'A Box Seat at the World Series'

What was your path to the Missouri Supreme Court? 

I was Governor Ashcroft’s chief of staff. And, before that, I had been the number two guy in the attorney general’s office. I was barely 33—and that was basically as young as it had ever been in Missouri. The Supreme Court at that time had six guys, all of whom were older than my father, and most of whom hated each other. There was a sense, among some of the people who were interested in getting the court to do its job a little better, of getting somebody in there who wasn’t part of the old gang. … That was the unique historic circumstance that allowed a guy like me to run through the crack.

Coming from the governor’s office, what was the reaction like?

It looked like I was a political hack, and that the governor was trying to run the Supreme Court, too. Some of the newspapers were unhappy with that, and some of the lawyers were unhappy with it. And they probably should have been.

How were the first couple of years?

I thought I had died and gone to hell. The work was very interesting; it was important. But the interpersonal squabbling that was going on was just horrible. By the time I left [after 13 years in 1998], all of those people were gone, because there was a mandatory retirement age. And the court had become the exact opposite of what it had been: It was a delightful place. We didn’t always agree, but we weren’t disagreeable about the way we disagreed. It had become what you would hope that a court would be.

Any memorable cases?

The case I’m most famous for is Cruzan v. Director, Missouri Department of Health—it went up to the United States Supreme Court. A woman had been in a coma for a long time, and they said she was in a persistent vegetative state. The question was whether they could withdraw nutrition and hydration, to which I made the mistake of writing an opinion saying, “Well, it’s not nutrition and hydration, it’s food and water.” We said you could do it, but only if there’s clear and convincing evidence that that’s what she would have wanted. And the Supreme Court of the United States took the case and affirmed it.

That’s the one that caused the most death threats for me. Literally, I got a letter from a right-to-die society member—I think they call it the Hemlock Society—that basically said, “it would be right if you die.”

Why did you decide to leave the bench?

I thought I had lost my freshness and my edge. You begin to see things again and again. You’re not as careful when you think you know the answers, and there might be some nuances that you missed. It was important that these cases—which don’t get to the Supreme Court unless they’re really important cases—have people who had not become even slightly jaded about it.

You were chief justice from 1991 to 1993. Are there any changes you enacted?

We would hear cases in September, January and May. I decided we should hear the cases on a rolling basis, because you’d start in January and there would still be 10 or 15 cases that hadn’t been decided. … It seemed to me that we ought to hear cases every month and even-out the case work.

The chief justiceship rotates. … It’s a two-year term, and it’s a seniority thing. If you’re the next senior person who hasn’t been chief justice, you become the chief justice. And then you go to the end of the line and work your way up. I created what I called the Office of the Chief Justice, so you always knew who was going to be next. The next two chief justices would get together with the current chief and plan out what the next six years was going to look like, rather than the next two.

Also, [Justices] Ann Covington, John Holstein and I put together what I call the Critical Issues Committee. We did this before I became chief, in 1988 or ’89. We decided we’ve got to computerize the judiciary, and Missouri was one of the first states to really get this business of being able to file electronically up and running. 

Anything about the job you didn’t particularly enjoy?

You’d see trials where lawyers could have done something differently, that you believe would have changed the outcome. But you can’t go in and say that, because you’re limited to the points that have been raised on appeal by the parties. There were cases in which, I suspect, all of us dropped a footnote suggesting something as a teaching aid for people who might be reading it down the road. Really, the most difficult part is that you’re sort of handcuffed by the lawyers and what they did at the trial court level. 

At the end of the day, the system exists to produce the right result. And sometimes the right result doesn’t get produced—not because the judiciary is not doing its job, but because the judges can’t also be the lawyers. We are limited, and rightfully so, to what we are asked to look at, rather than what we maybe should have been looking at. 

Do you have any advice for lawyers looking to be judges?

One of the really difficult parts about judiciary these days is the economic sacrifice that a really good lawyer has to make in order to become judge. … If you look, historically, really good, successful lawyers would decide at the age of 50 or 55 that they want to finish their career in service, and can afford to do that. The pay differential was there, but not that great. Now, the pay differential is unbelievably different.

So, the pool from which judges are now coming tends to be people who are already in public service. That has, in some ways, limited the breadth of what you get on a court. And you need breadth. I mean, the reason you want seven people on the Supreme Court is that, if everything is done right, you see where there are holes and who can fill them. 

If you take the economics out of it, you want people who don’t have their minds made up until they have some basis for making it up.  … You want people who have a kind of experience that’s necessary, but who have shown an ability to understand that there is another side to the argument. If I were going to try to get on the Supreme Court now, I’d want to get the broadest sort of range of exposure to things that I could possibly get. 

The other thing is that you want to be seen as a person who is thoughtful. We used to talk about this at every level of government office I was in: “What are we looking for? We’re looking for people with creative self-doubt.” There are people who understand that they may not understand, and so let’s get somebody who will attack their prejudices. And that, really, is what I hoped to see in every judge that we got.

Any final words?

It was just an unbelievable opportunity to be in public service at a high level, and to really try as best you could to make the state of Missouri a little better place. … Some of the friendships I made with the new group of justices are the deepest and most lasting friendships I’ll ever have. You see the broadest range of the law, and if you’re interested in that sort of thing, it’s a box seat at the World Series, every day.