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In the chambers of the US Supreme Court

Jeffrey Toobin examines the nine personalities that sit on the nation's highest court

By / September 25, 2007

It turns out life behind those blood-red drapes at the US Supreme Court isn't all power politics and high-stakes legal showdowns. In fact, sometimes as I cracked open Jeffrey Toobin's new book, The Nine: Inside the Secret World of the Supreme Court, I felt the temptation to cue up the theme music to the classic movie "Gone With the Wind." For an extended meditation about trends in the law, the book serves up a few morsels of actual human drama and heart-wrenching tragedy.

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Don't get me wrong, this isn't heaving-bosom, romance novel stuff. It is, after all, still constitutional law. But Toobin, a staff writer at The New Yorker and a CNN legal analyst, manages to offer some deeper insight into judicial character by drawing back the drapes – if only for a moment or two.

Toobin reports that after the high court's December 2000 decision in Bush v. Gore, Justice David Souter was so shattered by the conservative majority's intervention to stop the vote count in Florida that he "seriously considered resigning."

"For many months, it was not at all clear whether he would remain as a justice," Toobin writes. "That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same." And then Toobin reveals this: "There were times when David Souter thought of Bush v. Gore and wept."

The account has triggered a bit of controversy, which is always good for book sales. A long-time Souter friend, former New Hampshire senator Warren Rudman, recently told the Manchester Union-Leader that the account is fiction. "Nobody is closer to David Souter than I am and that story is false," Mr. Rudman told the newspaper.

Rudman did verify another of Toobin's anecdotes, however. Mr. Souter and Justice Stephen Breyer are sometimes mistaken for each other by outsiders – although the two men do not look anything alike. As Toobin tells it, a man and his wife once approached Souter and asked, "Aren't you on the Supreme Court?" Souter admitted that he was. "You're Justice Breyer, right?" the man asked. Ever polite, Souter nodded and chatted with the couple for a few minutes. Then the man suddenly asked: "Justice Breyer, what's the best thing about being on the Supreme Court?" The justice answered, "Well, I'd have to say it's the privilege of serving with David Souter."

True story, says Rudman.

Toobin offers up some intrigue as well. He tells the story of how the late Chief Justice William Rehnquist administered the oath of office to Bill Clinton in January 1997. A week earlier the Supreme Court had heard oral argument in the Paula Jones case – Clinton v. Jones. (That's the sexual harassment lawsuit that would trigger the tawdry disclosures and events that led to impeachment proceedings.) The justices by then had already conducted their post-argument conference and the chief justice must have known at Clinton's inauguration that the high court was preparing to rule 9-0 against the president.

Toobin writes: "Clinton told friends that the chief justice shook his hand and said, 'Good luck – you'll need it.' The president took the gesture as vaguely menacing."

Toobin goes on to criticize Justice John Paul Stevens's opinion in the Jones case upholding the "commendable principle" that no man is above the law. But Toobin says Stevens's opinion "showed a stunning naiveté about contemporary law and politics."

Stevens and his colleagues rejected Clinton's argument that the Jones suit should be put on hold because it would distract the president from his official duties. "It appears to us highly unlikely to occupy any substantial amount of [Clinton's] time," Stevens wrote. Toobin labels this "an epically incorrect prediction."