Out of Order

by Sandra Day O'Connor

  When morning arguments conclude, the Justices gather for another tradition, one less formal and more necessary: lunch. Each day during which the Court hears argument, the Justices convene in the Justices’ dining room at approximately noon to share a meal and conversation. By rule, the work of the Court is not to be discussed. The meal is meant to be a respite from the intense pace of the Court’s business and an opportunity for colleagues and friends to reconnect. In keeping with this informality, Justices do not sit in order of seniority during lunch. However, another custom governs the seating chart. Upon joining the Court, each Justice is assigned the lunch seat of the Justice he or she replaced. In this way, a Justice’s perspective is passed on from successor to successor—his perspective of the dining room.

  * * *

  LUNCH ASIDE, BY LONG-standing tradition the principle of judicial seniority plays an active role in the organization and operation of the Supreme Court and, indeed, the entire federal judiciary. Thus, when the Justices sit on the bench, they do so in order of seniority, with the Chief Justice at the center, presiding over the Court’s proceedings. The Justices are similarly organized by seniority in virtually all of the public ceremonies in which they participate.

  The seniority system has important, substantive impacts on the Court’s business. For example, it is the most senior Justice in the majority who assigns the responsibility of writing an opinion for the Court. Similarly, when the Justices meet in private conference to discuss cases, their seniority dictates the order in which they comment and vote on the cases before the Court. Seniority confers greater stature in public rituals and the opportunity for greater influence over the Court’s work.

  Conversely, by tradition the Court’s most junior Justice inherits a range of duties that might fittingly be described as undesirable. For example, the Justices depart the courtroom in order of seniority, leaving the junior Justice at the rear. He or she is also the last in line to enter when Justices attend the President’s annual State of the Union address, presidential inaugurations, and other ceremonies. Most notably, the junior Justice serves as the link between the confidential world of the Conference—attended only by the nine sitting members of the Court—and the world of the Court beyond the conference room walls. The two most significant duties associated with this role are answering the door when Court personnel knock and delivering outgoing messages from the Justices to attendants waiting beyond the door.

  When I was confirmed, I replaced Justice Stevens as the most junior Justice on the Court. There was some discussion, I learned, over whether I would be offended as a woman by being delegated such unglamorous duties. There need not have been any concern, however. Justice Stevens reportedly spoke up and stated that he believed I would not want to be treated differently from any other Justice. He was right, of course. I was more than happy to continue the tradition. I served as the doorkeeper for five years until Justice Scalia’s appointment to the Court in 1986 ultimately gave me a reprieve, as he assumed those duties.

  Justices at President Clinton’s State of the Union Address in January 1998. (Photograph Credit 8.7)

  The most junior Justice also has the responsibility of serving on the Court’s cafeteria committee. In this capacity, Justice Kagan, currently the most junior Justice on the Court, recently introduced frozen yogurt and pretzels to the Supreme Court cafeteria.

  THESE MYRIAD CUSTOMS OFFER insight into how the Court has evolved from its early days as a neglected institution with little work and no home. The Supreme Court is a tradition-bound institution—and its many traditions shape both the Court’s day-to-day operations and its broader role in our society.

  SOME LAUGHS ON THE BENCH

  THE CORRIDORS AND CHAMBERS AT THE SUPREME COURT ARE usually exceedingly quiet. Justice Oliver Wendell Holmes Jr. once wrote that the Court has “the quiet of a storm center.”1 The Court’s chambers are occupied by the Justices and their law clerks, all of them reading and doing research about difficult issues in cases they are trying to resolve. Nevertheless, the studious and serious environment at the Court is punctuated by humor and the occasional jest. All of us enjoy a good joke and a hearty laugh—and Supreme Court Justices are no exception.

  SOMETIMES THE LAUGHS TAKE place in the courtroom during the rapid-fire exchanges of oral argument. In 2005, one law professor combed through the seventy-five oral argument transcripts from the October 2004 Term. The professor set about “calculat[ing] each Justice’s ‘Laughter Episodes Instigated Per Argument Average,’ or LEIPAA, which represents the total number of laughter episodes instigated over the term divided by the number of oral arguments attended over the course of the term.”2 What were his findings? Justice Antonin Scalia apparently “won the competition by a landslide,” generating seventy-seven LEIPAAs that year.3 He was followed by Justice Stephen Breyer with forty-five instances of laughter. It appears that I came in short at seventh place!

  The New York Times did a humorous piece on the “study” designating Justice Scalia the title of “funniest Justice.”4 Justice Ruth Bader Ginsburg has said that on certain occasions Justice Scalia would “say something that was so outrageous or so funny that I had to pinch myself so I wouldn’t laugh out loud in the courtroom.”5

  Justice Scalia’s chief competitor for the title of “funniest Justice,” Justice Breyer, drew particularly “raucous laughter and howls” for a remark he made in a Fourth Amendment case. The issue before the Court involved an intrusive search of a student conducted by school officials who suspected that the student was carrying drugs in her clothes.6 The oral argument saw the Justices grappling with the difficult issue of whether the search was justified.

  Justice O’Connor chats with Justice Breyer prior to President George W. Bush’s first inauguration, in 2001. (Photograph Credit 9.1)

  In the midst of the argument, Justice Breyer remarked: “In my experience when I was eight or ten or twelve years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear—”

  Flustered by the ensuing laughter, Justice Breyer quickly retracted: “Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know.”

  Even our current Chief Justice, John G. Roberts Jr., has garnered attention for his “light, witty touch” at oral argument.7 Chief Justice Roberts presided over one of his first oral argument sessions on October 31, 2005, which fell on Halloween. It was a difficult case on state sovereign immunity in the bankruptcy context. Suddenly, a lightbulb exploded above the Justices in the middle of a comment by Justice Ginsburg.

  “I think we’re … I think it’s safe. It’s a trick they play on new chief justices all the time,” the Chief joked.

  “Happy Halloween,” replied Justice Scalia.

  “We’re even more in the dark now than before,” the Chief Justice deadpanned. Justice Ginsburg nonetheless proceeded with her comment as if nothing had happened.

  The attention to the Justices’ sense of humor has even extended to the judicial confirmation process. During the confirmation hearings for Elena Kagan, Senator Charles Schumer of New York touted Justice Kagan’s potential in this regard. Noting that “Justice Scalia gets the most laughs,” he praised the nominee: “If you get there, and I believe you will, you’re going to give him a run for his money.”8

  Some of the jokes at oral argument come from the advocates themselves. Such attempts at humor can hit or miss. In the famous abortion case Roe v. Wade, defendant Henry Wade’s lawyer, an assistant attorney general from the state of Texas, opened his argument with a joke that fell flat. He began: “Mr. Chief Justice and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” The courtroom remained silent, a cool reminder that cracking jokes during argument can be a precarious endeavor.9 I’m sure that lawyer thought twice before attempting another joke at his next argument.

  ONE FREQUENT�
�AND INADVERTENT—source of hilarity during oral argument arises when advocates, while fielding tough questions from the panel of nine Justices, mix up the Justices. Poor Justice Souter was called the wrong name on several occasions. At an argument in 2004, one of my former law clerks, Sri Srinivasan, argued before the Court on behalf of the United States. Sri accidentally referred to Justice Souter as “Justice Scalia” and quickly apologized. Souter did not miss a beat and responded, “Thank you, but apologize to him.” In 2007, a lawyer again referred to Souter by the wrong name—this time, as “Justice Ginsburg.” Souter replied, again with unflappable calm, “I’m Justice Souter.… You’re very flattering.”10

  It seems that the mix-ups plagued Justice Souter even outside the Supreme Court. Justice Breyer and his wife, Joanna, were at their cabin in New Hampshire one year. A fellow pulled over in a pickup with a rifle on a rack in the truck and asked to talk to the Justice about “what’s going on in Washington about guns.” After Justice Breyer informed the man that it would be better to send any information to him by mail, the man thanked him: “Good to meet you, Justice Souter.” When Souter heard the story, he said that it could only have happened in his home state of New Hampshire. Soon afterward, however, Souter found himself in Massachusetts. A man on the street approached to shake his hand, exclaiming, “Mom, Mom, come over and shake hands with Justice Breyer. You know, he’s the one from New Hampshire, the one you like!”

  In another incident, Justice Souter was having dinner in Massachusetts when someone approached him to ask how he was enjoying his “first year” on the Supreme Court. When Souter realized that he was being confused with Justice Breyer, who had taught at Harvard Law School and served as a federal judge in Boston, he decided to play along so as not to embarrass the stranger. The best thing about his year on the Court, he said, “was getting to know David Souter. He’s one heck of a guy.”

  INDEED, PEOPLE SOMETIMES FORGET that the Justices are good friends as well as professional colleagues—and every friendship endures the occasional ribbing. Even Justice Story once joked about Chief Justice Marshall’s penchant for wine. In an interview with Josiah Quincy about the Court, Justice Story reportedly quipped:

  [The Justices’] intercourse is perfectly familiar and unrestrained, and our social hours, when undisturbed with the labors of law, are passed in gay and frank conversation.… We are great ascetics, and even deny ourselves wine, except in wet weather. What I say about the wine, sir, gives you our rule: but it does sometimes happen that the Chief Justice will say to me, when the cloth is removed, “Brother Story, step to the window and see if it does not look like rain.” And if I tell him in reply that the sun is shining brightly, Justice Marshall will sometimes reply, “all the better; for our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.” You know that the Chief was brought up on Federalism and Madeira, and he is not the man to outgrow his early prejudices.11

  Meanwhile, Justice Harry Blackmun had some fun at Justice William O. Douglas’s expense during the Vietnam War. Douglas was convinced that FBI director J. Edgar Hoover had installed some kind of eavesdropping device in the Court’s Conference Room and he repeatedly called for having the room swept for the presence of electronic bugs. The other Justices brushed him off as a little paranoid, until one day when they heard a high-pitched electronic beep coming from someplace in the room. Justice Douglas slammed one hand down on the table and said he had known it all along; the sound was obviously coming from a malfunctioning bug planted somewhere in the room, and now maybe they’d agree that the place had to be swept. He had his way, and the premises got a meticulous examination. But no bug or electronic irregularity turned up. When the result was reported, Justice Blackmun was seen to be smiling quietly, as the hand cradling his head touched the hearing aid placed unobtrusively in his ear. After my arrival at the Court in 1981, I too remember hearing the faint noises of Blackmun’s hearing aid during Conference and wondering what the sounds were. By that time, I suppose, my colleagues had gotten used to it.

  Justice Hugo Black once poked fun at Chief Justice Warren Burger’s eagerness to improve the lighting in the Justices’ chambers. The Chief apparently thought there would be no enthusiasm for the change unless he could provide a convincing demonstration of more effective lighting. During one of the Court’s longer breaks between weeks of oral arguments, the Chief Justice had fluorescent lighting panels installed in the ceilings of his own chambers and in the Justices’ Conference Room. With the new light panels in place, he invited the other Justices to come in and admire the display. The story I heard was that Justice Black duly appeared, said nothing, and looked at Chief Justice Burger’s expectant face as he prepared to leave. Justice Black’s head shook slightly and he spoke in an exaggerated, quavering voice. “Oh, Mr. Chief Justice,” said the man who had once told President Harry Truman to take his hands off the nation’s steel mills, and who had stopped President Nixon’s attempt to suppress the Pentagon Papers, “a-a-all these changes … a-a-all these changes!”

  As a Supreme Court Justice, you spend a lot of time with the same eight people over the years. When I announced my intent to retire in 2005, the composition of the Court had not changed for eleven years. Over those years, I certainly got well-acquainted with the lighter side of my colleagues. I often think of Justice Thurgood Marshall’s very good sense of humor. He was a fine raconteur. He once told me a story about meeting Britain’s Prince Philip in Kenya during the celebrations after Jomo Kenyatta’s inauguration as prime minister in 1963. Prince Philip asked him, in his highbrow British accent, “And what do you do?” Justice Marshall responded that he was a lawyer. Prince Philip mumbled, “Hmph,” which the Justice took as mild disapproval. Justice Marshall immediately responded, “Would you like to know what I think of princes?” At that witty reply, Prince Philip smiled broadly and said, “Not at all. Let’s go have a drink.”

  While Justice Marshall’s sense of humor was widely known, I have found that few people know of how amusing Chief Justice Bill Rehnquist could be. Many people did not know of his relaxed side and his penchant for spoofs, skits, and contests of all stripes.12 There are some comical photographs of him from his days as a law clerk at the Court in 1952—smoking and drinking at his desk and delivering remarks as his fellow clerk C. George Niebank Jr. pretended to worship a fountain in one of the Supreme Court courtyards.13 A Gilbert & Sullivan aficionado, Chief Justice Rehnquist once composed a spoof of the opera The Mikado for his former boss, Justice Robert Jackson. The spoof included such lyrics as:

  Now Stanley Reed evades the ban

  In about the only way he can

  “Without a label

  No one is able

  To tell if I’m dissenting”14

  That was a tweak at Justice Stanley Reed, who reportedly had a reputation, whether fair or unfair, for opinions that did not make clear whether they reflected, concurred, or dissented from the judgment of the Court.

  Chief Justice Rehnquist’s penchant for music even made its way into the Court’s internal communications. On one occasion, the Chief circulated a draft opinion in Barnes v. Glen Theatre, Inc., a landmark decision from 1991 on whether nude dancing was protected under the First Amendment. The Chief enclosed a cover memorandum to me and the other Justices quoting from Johnny Mercer’s popular song, “Ac-cent-tchu-ate the Positive,” which topped the charts in 1945. His memorandum expressed his hope that the theme of his draft was a “very positive one” that could be summed up as follows: “Accentuate the positive / Eliminate the negative / Latch on to the affirmative / Don’t mess with Mr. In Between.”15

  Always a prankster, Rehnquist once played an elaborate April Fool’s Day joke on his predecessor as Chief Justice, Warren Burger. He had a street photographer offer tourists the opportunity to be photographed with a life-size cutout of Burger, and rode to Court that day with the enormous photograph, just to make sure Burger caught wind of the prank.16

/>   It seems that Rehnquist liked to poke fun at former Chief Justices. At a 1992 ceremony celebrating the issuance of a postal stamp picturing former Chief Justice Earl Warren, Rehnquist declared dryly, “Earl Warren was of Scandinavian descent on both sides of his family—his father immigrated from Norway and his mother immigrated from Sweden. I like to think of him as the first of the great Scandinavian-American Chief Justices.”17

  In fact, Rehnquist was the driving force behind one tradition that today remains a great source of entertainment at the Court—the “parody” that the law clerks put on for the Justices and staff at the end of each Term. As a new Justice, Rehnquist urged Chief Justice Burger to institute the annual show. Rehnquist even attempted to persuade the Supreme Court press corps to put on a show for the Justices as well, though without success.18 One journalist reportedly told him, “We don’t mind eating your food and drinking your wine, but we’re not trained monkeys.”19 The law clerks, however, obliged, and now every year, the law clerks lampoon the Justices and events of the Term. I distinctly recall the parody in 1994, when the movie Jurassic Park had been the previous summer’s blockbuster. Harry Blackmun, as played by a law clerk in the skit, exclaimed in one scene, “Dinosaurs! Yes, I remember dinosaurs. Warren [Burger] and I used to ride them when we were boys!”

  SERIOUS AND STRESSFUL THOUGH the job can be, it has always been important to the Justices that the law clerks enjoy a social and collegial environment. Another tradition has been for the law clerks to let loose at weekly basketball games in the Supreme Court’s gymnasium, located directly above the courtroom and affectionately known as the “highest court in the land.” Justice Byron White was known for joining the clerks for the afternoon games. To be sure, it was wonderful of Justice White to take the time to get to know some of the law clerks better. But Justice White also had a fierce competitive streak. One day, Justice White swung his arm back and accidentally hit the Adam’s apple of a hapless young clerk, who collapsed and passed out. White picked him up, looked at him, and said, “You’re all right, aren’t you?” “Yes, sir,” came the feeble response, to which White said, “Well, then get on with the game!”