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.
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."
But what Toobin downplays is that much of the menace that emerged during Clinton's scandal-tainted second term was of the president's own making. No one on the high court, least of all Justice Stevens, could have imagined that Bill Clinton was about to give false testimony in the Jones suit to cover-up an ongoing sexual relationship with a White House intern, and that he would lie about it to a grand jury.
Supreme Court justices are sometimes considered infallible because they get the last word on what the law is, but there is nothing in that calculus that qualifies them as oracles of the sexual and legal escapades of our then commander in chief.
Toobin sprinkles bits of biographical information on the justices throughout "The Nine." Some appear directly relevant to their work on the Court (such as Justice Anthony Kennedy's passion for travel, which in Toobin's view, has ended up "transforming his tenure as a justice"), while others do not (Justice Samuel Alito's love of the Philadelphia Phillies baseball team, which led his fellow justices to invite the Phillie Phanatic, the team's mascot, to his welcoming dinner.)
But together these tidbits add interest, creating a portrait of the varied lives of these top jurists. Of the attractive, charismatic Chief Justice John Roberts, Toobin writes that he "was not genetically engineered to be a justice of the Supreme Court, but it often seemed that way."
Toobin recalls all the ugliness of the Clarence Thomas confirmation hearings, and notes the lasting toll that seems to have taken on Thomas. He also reveals another side to the justice who – alone among his colleagues – made an effort to learn the names of the Court's cafeteria workers, clerks, and police officers. (Toobin also notes that Thomas is a NASCAR fan and an enthusiastic RV owner.)
The personal relationships among the justices are intriguing as well. Thomas and Breyer are described as bench buddies known to laugh and whisper during arguments. Toobin also writes that Ruth Bader Ginsburg (depicted by Toobin as "a shy outsider") and Souter (whom Toobin calls a favorite of the Court's female justices) share an enthusiasm for classical music and the gourmet cooking of Ginsburg's husband.
There are times in "The Nine" when Toobin reveals more about his own legal and political preferences than would be the case in a strictly objective account of the inner workings of the high court. Readers who share the author's left-of-center outlook will likely delight in Toobin's account. Others, looking for a more nuanced, politically neutral analysis may have to search elsewhere. As will many conservatives.
One of the most poignant sections of Toobin's book deals with Justice Sandra Day O'Connor's struggle to balance her love of the court against her loyalty to and love of her husband, John, who had been diagnosed with Alzheimer's disease. At the same time, Toobin says, the life-long Republican found herself increasingly appalled by what was happening to her party under President Bush.
In mid-2005, after much anguish, O'Connor reluctantly offered her resignation. She wanted to take care of her husband personally while there was still time.
But then the chief justice suddenly passed away. O'Connor's departure from the court was significantly delayed. By the time her replacement was confirmed, John O'Connor's condition had so deteriorated that he no longer recognized he, Toobin writes.
"O'Connor discovered quickly that retirement brought fulsome tributes but also immediate irrelevance," Toobin says. "She had lost her job, and the political party that was her home had lost her. Worst of all, she was losing her husband. In those first days after her [retirement] announcement, she didn't answer the phone too often. She sat in her office and cried."
• Warren Richey covers the Supreme Court for the Monitor.