Sandra Day O'Connor

Justice O'Connor's announcement last Friday of her retirement was surprising and expected. The last time I saw her, the morning of the Grokster argument (March 29), she had moved out of her usual chambers into much smaller chambers on the other side of the building. Her old chambers were on the left of the Court as you walk up the front steps and had a wonderful view of the Capitol. She could also see and hear protesters, who not infrequently gathered below. The Court is undergoing a modernization project, quadrant by quadrant, and her quadrant was first. I was told in early March by a relative of hers not to read "too much" into the move, but it was hard not to, especially as the new chambers are those for a retired Justice, the ones she will now occupy permanently.

She was, the day of the Grokster argument, as she always is: incredibly warm, gracious, and wanting to know the latest with you and your family. I worked for 12 years in DC, 8 of them in the legislative branch, and with some masterful politicians. In person, Justice O'Connor has an aura, an astonishing ability to connect on an intimate level that cannot be explained unless you experience it. Her love of people is genuine, her loyalty unflagging, and she is very direct: she says what she means and means what she says. She is also down to earth, as befits someone who grew up on a working ranch and who was cut no slack because she was a woman. An illustration: once, when I was working for the House IP subcommittee, my direct line rang: I answered the phone and heard a very recognizable voice on the other end: "Hello, Bill, this is Sandra. Are you free for dinner at the house Thursday with Craig and I?" The DC protocol for important people is to have their staff call for them: Justice O'Connor always called herself, and always referred to herself as Sandra.

Craig is Craig Joyce, an old friend (I was for a time co-author of a few editions of his casebook on copyright and he is the co-author with her of her latest book, the one I am reading in my blog photo). He is a close relative of the Justice's by marriage and once worked as an associate for John O'Connor in the latter's then Arizona law firm. (In 1978, the O'Connors set him up on a blind date with the woman who became his wife, Molly, a cousin of the Justice's; they have two children, Will and Matt.) The dinner the Justice had called me about consisted of her cooking dinner for Craig and I in her kitchen, she bedecked with an old apron. We had a small salad and then the main course, an enormous piece of salmon. I have been a strict vegetarian for over 30 years, but it was just the three of us, in her kitchen, and she was the cook. I ate every bit of it, but was the last to finish by an uncomfortable amount of time.

I don't know many who, in her position, would cook for lowly people like me. When Janet Reno was confirmed as Attorney General, she came over to the House Judiciary Committee and had a brown bag lunch just with staffers; that was a big deal to us, but she didn't make our lunches. Justice O'Connor is to me as perfect as human beings get: so warm you feel you are a close friend, brilliant, loyal, incredibly strong yet still caring, and always reaching out to opponents to try and find common ground. Before the Grokster argument, three times she mentioned to me how much Congress hated the Court, yet she had a short time before invited a group of House Republicans over to the Court for a private lunch to try and repair relations, a wonderful gesture, and one that would never have been initiated from the other direction.

Justice O'Connor's approach to the work of the Court was best summed up by Eugene Volokh, whom I met while he was an O'Connor clerk: "Justice O'Connor, a pragmatist, saw the work of the law as making law work." That approach angered the uber-ideological, those like Robert Bork, who view as apostates conservatives who don't put their private views into action on the Court (See the transcript of Bork's July 1, CNN interview.) Of course, Bork didn't make it on to the Court and O'Connor did; he should, but doesn't, see a lesson in that.

Being a pragmatist doesn't mean an absence of principle, as Judge Posner never tires of pointing out. And Justice O'Connor's dissents in Raich and Kelo certainly dispel any doubt that her principles are deeply conservative ones. (You can buy an SOC Kelo dissent t-shirt at cafepress.com). But she viewed her job as deciding the case before her; she didn't view the case as a vehicle for furthering a private philosophical view.

Much has been made in the press about Justice O'Connor's role as the swing vote, and there is no doubt she was in many case, but any real estimation of the number of times she was the "swing" might helpfully focus on those where her vote was in play, not just those where she was in the majority. One case where she was the decisive 5th vote was Sony. In a previous posting on June 1, I gave a look at the behind the scenes shift in votes in Sony, and there was one Justice and one Justice only I didn't name. Justice O'Connor was that Justice and she was, in Sony, the 5th vote that switched from Blackmun, making Stevens' opinion the new majority. Sony, then, is a case where she cast the decisive vote. And she stuck with Justice Stevens in Grokster, joining him in Breyer's concurring opinion.

I want to conclude though with more typical O'Connor opinions, those where she forged a 9-0 Court, in particular, Bonito Boats, Inc. v. Thundercraft Boats, 489 U.S. 141 (1989) and Feist Publications, Inc. v. Rural Telepone Services, 490 U.S. 340 (1990). Justice O'connor prided herself not for being the swing vote, but on her ability to forge a consensus. These two opinions, written a year apart and properly regarded as twins, express a coherent, principled, pragmatic view of how the intellectual property system should work, a view that is frequently overlooked. Both cases express the view that IP is a two-sided coin in which the Promotion of the Progress of Science can only go forward if the public domain is protected as well as content owners' rights. In Bonito Boats, the Court struck down an effort by the State of Florida to circumvent the lack of patent novelty by providing a mutant form of unfair competition protection. In Feist, the Court insisted that the originality requirement in copyright means something, and that facts really are free.

Justice O'Connor clearly saw that a balance was integral to our IP system. To her, this meant a balance by which an adequate amount of incentives are provided but not at the expense of a vigorous public domain. She saw her job as making that system work. Those of us who are non-ideological, precisely because we believe that the system can function properly only if both sides of the equation genuinely work and work together, have an extra reason to mourn her retirement.