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