This weekend when I was clearing out book shelves, trying to make room for new volumes, I discovered a little book about Arizona’s distinctive state Capitol and copper dome. I had bought it years ago when I was researching Sandra Day O’Connor. I believed her tenure as a state senator in the 1970s was critical to understanding the justice who so skillfully counted votes among the brethren, and I had gathered all I could find about Arizona state politics and the legislature during her time there. I somehow found even the architecture of the Capitol intriguing.

I thought I had cleared out all the Arizona works as I later acquired books on all things Italian for my Justice Scalia biography. This weekend, I discovered a few of those books still on my shelves, too. One that I knew I had resisted packing up was Luigi Barzini’s consummate work on Italians, whose sweep included the importance of spectacle and power of the family. Barzini offered many insights toward my subject and when I came across this line — “The vigorous passions of a turbulent and restless people are always ready to flare up unexpectedly like hot coals under the ashes” – it was only a question of where in American Original I’d use it.

Now, I am in the middle of researching a book using Justice Sonia Sotomayor’s life as the scaffolding of a broader story about Latinos and the law. This will not be a biography as the O’Connor and Scalia works were, so it is even more important for me to understand the parallels of her life and those of a people. My shelves are filling with volumes about Puerto Rican history, Latinos and the law, and nomination politics. Among my favorites so far, however, have been works of Esmeralda Santiago, a beautiful writer who was born in Puerto Rico and came here when she was thirteen.

I had not read Santiago before and I find her memoirs deeply moving, independent of anything related to my research. Santiago’s life story mirrors some of Sotomayor’s, including methods for catching up in school. Toward the end of When I Was Puerto Rican, Santiago reveals that as she tried to get used to life in Brooklyn, “Every day after school I went to the library and took out as many children’s books as I was allowed. I figured that if American children learned English through books, so could I, even if I was starting later. I studied the bright illustrations and learned the words for the unfamiliar objects of our new life in the United States: A is for Apple, B for Bear, C for Cabbage.”

Sonia Sotomayor was born in New York, yet as a child of Spanish-speaking parents, she similarly struggled with English. When Sotomayor hit a wall on language and literature at Princeton, she did what Santiago did. She turned to grammar books, vocabulary builders and the classics that other students had read when they were young. A grade-school chum of Sotomayor, also of Puerto Rican heritage, told me recently that the same was true for him. He put in the extra time in college to compensate and catch up. He said there really was no choice: you sought out what you needed or you wouldn’t move ahead.

Some of that holds true for an author: You read up. You learn all sorts of new things. And the discoveries keep you going.

Before Sandra Day O’Connor was a Supreme Court justice or even an Arizona state court judge, she was an elected legislator and often talked about women and political power. In the 1970s, when she was in her early 40s, O’Connor would echo anthropologist Margaret Mead, “If women want real power and change, they must run for public office and use the vote more intelligently.” Years later, as O’Connor was nearing the end of her 25 years on the bench, she wrote, “Power [is] the ability to do. For both men and women, the first step in getting power is to become visible to others – and then to put on an impressive show.”

Justice O’Connor turns 80 today. In the half-decade since her retirement from the Court she has continued to demonstrate her deep work ethic, bred on the Lazy B ranch, and the ability to put on “an impressive show.”

She is still going strong in her campaign to reform state judicial elections, minimize the effect of big money in races, and create more independent state courts. (Justice Ruth Bader Ginsburg recently endorsed this effort.) O’Connor’s long-planned civics website for students is up and running. I just took a look to see what was new. Under an item that said, “Justice O’Connor wants to hear about your budget priorities,” several students had written in this month, including Anthony B., age 7, of New York, who said: “i would spend more money on charity. i would save money by buying stuff I need and only need.”

O’Connor remains an advocate for Alzheimer’s research. Her husband, John, who was afflicted by the disease, died last November. And when she isn’t appearing at legal conferences, before university audiences or at congressional hearings, she is taking her show to David Letterman or Jon Stewart, trying to reach a wider audience.

I’ve continued to cross her path, and at the start of the term I was on a panel with her in Williamsburg. She said she believed the current Court was “dismantling” some of her past opinions, and I asked her how she felt about that.

“What would you feel?” she responded, in her tart, turn-the-tables way, but then she continued: “I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh dear.’ But life goes on. It’s not always positive.” Somehow, even at 80, Justice O’Connor — it seems to me — is finding ways to remain positive. Many Happy Returns, Justice O’Connor.

I know exactly where I was when I first saw the headline of an ABC news story earlier this month that said, “White House Prepares for the Possibility of Two Supreme Court Vacancies.” I was in the San Francisco radio studio of Ronn Owens about to go on the air to talk about Justice Scalia, the Citizens United case and current term. Owens said the ABC story had just appeared on-line that February 4 morning and predicted the retirement subject would draw calls. “Two vacancies?” I said doubtfully. “Really?” As people who have since read the posting by longtime ABC producer Ariane de Vogue know, it said: “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.”

Ariane’s post became part of a new round of speculation among those of us who would rather be first, than second, third, or really left in the dust, on a retirement story but who simply do not know the full intentions of these older justices. Justice Ginsburg has told me and others that she does not want to leave the Court in the next couple of years, and seeing how vigorously she approaches the job, I cannot believe she is seriously thinking of retiring. Yet she has twice battled serious cancer and will turn 77 in March. I believe she is healthy but I don’t know for certain — and the Ginsburg rumor is still going.

As I have previously written in these posts, I think Justice Stevens will retire at the end of this term. The question for me is: When would he announce it? He will turn 90 on April 20, and oral arguments for the term will be over at the end of April. Maybe he would choose then to let President Obama know. Maybe he would wait until the end of the term in June, when retiring justices used to do it.

The opportunity of a lifetime appointment to the Supreme Court doesn’t come around often for presidents, or for the reporters who cover it. Nomination stories become such big deals to us that I can say without much exaggeration that since I began writing about the Court in 1989, I can remember almost every minute of the days that we got a retirement announcement. Here, going back about a quarter-century, is when retiring justices told us when they were going:

June 17, 1986: Chief Justice Warren Burger publicly revealed his retirement, effective at the end of that current term. Burger had privately told President Reagan three weeks earlier, on May 27, that he would step down.
June 26, 1987:  Justice Lewis Powell announced his retirement on the last day of the annual term.
July 20, 1990: Justice William Brennan retired during a summer recess, after he had suffered a stroke.
June 27, 1991: Justice Thurgood Marshall announced his retirement on the last day of the term. At a news conference the next day, he answered a question about his health with memorable gruffness: “I’m getting old and falling apart.”
March 19, 1993: Justice Byron White wrote to President Clinton to let him know he would retire that summer. This was the earliest official notification in recent decades. White said he wanted Clinton to have plenty of time to choose his successor for the next term. (Clinton selected Ginsburg.)
April 6, 1994: Justice Harry Blackmun informed the White House he would retire at the end of the term.
July 1, 2005: A few days after the annual term ended, Justice Sandra Day sent a letter to President Bush saying she would retire. (I was finishing my manuscript of her biography at the time, and I really remember every moment of this astonishing day.) She said she needed to leave to care for her ailing husband but would not step down until her successor was named. It turned out she stayed on until January 2006, when Samuel Alito was sworn in.
September 3, 2005: Chief Justice William Rehnquist died in office, giving President Bush a second seat, along with O’Connor’s, to fill.
May 1, 2009: Justice David Souter sent a note to President Obama confirming that he was retiring, after news reports the previous night said Souter already had informally passed the word.

I received enough reaction from the post on that snowy February 10 regarding whether journalists should call law clerks for information that I have a sequel. (See “But Would the Supreme Court Law Clerk Have Taken My Call?”)

University of Texas Law Professor Scot Powe, who clerked for William O. Douglas during the 1970-71 term and whose latest book is The Supreme Court and The American Elite, told me that reporters called him on the direct line into his office at the Court. He was not sure how they got the number. Powe said the reporters sought clarification of an opinion, rather than gossip about behind-the-scenes maneuvering. He said he tried to help when he could, without compromising confidentiality. Other former clerks told me they might have taken a journalist’s call — not on the substance of cases but on some of the social dynamics at the Court, for example, from the clerks’ end-of-term skit or, more seriously, regarding ideological maneuverings by clerks. That latter theme of the late 1980s was brought out publicly by former law clerk Edward Lazarus (who worked for Harry Blackmun) in his book Closed Chambers. Some justices were furious about that 1998 book, which had the subtitle: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.

In my earlier post, I referred to memos filled with apprehension and anger over The Brethren by Bob Woodward and Scott Armstrong. That 1979 classic relied on scores of law clerks and five of the justices for inside information. I’ve collected other internal memos through my years of research that show how intensely justices act in response to any report that lifts the veil.

Sandra Day O’Connor, who served 1981-2006, was among those who reacted most negatively to disclosures. She took the lead with then-Chief Justice Rehnquist in 1990 to try to get retiring Justice William Brennan not to turn over files to researchers. Three years later, she and Rehnquist were among the most agitated when the papers of Thurgood Marshall were opened at the Library of Congress. I was part of the Washington Post team that discovered the documents and used them for a four-part series published in May 1993. The stories about the once-private exchanges among the justices generally made the Court look good. We noted that, “The exchanges are serious, sometimes scholarly, occasionally brash and personalized, but generally well-reasoned and most often cast in understated, genteel language.” Yet the series also revealed internal deliberations, including O’Connor’s changed views and votes on abortion rights.

After the Post series began, Rehnquist drafted a letter to Library of Congress director James Billington that said, “I speak for all of the active Justices of the Court when I say that we are appalled by the Library’s decision to open to the public Justice Thurgood Marshall’s papers….” O’Connor echoed that sentiment in a memo back to Rehnquist and told him, “Perhaps the final sentence could state that the failure of the Library to consult with and to consider all the ramifications and effects of granting such an early release of confidential materials may discourage future grants of judicial papers to the Library of Congress.” Other justices, however, including Byron White and Anthony Kennedy, thought that the LOC had done exactly what Marshall, who died earlier in 1993, had wanted. Those justices would not endorse Rehnquist’s rebuke, and, in the end, the chief justice revised his letter to say he was speaking for only a “majority of the active Justices,” not “all of the active Justices.”

In 2004, the files of the Justice Blackmun were made public at the Library of Congress. They were exceedingly valuable to researchers because, as Linda Greenhouse wrote in her biography of Blackmun, he chronicled “his life and the world around him in astonishing detail.” He saved virtually every piece of correspondence he received — to the chagrin of some of his colleagues, whose personal thoughts can now be copied for 20-cents a page at the LOC. After that, O’Connor said it would be a long time before another justice’s files were open to the public.

Since then, some of the papers of Rehnquist, who died in 2005, have become available at the Hoover Institution on the campus of Stanford University. And as I noted in an earlier post, Justice O’Connor has warned about the opening of her files: “Don’t hold your breath.”

One final note on the subject of bypassing justices and trying to get current law clerks to talk: After my earlier post, I heard from reporters who said they were thinking about being more aggressive about calling clerks. Well, I wouldn’t want that! It goes without saying that I’m not trying to spur anyone to a more competitive advantage. And for any law clerks out there waiting for the call (as the professor who started all this was): Remember me, please.

The week is about to end without a ruling from the Supreme Court in Citizens United v. Federal Election Commission, regarding governments’ authority to regulate corporate and labor union spending in elections. Both sides have been anxiously awaiting a decision in the case that was argued last September and could affect big-money expenditures in this fall’s mid-term elections and all future races.

So sure were many campaign experts that the ruling was coming this week that they deluged reporters with notices of planned teleconferences and statements of how significant the decision was likely to be.

I cannot blame anyone for trying to predict the Court, especially when so much is at stake. But having gone through hundreds of once-private documents in judicial archives and seen how eleventh-hour switched-votes play out, I know how many factors can delay a case. A justice whose vote is crucial to the majority could be wavering. There could be an escalation in rhetoric between the majority and dissenting opinions. And those are just the predictable hold-ups.

I can recall numerous cases from my research on Antonin Scalia and Sandra Day O’Connor of flipped votes detected only after a justice’s private papers became public.

In the 1988 case of Bowen v. Massachusetts, between the federal government and states over Medicaid expenditures, Justice Scalia started with the opinion for the court but lost it when Justice William Brennan reconsidered competing legal rationales. One of the lawyers in the case told me recently that he wouldn’t have known that the outcome had changed if he hadn’t read about the behind-the-scenes maneuverings. Sometimes, there’s enough of a ‘we were robbed’ tone to the dissenting opinion to suspect that a justice changed his or her vote. But often the public opinions give no clue.

In the 1994 Holder v. Hall dispute over the scope of the landmark Voting Rights Act, Scalia started with the majority and the opinion for the Court, but then justices on his side began splintering off. Chief Justice William Rehnquist reassigned the opinion to Anthony Kennedy. That case, by the way, was argued on Oct. 3, 1993 and not decided until June 30, 1994. Could we be waiting for Citizens United until June?

I solved a mystery in the 1989 case of Wyoming v. United States, involving water rights for Native Americans on the Wind River Reservation, while I was doing research on O’Connor. The United States government, as a trustee for the tribes, had successfully contested a Wyoming state policy that voided the water rights. In its appeal to the Court, Wyoming claimed the rights had lapsed when the Indians failed to invoke them for irrigation or other projects. O’Connor was writing an opinion for a five-justice majority that sided with Wyoming and would deny the tribe water rights. As Justice Brennan began a draft of his dissent in the case, he referred to the Bible, “The Court might well have taken as its motto for this case the words of Matthew 25:29: ‘but from him that has not shall be taken even that which he has.’”

 But then suddenly everything changed. In late June, O’Connor sent a note to her fellow justices saying she had discovered her family’s Arizona ranch was named in a similar water-rights lawsuit, and she wanted to disqualify herself from the Wyoming matter. Without O’Connor’s vote, the Court was split 4-4 and the tie vote automatically affirmed the lower-court decision favoring the U.S. government as trustee for the tribes. The Court announced its resolution in one sentence. In private, O’Connor had closed her recusal note, which I first found in the papers of the late Justice Thurgood Marshall, with, “The unexpected has become the order of the day this term.” Maybe we’re in for another one of those terms.

When Citizens United finally is handed down, we’ll get some indication of what was happening. And then, years from now, if one of the justices makes his or her papers available – and if any of us are still around to read them – we’ll know much more. Those are big Ifs.

When I asked Justice O’Connor recently about when her archives might be available and if I might find some gems there, she said, “Don’t hold your breath.”