.
00:33:12.580 But if you're convicted of murder and you're defending yourself, the advice that I have given lawyers is never, ever, ever try to be funny.
00:33:23.820 It is the province of judges to be funny.
00:33:26.360 It is not the province of lawyers.
00:33:27.680 Now, that is excellent advice, but I will tell you, I have twice in my career broken that advice, and I've been very lucky.
00:33:34.920 The gods of litigation have spared me my just desserts both times.
00:33:39.200 When I was arguing the defense of the Texas Ten Commandments case in the Fifth Circuit Court of Appeals,
00:33:45.880 the process that the Eagles used to develop the text of the Ten Commandments, there are differences across denominations.
00:33:54.460 And so what the Eagles did is they brought together a committee that consisted of a pastor, a priest, and a rabbi.
00:34:02.000 So at oral argument, I said, this was drafted by a pastor, a priest, and a rabbi.
00:34:06.380 And one of the judges on the Fifth Circuit, Judge Prado, leans forward and says,
00:34:10.500 Counsel, that sounds like the beginning of a joke.
00:34:12.440 And I immediately said, yes, Your Honor, but nobody walked into a bar.
00:34:17.100 And miraculously, the judges took pity on me and laughed.
00:34:21.840 It was stupid, but I was grateful for their mercy.
00:34:25.380 We're in front of the U.S. Supreme Court on the Texas Ten Commandments monument.
00:34:30.800 And at the time, there had been dozens of cases challenging Ten Commandments monuments.
00:34:36.260 Almost all of the monuments had lost.
00:34:38.380 The weight of the case law was headed very significantly against the public display of the Ten Commandments.
00:34:44.580 As the case was being appealed, so we had won in the Fifth Circuit Court of Appeals.
00:34:51.440 The plaintiff, a guy named Thomas Van Orden, who was an atheist, he was a homeless man,
00:34:55.960 who had walked past the monument, was offended by it, and filed a lawsuit seeking to tear it down.
00:35:01.620 He filed a cert petition asking the Supreme Court to take the case.
00:35:04.420 Now, normally, if you've won, and the other side appeals to the Supreme Court, what you do is you fight against it.
00:35:08.940 You say, no, no, don't take this case, there is no split of authority, it's not consequential, you don't need this, say no,
00:35:14.960 because if they say no, you've won.
00:35:17.120 Here was the problem.
00:35:18.280 There was an enormous split of authority.
00:35:20.340 I thought the court was going to take one of these cases very, very soon.
00:35:24.180 And we might have won a pyrrhic victory of a short-term victory,
00:35:27.680 but if a bad decision came down to the Supreme Court, we'd lose in the long term and lose our monument.
00:35:32.180 So I went to my boss, Greg Abbott, and I said, General, I think we should do something that's called acquiescing in cert,
00:35:39.580 which is we should agree, yes, Supreme Court, you should take this case.
00:35:44.960 And we drafted a brief in opposition where we said there is a split of authority, it is real, it is deep, it is wide, it is significant.
00:35:52.620 And what we wrote in the brief was, if the court is inclined to resolve this issue,
00:36:01.400 this case presents the single best fact pattern to uphold a permissible display of the Ten Commandments.
00:36:09.500 It was very risky, because if the court took the case and we lost, everyone would pillory, both Abbott and me,
00:36:16.200 you idiots, ask them to take this case and then you get your butt kicked.
00:36:19.280 Well, it ended up, we were right, they were going to take a case, they took the Texas case,
00:36:24.700 and they took a case out of Kentucky.
00:36:26.640 They took them both, and they scheduled them for argument on the same day.
00:36:31.600 As we're preparing the case, Abbott, my boss, who was attorney general, he told me when he started,
00:36:36.960 he said, look, I want to argue one Supreme Court case while I'm AG, and let me know which one I should do.
00:36:42.340 And so when this case was granted, I said, General, this is the one you should do.
00:36:45.820 It's a discreet issue of law, it's incredibly important.
00:36:49.280 He spent two months preparing for the argument.
00:36:52.960 I put together some moot courts.
00:36:54.260 I did a moot court in D.C. with a murderer's row of Supreme Court advocates.
00:36:59.540 They had collectively over 100 oral arguments between them, and they just beat him senseless.
00:37:06.820 I actually felt really nervous.
00:37:08.020 Like, when you put your boss in front of a moot that, like, pounds him senseless,
00:37:11.400 you're like, General, I hope that was productive.
00:37:15.420 Yeah.
00:37:15.880 Please tell me I'm not unemployed.
00:37:17.360 Yeah, yeah.
00:37:17.720 Please tell me I'm not getting my walk-in papers today.
00:37:19.760 But look, if you do it right, you want the moot to be harder than the actual argument.
00:37:22.940 So he went through, did several moots, he was ready for it.
00:37:25.560 And in the brief, I told him, I said, okay, General, I've got a plan.
00:37:28.420 So for about three decades, Sandra Day O'Connor was the deciding vote on almost every religious
00:37:36.360 liberty establishment clause case in the country.
00:37:38.640 And I read every opinion she'd written over and over and over again.
00:37:44.580 And I told my team as we're drafting the brief, I said, I want us to swim in Sandra Day O'Connor's
00:37:51.980 establishment clause jurisprudence.
00:37:53.840 I want this to embody everything she's ever thought or said about the First Amendment.
00:38:00.280 And in fact, I told my lawyers, I said, I want the most frequent words in the brief to be O'Connor,
00:38:05.740 I want them to occur more frequently than and or the.
00:38:10.280 And one of my lawyers said, well, Ted, is it possible to be too obsequious to Justice O'Connor
00:38:16.960 in this brief?
00:38:17.500 I said, no.
00:38:19.120 If we can put an oil portrait of Sandra Day O'Connor on the cover of our brief, we should
00:38:25.160 do so.
00:38:26.660 And again, I was, you know, probably I was a cocky 34, 35 year old.
00:38:31.720 I went to Abbott and I said, General, we are, we're living in her psyche.
00:38:37.120 This brief is exactly what Sandra Day O'Connor thinks.
00:38:41.980 Well, at the oral argument, I'm sorry to say we missed horribly.
00:38:47.660 She was utterly unpersuaded.
00:38:49.640 She voted to strike down the Texas Ten Commandments monument.
00:38:53.180 Now, here's where Supreme Court arguments are weird.
00:38:54.800 Every argument we'd aimed at Sandra Day O'Connor missed her, but bizarrely enough, struck Steve
00:39:02.760 Breyer.
00:39:03.460 Wow.
00:39:04.360 Bill Clinton appointee, relatively liberal justice.
00:39:08.600 And the two cases, I told you there was Kentucky and Texas.
00:39:13.100 Four justices voted to strike down both monuments.
00:39:16.280 Four justices voted to uphold both monuments.
00:39:18.460 Steve Breyer voted to strike down Kentucky and to uphold Texas, which, among other things,
00:39:27.920 was a vindication of if we hadn't acquiesced in cert, the only opinion would have been Kentucky
00:39:32.560 and it would have been devastating for Ten Commandments monuments across the country.
00:39:36.140 There was also a really nice kind of personal vindication in this.
00:39:39.520 So, Chief Justice Rehnquist had been an original dissenter in a case called Stone v. Graham,
00:39:47.980 which struck down the display of the Ten Commandments in public schools across the country.
00:39:52.160 And he had dissented.
00:39:53.120 He said, this is not the First Amendment.
00:39:54.660 This is not right.
00:39:56.820 Van Orden v. Perry, Chief Justice Rehnquist wrote the plurality opinion for the court,
00:40:03.340 upholding Texas's display of the Ten Commandments.
00:40:06.760 It was the very last opinion Chief Justice Rehnquist ever wrote, and he passed away later that summer.
00:40:12.740 And so, as his former clerk, it was really cool to have been part of a case where he was able to vindicate a view
00:40:21.680 he had articulated two decades earlier.
00:40:24.280 And Sandra Day O'Connor, when it came to the standards, we didn't meet her standards,
00:40:29.000 but miraculously enough, Steve Breyer liked what we had to say, and so we entered.
00:40:32.480 And, by the way, since then, the McCreary case out of Kentucky has proven to be a very unimportant precedent.
00:40:38.560 It is rarely cited.
00:40:40.220 And the Van Orden case changed the entire direction of case law so that Ten Commandments displays are now routinely upheld.
00:40:48.020 This is why I love doing this show.
00:40:49.460 It's so fun to get to talk about this.
00:40:51.260 And Sandra Day O'Connor, the first woman of the Supreme Court died, passed away at the age of 93.
00:40:56.380 Senator, always a pleasure.
00:40:57.620 Don't forget, download this podcast, and make sure you hit that subscribe auto-download button as we do this Monday, Wednesday, Friday.
00:41:02.920 A best of what you may have missed during the week on Saturdays.
00:41:06.080 And many of you may not know this.
00:41:07.460 The algorithms changed this week on Apple.
00:41:10.800 Make sure you hit that follow button and check to see because they have changed the algorithms
00:41:16.360 where if you haven't downloaded an episode in X number of days, apparently it can stop doing it for you.
00:41:21.680 So make sure you hit that follow button again and check it often.
00:41:24.940 The Senator and I will see you back here on Wednesday.
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