The Nine (62 page)

CHAPTER 2: GOOD VERSUS EVIL

“
They’ll both bite”:
Mayer and Abramson,
Strange Justice
, p. 16.

Minnesota Twins:
Linda Greenhouse,
Becoming Justice Blackmun
, p. 63.

William O. Douglas, then the senior associate justice:
Bob Woodward and Scott Armstrong,
The Brethren
, p. 170.

Stewart responded eagerly:
J. Anthony Lukas, “The
Playboy
Interview: Bob Woodward,”
Playboy
, Feb. 1989.

“
right on target!”:
Joan Biskupic,
Sandra Day O’Connor
, p. 158.

top hat as a gift:
Greenhouse,
Becoming Justice Blackmun
, p. 56.

“
just like a clown”:
John W. Dean,
The Rehnquist Choice
, p. 86.

“Voices outside the room”:
Bonnie Goldstein, “Rehnquist’s Skeletons,”
Slate
, Jan. 16, 2007,
www.slate.com/id/2157684
.

Rehnquist had tentatively planned:
Mayer and Abramson,
Strange Justice
, pp. 349–50.

the
Post
decided not to pursue the issue:
Ibid., p. 350.

CHAPTER 3: QUESTIONS PRESENTED

bagpipes provided accompaniment:
Biskupic,
Sandra Day O’Connor
, pp. 31–32, 51.

she voted to end criminal prohibitions:
Ibid., p. 58.

a young Justice Department aide named Kenneth Starr:
David J. Garrow, “The Unlikely Center,”
New Republic
, Feb. 28, 2006.

audacious litigation tactics:
Edward Lazarus,
Closed Chambers
, pp. 459–86; Greenhouse,
Becoming Justice Blackmun
, pp. 199–206.

he simply kept
Planned Parenthood v. Casey
off the list of cert petitions:
There is some dispute about how hard Rehnquist tried to delay the
Casey
argument. Blackmun clearly thought the chief was trying to run out the clock before the election. See David J. Garrow, “Dissenting Opinion,”
New York Times Book Review
, April 19, 1998.

never managed to catch up:
David J. Garrow, “Justice Souter Emerges,”
New York Times Magazine
, Sept. 25, 1994.

“
close approach to solitude”:
Garrow, “The Unlikely Center.”

CHAPTER 4: COLLISION COURSE

helped spark the Civil War:
David G. Savage, “The Rescue of
Roe v. Wade
,”
Los Angeles Times
, Dec. 13, 1992.

“
decisions we do not like”:
Lazarus,
Closed Chambers
, p. 471.

“
Wow! Pretty extreme!”:
Greenhouse,
Becoming Justice Blackmun
, p. 203.

a letter from a nun:
Savage, “The Rescue of
Roe v. Wade
.”

“
correctness and legitimacy”:
Greenhouse,
Becoming Justice Blackmun
, p. 204.

unlikely jogging partners:
Savage, “The Rescue of
Roe v. Wade
.”

“‘
what I think it ought to mean!’”:
Margaret Talbot, “Supreme Confidence,”
New Yorker
, March 28, 2005, p. 42.

correct for all time:
Mark Tushnet,
A Court Divided: The Rehnquist Court and the Future of Constitutional Law
, p. 215.

He needed to “brood”:
Terry Carter, “Crossing the Rubicon,”
California Lawyer
, Oct. 1992.

CHAPTER 5: BIG HEART

Cuomo faxed Clinton:
George Stephanopoulos,
All Too Human: A Political Education
, pp. 167–68.

the Guinier nomination blew up:
John F. Harris,
The Survivor: Bill Clinton in the White House
, p. 60.

less sympathy than some judges:
See
http://www.oyez.org/oyez/resource/legal_entity/107/biography
.

“
answer will be nothing but yes”:
Stephanopoulos,
All Too Human
, pp. 170–71. See also Henry J. Abraham,
Justice, Presidents, and Senators
, pp. 315–20.

Ruth Bader Ginsburg had been to women’s rights:
Roger K. Newman, “President Clinton’s Supreme Court Appointments,” lecture, Hofstra University, Nov. 11, 2005.

he was the only person:
David Remnick, “Negative Capability,”
The New Yorker
, Nov. 27, 1995, p. 44.

CHAPTER 6: EXILES RETURN?

witty speech Breyer had given:
Newman, “President Clinton’s Supreme Court Appointments.”

“
how awful you are?”:
Ibid.

Clinton asked his staff to leave him alone:
Ibid.

His distinguished service on the judiciary continued:
See Morris Sheppard Arnold, “A Tribute to Richard S. Arnold,”
Arkansas Law Review
58 (2005): 481, 482.

libertarian magazine:
Douglas H. Ginsburg, “Delegation Running Riot,”
Regulation
18, no. 1 (1995).

CHAPTER 7: WHAT SHALL BE ORTHODOX

“
no other gods before me”:
See discussion in Noah Feldman,
Divided by God
, pp. 151ff.

His law firm declared bankruptcy:
Tony Mauro, “Jay Sekulow’s Golden Ticket,”
Legal Times
, Oct. 31, 2005.

“
Wrong table”:
Jeanne Cummings, “In Judge Battle, Mr. Sekulow Plays a Delicate Role,”
Wall Street Journal
, May 17, 2005.

various civic groups:
Biskupic,
Sandra Day O’Connor
, pp. 282–86.

CHAPTER 8: WRITING SEPARATELY

Thomas required the new ones:
Kevin Merida and Michael Fletcher,
Supreme Discomfort: The Divided Soul of Clarence Thomas
, p. 163.

still bedridden most of the time:
Tony Mauro, “Decade after Confirmation, Thomas Becoming a Force on High Court,”
Legal Times
, Aug. 20, 2001.

his mother was struggling:
Ibid., p. 39.

“
condo on wheels”:
Merida and Fletcher,
Supreme Discomfort
, p. 340.

“universally untrustworthy”:
Diane Brady, “Supreme Court Justice Clarence Thomas Speaks,”
BusinessWeek
, March 12, 2007.

would not appear on television morning news shows:
David D. Kirkpatrick with Linda Greenhouse, “Memoir Deal Reported for Justice Thomas,”
New York Times
, Jan. 10, 2003.

$42,200 in gifts:
Richard A. Serrano and David G. Savage, “Justice Thomas Reports Wealth of Gifts,”
Los Angeles Times
, Dec. 31, 2004.

CHAPTER 9: CARDS TO THE LEFT

Clinton always said he had no memory:
Of course, it is possible that both Jones and Clinton were lying and that a consensual sexual encounter took place. See Jeffrey Toobin,
A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President
, p. 158.

In 1975, as Jeffrey Rosen first reported:
Jeffrey Rosen, “Rehnquist the Great?”
Atlantic Monthly
, April 2005.

CHAPTER 10: THE YEAR OF THE ROUT

the riches he extracted:
On Sekulow’s financial arrangements, see Mauro, “Jay Sekulow’s Golden Ticket.”

an anonymous informant slipped:
On the history of “partial birth” legislation, see Chris Black, “The Partial-Birth Fraud,”
American Prospect
, Fall 2001.

CHAPTER 11: TO THE BRINK

a dozen roses for him:
Biskupic,
Sandra Day O’Connor
, pp. 167–68.

Stoessel’s party:
See Jeffrey Toobin,
Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election
, pp. 248–49; Evan Thomas and Michael Isikoff, “The Truth Behind the Pillars,”
Newsweek
, Dec. 25, 2000; Jess Bravin et al., “For Some Justices, the Bush-Gore Case Has a Personal Angle,”
Wall Street Journal
, Dec. 20, 2000; Biskupic,
Sandra Day O’Connor
, pp. 308–9.

“
Pool hustler”:
Biskupic,
Sandra Day O’Connor
, pp. 31, 293.

CHAPTER 12: OVER THE BRINK

many clerks think they are more important:
For a realistic and moderate view of the role of law clerks, see Emily Bazelon and Dahlia Lithwick, “Endangered Elitist Species,”
Slate
, posted June 13, 2006,
http://www.slate.com/id/2143628/
, which discusses Todd C. Peppers,
Courtiers of the Marble Palace
, and Artemus Ward and David L. Weiden,
Sorcerers’ Apprentices
.

“
Please make sure”:
For details of the actions of the Bush and Gore teams in connection with
Bush v. Gore
, see Toobin,
Too Close to Call
, chs. 15–16.

CHAPTER 13: PERFECTLY CLEAR

a Ginsburg clerk:
David Margolick et al., “The Path to Florida,”
Vanity Fair
, Oct. 2004; Toobin,
Too Close to Call
, chs. 15–16.

how votes are counted after the election:
See, e.g., Jack Balkin, “
Bush v. Gore
and the Boundary between Law and Politics,”
Yale Law Journal
110 (2001): 1407.

as innumerable commentators subsequently pointed out:
For a recent case,
Bush v. Gore
has already generated a vast literature. See, e.g., Bruce Ackerman, ed.,
Bush v. Gore: The Question of Legitimacy
, New Haven: Yale University Press, 2002; E. J. Dionne Jr. and William Kristol, eds.,
Bush v. Gore: The Court Cases and the Commentary
, Washington: Brookings Institution Press, 2001; Richard A. Posner,
Breaking the Deadlock
, Princeton: Princeton University Press, 2001; Cass R. Sunstein and Richard A. Epstein, eds.,
The Vote: Bush, Gore & the Supreme Court
, Chicago: University of Chicago Press, 2001.

The journalists’ confusion was understandable:
In fairness, I should disclose that I was one of those reporters trying to translate the opinion on live television.

The recount of the 60,000 undervotes:
After the election, the most comprehensive examination of the ballots in Florida was led by eight news organizations, including the
New York Times
and the
Washington Post
, and conducted by the National Opinion Research Center. See
http://www.norc.org/fl/voting.asp
. The “media recount,” as it became known, examined all 175,010 ballots in the state that were undervotes or overvotes and thus not counted in the final tally. Under all of the contemplated scenarios, if a full statewide recount had been conducted, the media recount showed that Gore would have won Florida; if the Court had allowed the recount to proceed in just the disputed counties, according to this recount, Bush would have won. As with the official election results, the margins between the candidates in the media recount were tiny, just a few hundred votes; moreover, this recount did not review the already counted ballots, nor could it capture the uncertainties of vote counting in the real world. In short, it is fair to say that there is no way of knowing with certainty whether Bush or Gore would have won if the Court had allowed the recount to proceed.

CHAPTER 14: “A PARTICULAR SEXUAL ACT”

where a Supreme Court justice could mingle:
Anne-Marie Slaughter,
A New World Order
, ch. 2.

an unusual conversation with one of his law clerks:
John C. Jeffries Jr.,
Justice Lewis F. Powell Jr.
See also Joyce Murdoch and Deb Price,
Courting Justice: Gay Men and Lesbians v. the Supreme Court
, pp. 272–75.

CHAPTER 15: “A LAW-PROFESSION CULTURE”

“
He always had a book in front of his face”:
Talbot, “Supreme Confidence.”

Black Hawk air combat helicopters:
David G. Savage and Richard A. Serrano, “Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows,”
Los Angeles Times
, Feb. 5, 2004; Adam Nossiter, Associated Press Wire, Feb. 5, 2004.

CHAPTER 16: BEFORE SPEAKING, SAYING SOME THING

O’Connor was assigned to write the opinion:
See Biskupic,
Sandra Day O’Connor
, pp. 205–8; David G. Savage,
Turning Right: The Making of the Rehnquist Supreme Court
, pp. 239–43; Lazarus,
Closed Chambers
, pp. 291–99.

grade-point averages:
Nicholas Lemann, “The Empathy Defense,”
New Yorker
, Dec. 18, 2000, p. 46.