Review of “Out of Order: Stories from The History of the Supreme Court” by Sandra Day O’Connor


Out of Order, by Sandra Day O’Connor, the first female justice of the Supreme Court of the United States, is an eclectic, somewhat uneven, collection of anecdotes.

At its best, the book features some incisive analyses of major constitutional cases. The author clearly has mastered her craft when it comes to explicating abstruse legal issues. An early chapter covers the history and development of the power relationship between the Court and the President with terse analyses of four seminal cases, from Marbury vs. Madison to Youngstown Sheet & Tube (the steel seizure case). O’Connor shines whenever she states the holding of an important case.

But the book is not pure history or pure law. It is anecdotal without an overriding sense of organization. It jumps from topic to topic, and not all the topics are particularly interesting. For example, it contains an entire chapter devoted to the various oaths (including full quotations of the oaths), judicial and patriotic, that justices take and have taken.

Sandra Day O'Connor taking the oath as an associate justice on Sept. 25, 1981.

Sandra Day O’Connor taking the oath as an associate justice on Sept. 25, 1981.

Nevertheless, it contains some interesting factoids about the current and previous Courts, such as: (1) written opinions were not required until 1834, during President Andrew Jackson’s administration; (2) the current Chief Justice, John Roberts, was the best oral arguer Justice O’Connor encountered in 25 years on the bench; (3) Justice Antony Scalia produces more laughter (by far) than any other justice; and (4) Justice Byron (“Whizzer”) White led the National Football League in rushing while attending law school. (He played with the NFL’s Pittsburgh Pirates (now the Steelers) during the 1938 season.)

The future Supreme Court Justice Byron White

The future Supreme Court Justice Byron White got the nickname “Whizzer” while playing for the University of Colorado at Boulder

The book also contains interesting descriptions of the tribulations of earlier justices, who had to “ride circuit,” (i.e., travel—usually by horseback– around the country and conduct trials) as part of their statutory duties. [Justice O’Connor doesn’t go into it, but many of the justices had to share not just rooms, as she notes, but even beds with other judges or attorneys. Abraham Lincoln got to be good friends with some of his “bedmates” from his (Eighth) circuit riding days!]

In addition, O’Connor’s draws some enlightening and engrossing portraits of earlier justices, in particular, James McReynolds and Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes Jr. before his career on the bench, as an officer in the Union Army’s 20th Massachusetts Voluntary Infantry

The future Supreme Court Justice Oliver Wendell Holmes Jr. as an officer in the Union Army’s 20th Massachusetts Voluntary Infantry

I listened to an audio version of the book rather than reading it. That may have made enduring the chapter on judicial oaths more tedious than it would have been in writing. The reader is Justice O’Connor herself. While that adds to the authenticity of the book, the Justice does not have an especially good speaking voice.

Because its organization is not linear, the book need not be read sequentially. Each chapter stands on its own, and can even be read – in a probable unintended play on title, out of order. Taken as a whole, it is a pleasant introduction to Supreme Court lore for those with no background in such matters. The Justice does not get into current controversial issues facing the Court.

For a more sophisticated collection of Supreme Court historical anecdotes, I would recommend The Nine, by Jeffrey Toobin, a large portion of which – ironically – focuses on the pivotal role of Sandra Day O’Connor in recent Court history (see our review, here.)

Rating: 3/5

Note: I listened to the unabridged audio version published by Random house Audio, 2013, on 6 compact discs.


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