“Ask the Author” with Jeffrey Toobin: Part 1

Today marks the release of Jeffrey Toobin’s much anticipated book, The Nine: Inside the Secret World of the Supreme Court. Toobin — a New Yorker staff writer and CNN legal analyst — agreed to answer questions about the book, and Part I of the interview is below. Check back tomorrow for Part 2.

What prompted you to write this book, and when did you begin working on it?

In the summer of 2004, I decided to write a novel – a legal thriller. My literary agent told me that Phyllis Grann, a legendary editor at Doubleday, was very interested in reading it. I wrote three chapters and sent them to Phyllis, who invited me to her apartment to discuss them. “Your novel is awful,” she said. (I believe that is a direct quote.) “You should write a book about the Supreme Court instead.”

It was as if a light bulb went off in my head. Of course I should. I had been covering the Court, off and on, for more than a decade at the New Yorker and on television, first at ABC, then at CNN. The Brethren, by Bob Woodward and Scott Armstrong, was one of my favorite books of all time, but it had been published in 1979 – a long time ago. I signed up with Phyllis a few weeks later, and I’ve been working on the book ever since.

What do you consider to be the book’s most important revelation?

Let me talk about three, at descending levels of specificity.

The theme of the book – not exactly a revelation, I suppose – is the growth of the conservative movement and its effect on the Court. I start with the birth of the Federalist Society shortly after President Reagan’s election and show how young conservatives like John Roberts and Samuel Alito were drawn to Washington and flourished there. To see that story spelled out over twenty-five years was – to me, anyway – a revelation.

Second, the book contains the first detailed, behind-the-scenes reconstruction of what happened at the Court during Bush v. Gore – a case which obsesses and fascinates me. As time passes, I believe the significance of the case cannot be overstated.

Third, I disclose that David Souter nearly resigned in protest over Bush v. Gore. That story, in one way, illustrates the magnitude of the case.

The book jacket says the text is based on “interviews with the justices themselves.” How many total former and current Justices did you interview?

I have decided not to say how many justices I interviewed. I received much better cooperation than I expected, both from the justices and their law clerks. But my efforts to interview clerks required a thick skin on my part; several told me to go to hell. But not all, fortunately.

Reader Patrick Wood asks, “Much has been made of Justice O’Connor”s replacement by Justice Alito and the narrowing or overturning of some of her key decisions (Stenberg and McConnell, to cite two examples). Were you able to glean any insight in to Justice O’Connor’s feelings about these events and the Roberts Court in general? Joan Biskupic of USA Today recently stated that Justice O’Connor declined to comment during an interview, but were you able to ascertain her thoughts from other sources?”

You bet I was. Justice O’Connor is appalled. This is not her Court anymore, and she knows better than anyone that it is her decisions – like Grutter and the joint opinion in Casey – that are most at risk from an ascendant conservative majority.

Your account of the circumstances behind O’Connor’s retirement differs from the one presented in Jan Crawford Greenburg’s book, Supreme Conflict. Both you and Greenburg recount a conversation preceding the resignation between O’Connor and an ailing William Rehnquist in late June 2005. According to Greenburg, O’Connor had begun to think she would spend one more year as a Justice before retiring. But during the conversation, Rehnquist told O’Connor, “I want to stay another year” …. “And I don’t think we need two vacancies” [at the same time]. As Greenburg put it, “O’Connor…was caught off guard. Rehnquist’s implication was clear: She must retire now or be prepared to serve two more years.”

According to your book, O’Connor entered the conversation seemingly leaning toward immediate retirement to care for her husband, John. You write that O’Connor told Rehnquist, “Bill, I think John needs me. I think I need to go, but I don’t want to leave the Court with two vacancies.” In reply, Rehnquist said, “I think I can make it another year. I’m not going to resign.” To be sure, you also write that O’Connor “in some ways wanted to remain on the Court” and ultimately conclude that Rehnquist “forced her hand” by requiring O’Connor to retire immediately or wait two more years. But your account would seem to suggest Rehnquist may have acted selflessly (by volunteering to serve another term so that O’Connor could retire and tend to her ailing husband) rather than selfishly (by hanging on to his seat despite his visible decline in health).

Was that in fact the impression you sought to create? If so, why do you believe your account differs from that of Greenburg? If not, could you clarify the situation?

Sheesh, you lawyers are tough. Maybe I’m dense, but I don’t see a great deal of difference between the two accounts. Neither Jan nor I were in the room, of course, so it’s inevitable that we would come up with slightly different accounts of this important conversation.