Books, David Souter, Election Law, Jeffrey Toobin, Media and Journalism, Politics, SCOTUS, Supreme Court

Bush v. Gore: Enough to Make a Grown Justice Cry?

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Another day, another controversy involving New Yorker scribe Jeffrey Toobin and his eagerly anticipated book, The Nine: Inside the Secret World of the Supreme Court (to be published on September 18).
Yesterday we wrote about Toobin weighing in on who deserved the blame for Harriet Miers. Today we bring you a new drama (first noted earlier this week by Jeff Dufour and Patrick Gavin, over at Yeas & Nays).
We begin with a juicy excerpt from Toobin’s book, concerning Justice Souter’s reaction to Bush v. Gore:

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.

More discussion, including JT’s juicy revelation about Justice Souter, after the jump.


The social butterflies described in that paragraph sound a lot like Justice Stephen Breyer and Justice Ruth Bader Ginsburg. With their charming spouses — Joanna Breyer, daughter of an English Lord, and Marty Ginsburg, a warm and witty tax lawyer — they are fixtures on the Georgetown party scene. (Justice Stevens spends more time in Florida, so he’s not as much of a party animal.)
Oh sorry, where were we? Oh yes, Justice Souter, as described by Jeff Toobin:

Toughened, or coarsened, by the their worldly lives, the other dissenters could shrug and move on [from Bush v. Gore], but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter though he might not be able to serve with them anymore.

(Of course, one might wonder whether a justice who would leave the bench over a single case might be the “crudely partisan” one — especially when colleagues of similar political views were willing to solider on.)

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. 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. There were times when David Souter thought of Bush v. Gore and wept.

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We get teary eyed over some pretty odd things — a documentary on spelling bees caused us to shed some wet tears — but Bush v. Gore? Are Article II, Section 1, and 3 U.S.C. § 5, really that moving?
(Then again, that David Souter is an odd duck.)
Some are skeptical of Toobin’s claim of a crying Souter. From the New Hampshire Union Leader:

Souter’s close friend, former New Hampshire Sen. Warren Rudman, calls that assertion in a new book by a well-known legal expert “absolutely false.”…

“That’s absolutely false,” an obviously irritated Rudman told the New Hampshire Union Leader yesterday. “It’s one of the great works of fiction – that book should win the Pulitzer Prize for fiction.”

Ouch. But keep in mind that Toobin — a staff writer for the New Yorker, a legal analyst for CNN, the author of several critically acclaimed (and bestselling) books, a former Harvard Law Review editor, and a former AUSA — is an extremely well-respected journalist and legal analyst.

Rudman said that “no one” knows more about how Souter felt about the decision – and how Souter felt in its aftermath – than he does.

“It’s no secret that (Souter) wasn’t pleased, but to say he was weeping and crying is well – I won’t use the word in the newspaper,” said Rudman.

Come now, Senator Rudman. How can you be 100 percent certain that not a single tear welled up in one of Justice Souter’s eyes over Bush v. Gore? Sure, you’re a close friend. But do you spend every minute of every day with DHS? Are you the wife that he never had?
So we’re with Toobin on this one; we believe his account. Here’s how he responded to Warren Rudman (from the WSJ Law Blog):

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Toobin emailed the Law Blog a response to Rudman’s remarks. “I admire Senator Rudman a great deal,” he said, “and I trust that when he reads ‘The Nine’ in its entirety, he will find the portrait of his friend Justice Souter nuanced and accurate.”

We’ll conclude with this paragraph from the Union-Leader:

While the book reportedly alleges that “a handful of close friends” urged Souter not to resign, Rudman said the author “never talked to me. You’d think he would have called me.

Well, Warren, maybe you’re not as close to Justice Souter as you thought.
Book says Souter mulled resignation after Bush v. Gore [Yeas & Nays via How Appealing]
Did Souter cry over 2000 recount vote? [New Hampshire Union Leader]
Did Bush v. Gore Make Justice Souter Weep? [WSJ Law Blog]

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