Court Gossip
By From a (generally unfavorable) David Garrow review of Jeffrey Toobin’s new Brethrenesque book about the Supreme Court:
Toobin devotes two chapters to Bush vs. Gore, the case that decided the 2000 presidential election. He asserts, based on unidentified sources, that Justice Anthony M. Kennedy was overly eager for the court to resolve the dispute even before it came to them. He also stresses that Justice Stephen G. Breyer felt that the Florida Supreme Court’s decision to order a statewide recount “didn’t pass the smell test.” He relies heavily on not-for-attribution comments from law clerks who worked for the court that year, and he states that the clerks “set the tone in the building” each year, not the justices.
Obviously, one has to take off-the-record assertions from clerks with several grains of salt. But this rings true to me, partly because it seems consistent with the resolution of the cases. There are other sources confirming that Kennedy’s vote was never in play, and his claim in his abjectly embarrassing opinion in Bush v. Gore that the Court has exercising its “unsought responsibility” can be most charitably described as black comedy. Meanwhile, if the story about Breyer is true this would help to explain why Breyer didn’t — as I would have — pull his dissent when it became clear that Kennedy was playing him for a sucker. Apparently, he actually thought (unlike the majority) that there was an equal protection problem with the recount and was willing to apply it seriously. But it still makes no sense for Breyer to make this argument after he signed an opinion specifically instructing the Florida courts not to apply a statewide standard; like the majority, the impossibility created by his collective positions is basically inconsistent with the rule of law.
Meanwhile, like Michael O’Donnell, I have to admit that however dubious Toobin’s analysis is I’m happy to have some good clerk gossip, and he passes along more of the book’s dish: for example, “After Rehnquist died, Dick Cheney pressed for hunting buddy Antonin Scalia to be named chief justice.” Apparently, the book also repeats something I’ve discussed before — Ginsburg circulated an appropriately tough dissent in Bush v. Gore but immediately withdrew the passages that offended Scalia after he complained. (Coming from Scalia, these complaints about tough rhetoric exposing the illogic of a majority opinion are especially ridiculous, and I still can’t believe that Ginsburg would give in to the bullying.) He also claims that Souter wept and almost resigned after Bush v. Gore, although as Garrow points out this has been rebutted by Warren Rudman and Souter is known for his relatively leak-free chambers.