“Ask the Author” with Jeffrey Toobin: Part 2
Today marks the second and final installment of our interview with Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court. To read Part 1 of the interview, click here.
Your book recounts the story of Sandra Day O’Connor expressing extreme disappointment at an election night party in November 2000 when the networks initially called Florida for Al Gore. O’Connor would later explain her remarks as being directed at the networks for calling pivotal states before voting on the West Coast had finished. But you write that O’Connor’s own husband told guests at the party that the Justice was angry because the couple wanted to retire to Phoenix and she did not want a Democratic president to name her successor. Thus, according to O’Connor’s husband, a Gore win would have meant at least four more years in Washington. Do you believe O’Connor’s husband’s explanation and, if so, why do you suppose O’Connor opted not to retire during President Bush’s first term?
I think the disclosure of the O’Connors behavior at the election night party - in my book Too Close to Call: The Thirty-Six Day Battle to Decide the 2000 Election, as well as elsewhere - embarrassed the Justice and her husband. I think, too, she and her colleagues in the majority in Bush v. Gore were taken aback by the vehemence of the criticism of that decision, and she in particular wanted to let passions cool before she left. And finally, she simply loved the job of being a justice, and ultimately wanted to delay leaving as long as possible.
Reader Miles Pope asks, “Is there any anecdote (preferably one that is quirky or sensational) you came across while researching your book that you believe provides an especially clear glimpse into the character of a Supreme Court Justice? If so, could you recount it?”
I have a great fondness for Justice Souter’s eccentricities. He truly is a figure from another century. When he arrived at the Court, he had never heard of Diet Coke. When he went to a wedding in 2003, he made clear that he had never heard of a rather well-known singing group - the Supremes. He eats an apple and a cup of yogurt for lunch every day. But no one on the Court is smarter, nor more adaptable to the modern world. His opinion in the Grokster file-sharing case is not only brilliant, but illustrates a true command of a very modern technology.
Nearly six years after Bush v. Gore - in which you write the Justices “displayed all of their worst traits,” “did almost everything wrong,” and “embarrassed themselves and the Supreme Court” - do you believed the Court has come out relatively unscathed in terms of public perception? If so, why do you believe that is the case?
Mmm, good question. The passage of time heals a lot of wounds. As with so much else, too, the events of 9/11 turned attention away from everything else, including the Court and Bush v. Gore. In addition - for reasons I describe in The Nine - both Kennedy and O’Connor moved to the left after Bush v. Gore (in part, I think, because of the reaction to Bush v. Gore.) So the critics of the decision had less to criticize in the period 2001 to 2005.
Reader David Huberman asks, “In March 2007, Justice Breyer appeared on NPR’s, “Wait! Wait! Don’t Tell Me!” and indicated that in his 12 terms on the Court, never a word had been uttered in anger in Conference. He characterized the atmosphere as collegial (at all times). Did you find any evidence of an atmosphere of collegiality (or lack thereof) among Court members while researching the current Court?”
There is a lot of collegiality among the justices, but a very particular kind of collegiality. The justices are polite to and respectful of one another. As Breyer said, they do not raise their voices in anger. Yet there are few real friendships among them, either. They spend little time together outside of the Court. They do not shoot the breeze in each others’ offices. This was not true at other times in the Court’s history. There were times when several justices hated each other, and there were times when there were close friendships; neither has been true over the last two decades at the Court.
Some commentators, including our own Tom Goldstein, believe the upcoming term will see the Court “shift” back to the left (see here) - not because of a change in jurisprudence among individual Justices, but because the particular set of ‘high profile’ cases on the Court’s docket (or likely to be granted) involve subjects on which Justice Kennedy is more inclined to vote with the four more liberal Justices. Some examples include cases regarding detainee rights at Guantanamo Bay (Al Odah v. United States and Boumediene v. Bush), the 100:1 crack-to-power cocaine sentencing ratio (Kimbrough v. United States), and federal laws against virtual child pornography (United States v. Williams), as well as pending petitions over the District of Columbia’s handgun ban (District of Columbia v. Heller), and a Louisiana statute permitting the death penalty for raping children under age 12 (Kennedy v. Louisiana). Would you care to offer any predictions for the coming term, either in regards to individual cases or general trends you may foresee?
Tom is not the sharpest knife in the drawer, so I’m not surprised that he’s wrong. (Hey, we kid.) It is true that the Court is now dominated by Kennedy in a way that an individual justice has rarely controlled the Court. (Favorite fact from last Term: in the 24 five-to-four decisions, Kennedy was in the majority in every single one! Second favorite fact: Thomas did not ask a question - for the entire year!) It is true that in some of these areas, like the Gitmo cases and some recent death penalty cases, Kennedy has generally sided with the liberals. I am less confident he will lean that way on the sentencing and Second Amendment cases. The point remains that Kennedy is usually in the conservative camp, and I see no reason why that will change.
Clearly a compliment to exemplary and thorough briefing by the parties and amici…
Comment by Simon Dodd — September 19, 2007 @ 10:22 am
“The passage of time heals a lot of wounds. As with so much else, too, the events of 9/11 turned attention away from everything else, including the Court and Bush v. Gore.”
Actually, a Gallup poll taken seven months after Bush v. Gore and before 9/11 showed that the Court was already a tad higher in the public’s esteem than it was in a poll taken before the election.
Bush v. Gore is an obsession of the Angry Left. The American people as a whole did not see it as tarnishing the Court.
Comment by Kent Scheidegger — September 19, 2007 @ 12:14 pm
Kent - presumably, Jeff hopes to change that. Hence the book’s sub-subtitle, “if you aren’t outraged now, you will be after I tell you this.”
Comment by Simon Dodd — September 19, 2007 @ 12:57 pm
I think you have to view Bush v. Gore in the context of overall public attitudes towards the Supreme Court. Most of the population could not even name one justice. There has probably never been an election in which the Supreme Court was the dominant issue that decided the outcome. Nixon’s victory in 1968 is sometimes cited as an example, but although he certainly campaigned on reforming the Court, Humphrey’s loss was likely determined by other factors. Most Americans don’t have more than a 15-minute attention span for Supreme Court decisions, practically no matter what outcome.
Taken in that context, Bush v. Gore is no more “an obsession of the angry Left” than Roe v. Wade is “an obsession of the angry Right.” For the respective sides, both cases represent a dark day in Supreme Court jurisprudence. Most neutral observers don’t consider either case an example of model judging. If conservatives are more animated about about Roe, it’s only because that case has ongoing vitality, whereas Bush v. Gore was basically a one-time event confined to its facts.
Comment by Marc Shepherd — September 19, 2007 @ 2:14 pm
Marc, I agree with much of what you say in your first paragraph, but the fact that “other factors” were involved in determining the Nixon-Humphrey race does not mean that the Supreme Court was not a factor. In a race as close as that one (or Bush-Gore or Bush-Kerry), a relatively minor issue (in terms of public awareness and concern) could tip the balance.
In terms of the coming election, I doubt that any significant number of people who are “outraged” by Bush v. Gore are not already dead set against the Republican party for other reasons. On the other hand, the issues discussed in Tom’s post yesterday might tip a few people who are otherwise on the fence.
Comment by Kent Scheidegger — September 19, 2007 @ 2:39 pm
Does anyone have any thoughts on the credibility of this book? Toobin claims to have only interviewed justices or their clerks, but his lack of actual citation has led some to question certain parts of the book…
Warren Rudman flat out denies Souter even considered resigning after Bush v. Gore; Justice Breyer contradicts Toobin’s claim that the justices were anything but civil to each other in conference during the same case, and Toobin’s account of Justice O’Connor’s retirement is very different from other recent writing on the subject (as was pointed out to him in reference to Greenburg’s new book).
Thoughts?
Comment by Erik Rice — September 20, 2007 @ 7:15 pm
This point’s highlighted by the problem that so far as we know, the only people in the room were Rehnquist and O’Connor — so there are only two possible sources for what happened and the Chief ain’t talking.
Comment by Simon Dodd — September 21, 2007 @ 8:56 am
Erik, see the LA Times review linked in the Sept. 18 Round-Up post in this blog. I will also paste the link in this comment, but I’m not sure if it will work.
http://www.latimes.com/news/nationworld/politics/scotus/la-et-book18sep18,1,215389.story?coll=la-news-politics-supreme_court
Comment by Kent Scheidegger — September 21, 2007 @ 12:21 pm
Simon, that’s a fair point. Really, almost everything published about the current court is speculation (some go as far as to call it “court gossip”). It should all be taken with a grain of salt.
Still, rereading Garrow’s LA Times article (Thank you Kent) raises some doubts about the book. Garrow writes that the book “showcases debatable opinions rather than thorough research or original reporting” and this appears to be true.
Also, Toobin’s reasoning or tendency to jump to simple or easy conclusions is troubling. He immediately assumed Scalia implied Thomas was “a nut” is a speech a couple years ago, which is not necessarily at all the case (see the Sep. 21 Round Up). Also, in response to Tom’s thoughtful post about the possible outcomes of some major cases this next term, Toobin said this: “The point remains that Kennedy is usually in the conservative camp, and I see no reason why that will change.” Tom’s speculation was much more exact and detailed that this general statement…
Comment by Erik Rice — September 23, 2007 @ 11:27 pm
Here is another review by Ann Althouse in the New York Sun.
Comment by Kent Scheidegger — September 24, 2007 @ 5:36 pm