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The Day the U.S. Supreme Court Shut Down
Tony Mauro (American Lawyer Media) --
Message 16359776
At his office in the Justice Department, Solicitor General Theodore Olson had just signed off on a brief in a pending tax case. At the U.S. Supreme Court, Chief Justice William Rehnquist was presiding over what could have been a contentious meeting of the U.S. Judicial Conference. Downstairs, the clerk's office was settling in for a routine day, including the handling of a last-minute death row appeal from Texas.
Within moments on Sept. 11, the Supreme Court community, which likes to think it stands apart from the rest of Washington, D.C., was swept inexorably into the awful vortex of the nation's day of terror.
The institution shut down, with Court police scrambling to the rooftop armed with shotguns to face off against threats unknown. The Judicial Conference meeting was ended abruptly, and a death penalty lawyer in Texas was left frantically calling the clerk's office to no avail. The governor of Texas finally stayed the execution because of the high court's unavailability.
But no one became more tragically involved than the solicitor general himself. His wife of five years, Barbara, the outspoken conservative commentator, was on the American Airlines flight that crashed into the Pentagon.
It was just as the World Trade Center attacks were unfolding that someone in the solicitor general's office took a phone call from Barbara Olson. Ted Olson's longtime assistant, Helen Voss, raced into the SG's office to tell him that Barbara was on the line, sounding panicked. He picked up the phone and exclaimed, "What, you've been hijacked?" She was calling on her cell phone from aboard the jet, which had just left Dulles Airport. Voss says, "My heart sank." The call ended abruptly, but then Barbara called again, reportedly asking her husband, "What should I tell the pilot?" It was a comment that friends have taken as a sign that she was characteristically trying to find a solution to the crisis. The pilot, along with passengers, had apparently been herded into the back of the plane.
Olson reported the conversation to the Justice Department's command center. After the second call ended, Olson and Voss turned on a television set in his office, unsure what else could be done.
When news came of a plane crashing into the Pentagon, Olson turned to Voss and said, "That's Barbara's plane." Voss adds, "Then he said something I will not repeat." Soon after, Olson headed home to Great Falls, Va.
Meanwhile, the Justice Department building was being evacuated, leaving many of Olson's colleagues in the tight-knit solicitor general's office initially unaware that their boss had been struck by tragedy.
"We had no inkling at first," says another lawyer in the office. "We were just coming up to the time when we thought we would be gathering for a joyous occasion -- former SG] Seth Waxman's son's bar mitzvah. Now this. We will be gathering for a memorial service. It's the cycle of life."
Waxman's son Ethan will be bar mitzvahed on Oct. 6. Now at Wilmer, Cutler & Pickering, Waxman says he had talked to Olson the night before. "The last thing I said to him was to be sure and give Barbara a hug for me," Waxman recalls.
Among Olson's network of friends, word spread quickly that his wife had likely perished. Virginia Lamp Thomas got a call from a mutual friend as she was driving in Virginia. She returned home and collected her husband, Justice Clarence Thomas, and they headed immediately for Olson's house. "We wanted to hold him," says Virginia Thomas. She and Justice Thomas, joined by his adopted grandnephew, Mark, stayed with Olson at his home for hours.
Justice Thomas is known as an intensely loyal friend who will drop everything in times of need. "They are one of our closest sets of friends, definitely on the A-list," says Virginia Thomas.
They came to know Barbara through Ted, just before Thomas was appointed to the high court. She fast became one of Thomas' most ardent supporters. "We didn't know her all that well at the time," Virginia Thomas recalls, but around the time of the confirmation, "she was in constant battle mode."
Soon joining Olson at his house was former Solicitor General Kenneth Starr, who had known Barbara Olson since before she met Ted Olson. "Ted was remarkably strong," says Starr. "He wants to talk about Barbara in a community, so he has welcomed friends, remembering the wonderful occasions they had together."
Also converging on Olson's house were CNN correspondent Tim O'Brien and his wife, Petie, also longtime friends. "There was no choice. You just go, even though there is nothing you can really say. Your presence is what counts," says O'Brien.
Friends who were on hand or helping with arrangements for a memorial service include Alice Starr, wife of Kenneth Starr, and Mary Ellen Bork, wife of former SG Robert Bork. Members of an informal monthly lunch group that included Barbara Olson, Virginia Thomas, and several Republican and Capitol Hill staffers also gathered quickly. At press time, plans for a memorial service in Arlington, Va., included remarks by Thomas, Bork, and J. Michael Luttig, a judge in the 4th U.S. Circuit Court of Appeals. Back at the Supreme Court, well-rehearsed security plans were being executed, with armed Court police manning several stations around the building.
Court officials will not say how many justices other than Rehnquist were in the building when it was evacuated, though there were apparently more than one. Under emergency circumstances, justices, along with leaders of Congress and Cabinet members, are escorted to one of several secure locations -- some near the Capitol, some far -- but it could not be ascertained how many justices participated last week.
The justices have long posed something of a security nightmare. Unlike Cabinet and congressional leadership posts that can be filled by others in an emergency, as one expert put it, there are no assistant justices. "You have to wrap them all up together," this expert says. But that is notoriously difficult with nine justices who may be scattered across the world, especially during the summer recess. Justices who leave Washington are supposed to alert U.S. marshals or embassies, but they do not always do so.
The Supreme Court police force, now numbering more than 100, has been beefed up in recent years and given improved equipment, but other security measures have been resisted. A plan to ring the Court perimeter with bollards -- posts that would impede an attack from a truck bomb -- was turned down by the justices, concerned that it would convey an image of inaccessibility. And although there is legislative authority for all nine justices to be driven to and from work, that has never been exercised. Several justices drive themselves, though they have the option to call on a small pool of government-owned cars with drivers.
Meanwhile, as Sept. 11 wore on, the evacuation of the Court was having practical consequences as far away as Texas.
It was the scheduled day of execution for Jeffery Eugene Tucker, convicted of executing an elderly man in Granbury, Texas, in 1988. Tucker's lawyer, Robert Owen of Austin's Schonemann, Rountree & Owen, had been in touch with the Supreme Court clerk's office the week before, to alert Court officials that if the Texas Court of Criminal Appeals did not grant a stay he would be filing a last-minute appeal with the Supreme Court. He sent his Texas filings ahead to the Court for distribution to the justices. On the morning of Sept 11, Owen flew to Houston to be closer to the Huntsville execution site, ready to file with the high court if necessary.
When he heard about the terrorist attacks, Owen began calling the Court clerk's office to be sure it would be open. There was no answer. "I really had a moment of cold, sweaty terror," says Owen. "I thought, what if I fax an appeal and nobody is there?"
When Owen learned through news reports that the Court had officially closed, he called the Texas attorney general's office, asking it to join him in seeking a delay in the execution. "They were sympathetic but noncommittal," he says. He then called the Texas Court of Criminal Appeals, telling an official there, "I can't go anywhere else" if a stay is not granted.
But then word came that Texas Gov. Rick Perry had, on his own authority, granted a 30-day stay in Tucker's execution because the high court was closed. Perry said in a statement that he wanted to ensure that Tucker "has full and complete access to the court system."
It was Perry's first -- and Owen thinks last -- stay of execution since taking office after George W. Bush's election as president. "Under the remarkable circumstances of that day, I was gratified but not surprised," says Owen. "There are a lot of moments like this where people do unexpected things."
As things returned to normal at the Court by week's end, talk in Washington turned to whether the nation should be on a war footing, and what that might mean for civil liberties.
The fate of civil liberties during wartime was the subject of Rehnquist's most recent book, "All the Laws but One." Rehnquist's historical books have an uncanny way of predicting modern events. Not long before the impeachment of President Bill Clinton, Rehnquist wrote "Grand Inquests," about past high-level impeachments. His latest work, begun a year ago, is a look at the Hayes-Tilden election of 1876 -- a presidential election that, like the one that unfolded a few months later, ended up involving the Supreme Court.
STOCK OPTIONS
Justice Sandra Day O'Connor's wide-ranging stock portfolio continues to cause her recusal problems. A case now before a federal appeals court mentions O'Connor's stock ownership as a factor that could prevent the Court, for the second time in two years, from resolving a federal court jurisdiction issue that business litigants would sorely like the Court to decide.
In April 2000, the Court divided 4-4 in the case of Free v. Abbott Laboratories Inc., with O'Connor recusing, apparently because of her ownership of stock in Bristol-Myers Squibb Co., another pharmaceutical company named alongside Abbott. When the court is evenly divided, the lower court ruling stands, but sets no nationwide precedent.
The issue comes up often in class actions: whether federal courts have jurisdiction when some of the class members fall below the minimum damage requirement. Circuit courts have split sharply on the question, each court giving different weight to a Supreme Court precedent, Zahn v. International Paper Co., and to a federal statute that some say overruled it. When O'Connor recused in Free and the rest of the Court split 4-4, business litigators hoped another case would enable the justices to decide the issue shortly.
A recent decision from the 4th U.S. Circuit Court of Appeals seemed to be the ideal case: Rosmer v. Pfizer, a class action alleging damages suffered by class members who took a Pfizer antibiotic. Some of the class members claim harm amounting to less than $75,000, the amount needed for federal court jurisdiction in individual cases. On Aug. 23, the 4th Circuit ruled in favor of Pfizer, which sought federal court jurisdiction over the entire class. The appeals panel split 2-1. Lawyers for the class want the case sent back to state court.
But there's a small problem in seeking review from the Supreme Court: O'Connor owns Pfizer stock, making it highly likely that she would recuse and the Supreme Court would rule 4-4 again, just as inconclusively as it did in Free. As a result, lawyers for the class are seeking rehearing or en banc review from the 4th Circuit.
"Certiorari review may in this case be unsuitable" because of O'Connor's stock ownership, according to the petition filed with the 4th Circuit by two South Carolina law firms: Speights & Runyan of Hampton and Hammer, Hammer, Carrigg & Potterfield of Columbia. The petition cites four instances since 1994 in which O'Connor has bowed out of cases with Pfizer as a party. Because of the likely recusal, the petition argues that en banc review is necessary to "maintain and secure uniformity" in the 4th Circuit's determination of the issue.
Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. |
