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“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.