← The 47 Morning Update with Ben Ferguson
The 47 Morning Update with Ben Ferguson
War Stories from the Court: Remembering Justice Sandra Day O'Connor
00:42:19
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- [00:00]
Ben Ferguson
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- [02:19]
Senator Ted Cruz
Well, Listen, Sandra Day O'Connor was an extraordinary person and she's an historic person. She's a trailblazer. Any way 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 1981, until Ronald Reagan was president when he was campaigning for president against Jimmy Carter. Yeah. He promised if there's a vacancy, he would appoint a woman. And he did. Sandra Day 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. Rehnquist. Rehnquist, who would later become the 16th 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. Sandra Day O'Connor was number three in his class. In their class.
- [03:31]
Ben Ferguson
Wow.
- [03:32]
Senator Ted Cruz
I've always wondered whatever happened to the poor schlub who was number two. You 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 Sandra Day O'Connor dated.
- [03:47]
Ben Ferguson
No way.
- [03:49]
Senator Ted Cruz
Not only did they date, but Rehnquist asked her to marry him. And she said no.
- [03:56]
Ben Ferguson
This isn't a wives tale.
- [03:57]
Senator Ted Cruz
This is legit. No, no, this is. He was my boss. I knew. He was a mentor. I knew him very well. Subsequently, they both got married.
- [04:06]
Ben Ferguson
Yeah.
- [04:07]
Senator Ted Cruz
And wait.
- [04:08]
Ben Ferguson
She said, did you ever hear the story of the saying a no and how that went down?
- [04:11]
Senator Ted Cruz
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 you about.
- [04:23]
Ben Ferguson
Very good decision. Fair point.
- [04:25]
Senator Ted Cruz
So. But he and his wife and she and her husband became lifelong friends.
- [04:29]
Ben Ferguson
That's so cool.
- [04:30]
Senator Ted Cruz
And so she was Sandra Day.
- [04:33]
Ben Ferguson
Yeah.
- [04:33]
Senator Ted Cruz
And she was dating a fellow named John O'Connor, who obviously became her husband. She described. She wrote an autobiography about growing up on 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 castrating calves. And she's a smart dad.
- [05:04]
Ben Ferguson
Right there.
- [05:04]
Senator Ted Cruz
She 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.
- [05:30]
Ben Ferguson
Yeah.
- [05:31]
Senator Ted Cruz
But that's what Sandra Day oconnors dad did. So she had a life where she was in politics and then she ended up in 1981, when Reagan is president, being appointed to the Supreme Court, being the first female Supreme Court justice. Now I gotta 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 Sandra Day O'Connor is? And my 15 year old daughter said, yeah, dad, I do. I'm not going to tell you. My 13 year old said, I have no idea and I don't care which. You can look forward to this when you have teenagers.
- [06:12]
Ben Ferguson
Yes.
- [06:13]
Senator Ted Cruz
So I tried to explain briefly to them and then they're like, yeah, yeah, whatever, dad. So Justice O'Connor on the court, she was a trailblazer. She, she and Tony Kennedy, who was Reagan's third appointee, were the swing votes for 20 years. So basically, the way the court played out for a long time is there were three reliable conservative justices. William Rehnquist, Antonin Scalia and Clarence Thomas. There were four reliable left wing justices. And then in the middle, exquisitely in the middle, were Sandra Day O'Connor and Tony Kennedy. And the basic dynamic was, look, the left wing of the court had four votes. They needed to get one of them.
- [07:01]
Ben Ferguson
Yeah.
- [07:01]
Senator Ted Cruz
And if they got one of them, they won five, 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.
- [07:14]
Ben Ferguson
Yeah.
- [07:15]
Senator Ted Cruz
So Sandra Day O'Connor was someone who believed powerfully in balancing. There's a law review article that Antonin Scalia wrote called the Rule of Law is 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 instance in which it's unjust for someone to get hammered. On the other side of a bright line. Sandra Day O'Connor loved balancing tests. She loved amorphous standards. Now, what is the advantage of an amorphous 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 underserving, 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, O'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.
- [09:14]
Ben Ferguson
How was that, by the way? And how do you prepare for that? Because I know when you're going to up there, you're going to 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, but, but when you go up against, you go in front of, I say the Supreme Court, and you're looking at Sandra Day 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?
- [09:40]
Senator Ted Cruz
So my first oral argument was on October 7, 2003. I was 32 years old. It was a case called Frew versus Hawkins. I had just been appointed Solicitor General of Texas the beginning of that year. And look, I got to say, number one, how do you prepare for it? I had spent literally thousands of hours getting ready 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 32, 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 32, I felt pretty good about my abilities to handle this. And so I had a rule. 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 Princeton Review, which was really fun. And we would advise kids, if you're taking the SAT or the LSAT 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 10 hours sleep. By the way, in politics, before any debate, I try to do that for two nights in a row, get nine to 10 hours sleep because your brain is a half second faster. And in combat, a half, half second matters. Well, the night before my oral argument, I went to bed at like 8:30 at night. I laid down in bed and I stared at the ceiling and did not sleep a minute.
- [11:24]
Ben Ferguson
Yeah.
- [11:25]
Senator Ted Cruz
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 Frew 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 8:1 and I wanted to lose 8:1. I wanted a Clarence Thomas dissent. My whole argument was, come on, Justice Thomas, give me this dissent. 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's lawyer that both agreed. Let's 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 Cornyn, 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. He appointed me as Solicitor General. The Fifth Circuit had upheld overturning that consent decree, and the Supreme Court granted cert. It took the appeal. Now the problem was once they took the appeal, there was no circuit 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, the first case. So the Supreme Court term always begins on the first Monday of October. My argument was the first case on the first. First day of the term. And I got up and I'm presenting the argument. And by the way, is that good.
- [13:22]
Ben Ferguson
Or bad news, by the way? Because I don't know. I mean, is that a.
- [13:25]
Senator Ted Cruz
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 massive ratio. Yeah. Some speech where you're Clarence Darrow, you're going to speak and soar. That is not a Supreme Court argument. You begin with Mr. 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 I've told. When 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 gotta 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.
- [14:45]
Ben Ferguson
And you know that going in.
- [14:47]
Senator Ted Cruz
Yes. And there are 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.
- [14:54]
Ben Ferguson
Is that a legal thing, or is that just tradition?
- [14:56]
Senator Ted Cruz
It's tradition. It's not a legal thing. They can do it. But they basically 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 in the room 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. 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.
- [15:56]
Ben Ferguson
Trying to help you.
- [15:57]
Senator Ted Cruz
They're trying to help you. And so as an advocate, you're responding to this. Now, that's in. In a normal case, in many of the cases I argue, that's what played out. That was not fru. 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 to two consecutive syllables in 30 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 da, da, da, da, da. And I go, yeah. And then Ginsburg jumps in and goes, ba, ba, da, da, da. And I go, duh. And I have three pages where I go, yeah, ba da. That's it. That's all I get. And most of the questions came down to the following. Counsel, how the hell can you say that the state didn't consent to a consent decree? Yeah, 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 office holder 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.
- [17:27]
Ben Ferguson
That's a good excuse of not being there that day in court, though, right?
- [17:30]
Senator Ted Cruz
It was. So oral argument proceeded 30 minutes. It was brutal. I told you my. My home run was an 81 loss with the Clarence Thomas descent. I'm sorry to say I failed utterly. I lost 9 0. The opinion rejected everything we said across the board. Afterwards, I went and saw Chief Justice Rehnquist, my own boss, that the case was decided so you could sit down and talk with him after it was done. So it was the afternoon I had tea with him. It's one of the things he liked to do, was have tea in the afternoon with his former clerks.
- [18:03]
Ben Ferguson
Did he love, by the way, the fact that you were a former clerk that was then arguing in front of him?
- [18:08]
Senator Ted Cruz
And he had had many former clerks like he was. He was.
- [18:12]
Ben Ferguson
But it's got to be cool. I mean, you're looking out there and it's somebody that worked on your staff.
- [18:16]
Senator Ted Cruz
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 Rehnquist says to me, he goes, 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. I was like, thanks, Chief, Thanks. 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 Renchberg? And Renschberg became an 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 1981. There were very few women that had judicial careers. The sort of list of potential nominees to choose from was quite Limited in 1981. And especially if you were looking for conservatives, it was almost non existent. And so Rehnquist actually suggested Sandra Day O'Connor, his old classmate, his old girlfriend. And Reagan took him up on it. Now, the year I clerked at the court was 1996 to 1997. That year was the 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 1996. The justices didn't know what the Internet was. I mean, this was really early on. And so the court librarians, you know.
- [20:23]
Ben Ferguson
In my head right now I'm thinking, what was the median age of the supreme court back then?
- [20:27]
Senator Ted Cruz
1007. Yeah, but like, they're really old. So the librarians got mail.
- [20:33]
Ben Ferguson
Did you have to show them how to do that?
- [20:35]
Senator Ted Cruz
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 Rehnquist chambers and the O'Connor chambers. And so we had a small room. We had William Rehnquist, the Chief justice of the United States. We had Sandra Day O'Connor. We had O'Connor's four law clerks. We had Rehnquist three law clerks. We're all in this tiny, 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 cantaloupe misspelled. And cantaloupe misspelled in 1996 with no filters on, pulled up graphic hardcore pornography. And so I'm sitting, standing in a darkened room right Behind Sandra Day 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 admit, 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 septuagenarian watching porn right now. But I also couldn't help thinking, like, I knew the history. I knew that Rehnquist 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?
- [22:14]
Ben Ferguson
It could have been his wife 50.
- [22:17]
Senator Ted Cruz
Years later, and they're watching porn with their employees at the Supreme Court. It was a. It was a surreal moment.
- [22:25]
Ben Ferguson
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- [24:16]
Senator Ted Cruz
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 clerks wearing Birkenstocks. Rehnquist my boss.
- [25:04]
Ben Ferguson
You're saying you wouldn't have gotten that job?
- [25:06]
Senator Ted Cruz
No, I was, I was not in the running for suitors. I'm okay with that. Rehnquist 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 atypical Rehnquist clerk. You would have been much more likely to be to get hired by Rehnquist because he hired athletes. And part of the Rehnquist clerkship is you had to play tennis with him done every week.
- [25:33]
Ben Ferguson
That's the closest I would ever gotten to clerking on the Supreme Court was that one qualification.
- [25:37]
Senator Ted Cruz
So. And he would. So we played tennis Thursday mornings, 11am and actually so you had. So in any given year there are roughly 8,000 petitions for certiorari, which is a request for the Supreme Court to Take an appeal. The court grants about 80 a year. So they grant about 1%. The way the court resolves those is they have something called the cert 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 20 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 11. And you gotta understand the clerkship like you work most days, you work from. I work from about 9am to 1am 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 an awful lot of Wednesday nights I would pull an all nighter. I'd be there all night because I'd start at like 10:00 at night. Wednesday I'd do an all nighter 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, but I have a really ignominious distinction. So for 20 plus years, the Chief always picked the best tennis player to be his partners. We played doubles. So my year, the best tennis player was David Hoffman. He was the JV tennis player at Yale. Yeah, first week we played David and the Chief versus Rick and me, the score was 606 0. The next week we played, the score was 60 60. The next week we played, the score was 606 0. 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.
- [28:12]
Ben Ferguson
And for the rest, just to make it competitive. I love that.
- [28:14]
Senator Ted Cruz
And for the rest of the year, we ended up actually generally winning, but It'd be like 6, 4, 6, 5. 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 24 karat 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.
- [29:04]
Ben Ferguson
Yeah.
- [29:05]
Senator Ted Cruz
And we would run full court, two hours, Monday, Wednesday, and Friday. We actually had some pretty good games.
- [29:11]
Ben Ferguson
You were in the best shape of your life.
- [29:13]
Senator Ted Cruz
I actually like six hours a week of full court basketball. 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 her 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.
- [29:43]
Ben Ferguson
Yeah.
- [29:44]
Senator Ted Cruz
Now, I have to admit, I was kind of glad because I didn't want to do aerobics. And I might have felt pressured to do it if, like, men were invited. So I wasn't. So it was very easy. All right, one more Sandra Day O'Connor story. So I was solicitor 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. We won most of them. One of the biggest cases was a case called Van Orden versus Perry. Now, Van Orden versus Perry 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 Rehnquist in the court. So this is the mid 2000s. 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 1961, but its history actually goes back to the 1950s. In the 1950s, there was a Minnesota state judge named E.J. ruegemeier, who in the 1950s was upset about the diminishing morals of the youth in America. By the way, pause and think. In the 1950s, he was worried about youth morals. Think about today.
- [31:02]
Ben Ferguson
Yeah.
- [31:03]
Senator Ted Cruz
Like, Holy cow, in 80 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 Kiwanis Club. He said, hey, what do you 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. DeMille's movie, the Ten Commandments.
- [31:38]
Ben Ferguson
No way.
- [31:39]
Senator Ted Cruz
You know, Charlton Heston comes down from Mount Sinai carrying the Ten Commandments, and Cecil B. DeMille was a larger than life Hollywood character. And DeMille 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. And they're all identical. Texas. It's 6 foot, 3 inches tall, 3 foot, 6 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. 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 gods of litigation have spared me my just desserts both times. When I was arguing the defense of the Texas Ten Commandments case in the. 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 denominations. 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 5th Circuit, Judge Prado leans forward and says, counsel, that sounds like the beginning of a joke. And I immediately said, yes, your honor. But nobody walked into a bar. And miraculously, it worked. The judges took pity on me and laughed. It was stupid, but I was grateful for their mercy. We're 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. 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 plaintiff, 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 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, general, 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 Abbott and me. You idiots. Ask 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. Abbott, 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 discrete issue of law. It's incredibly important. He spent two months preparing for the argument. I put together some moot courts. I did a moot court in D.C. with a murderer's row of Supreme Court advocates. They had collectively over 100 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, general, I hope that was productive. Yeah, please tell me I'm not unemployed.
- [36:42]
Ben Ferguson
Yeah, yeah, please tell me I'm not getting my walking papers today.
- [36:44]
Senator Ted Cruz
But look, if you do it right, you want the moot to be harder than the actual arguments. So he went through, did several moves. 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, Sandra Day O'Connor was the deciding vote on almost every religious liberty establishment cause 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 Sandra Day O'Connor's establishment clause jurisprudence. 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 J. 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 Sandra Day O'Connor on the COVID of our brief, we should do so. And again, I was, you know, probably. I was a cocky 34, 35 year old. I went to Abbott and I said, general, we are. We're living in her psyche. This brief is exactly what Sandra Day O'Connor thinks. Well, at 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 Supreme Court arguments are weird. Every argument we'd aimed at Sandra Day O'Connor missed her, but bizarrely enough, struck Steve Breyer.
- [38:28]
Ben Ferguson
Wow.
- [38:29]
Senator Ted Cruz
Bill Clinton, appointee, relatively liberal justice. And the two cases I told you there was Kentucky and Texas. Four justices vote to voted to strike down both monuments. Four justices voted to uphold both monuments. Steve Breyer voted to strike down Kentucky and to uphold Texas, which, among other things, was a vindication of. If we hadn't acquiesced in cert, the only opinion would have been Kentucky, and it would have been devastating for Ten Commandments monuments across the country. There was also a really nice kind of perfect personal vindication in this. So Chief Justice Rehnquist had been an original dissenter in a case called Stone vs 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 Sandra Day O'Connor, when it came to the standards, we didn't meet her standards, but miraculously enough, Steve Breyer liked what we had to say. And so we entered. And by the way, since then, the McCreary case out of Kentucky has proven to be a very unimportant precedent. It is rarely cited. And the Van Orden case changed the entire direction of case law so that 10th 10 Commandments displays are now routinely upheld.
- [40:13]
Ben Ferguson
This is why I love doing the show. It's so fun to get to talk about this. And Sandra Day O'Connor, the first woman of the Supreme Court, died, passed away at the age of 93. Senator, always a pleasure. Don't forget, download this podcast and make sure you hit that subscribe auto 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, the algorithms change this week on Apple. Make sure you hit that follow button and check to see because they have changed the algorithms where if you haven't downloaded an episode in X number of days, apparently it can stop doing it for you. So make sure you hit that follow button again and check it often. The center and I will see you back here on Wednesday. If you're a guy and you are sick and tired of feeling like you've gotten a little bit older, maybe you you feel like weakness and complacency have set in. You're not alone. Testosterone levels have literally fallen off a cliff historically and they're now at an all time low. Now, thankfully, the patriots at Chalk are here to help real men just like you take back your right to proudly maximize your masculinity by boosting testosterone levels up to 20% over 90 days. Yes, 20% over 90 days. Now, I've been taking the male Vitality stack and it's manufactured right here in the US Of A. Chalk's natural herbal supplements are clinically proven to have game changing effects on your energy, your focus and your mood. So if you're ready to fight back and not give in to the weakness that everybody seems to be obsessed with, then check out chalk choq.com boost your testosterone levels up to 20% over 90 days. Go online to choq.com that's ch. Oq. Com. Check out the mail Vitality stack and use the promo code Ben for 35% off. That's right. You'll save 35% off right now for life at chalkchoq. Com promo code Ben.