The Nine: Inside the Secret World of the Supreme Court | Jeffrey Toobin | Talks at Google

There are certain journalists that you learn to trust and respect when they report on the Supreme Court, and Jeffrey Toobin is one of those few names. Jeffrey graduated magna cum laude from Harvard and from Harvard Law School. He was editor of the Harvard Law Journal. As you saw in the clip that we watched earlier, he had some involvement with the O.J. simpson trial. He also had involvement with Iran Contra and was a US Attorney for Brooklyn. Assistant US Attorney for Brooklyn. So without further ado and to get this program underway, Jeffrey Toobin, thank you so much.

Thank you all and what a treat to be here. Now, I promise I will talk about the Supreme Court, but I hope you.

Know, I have a Google history as.

Well, that earlier this year, I guess.

It was this year I went out to Mountain View and I did a piece about Google Books.

And anyone here work on Google Books have anything to do with Google Books. All right, good. Anyway, it is so interesting how obsessed.

People are with Google. I write about legal subjects all the time.

I have never had a reaction to.

A story like I had about that. I am a Supreme Court nerd. And so I know the Supreme Court.

Blogs, all these blogs that I didn't.

Even know existed about Google that I sure you all know about. You know, I was the subject of.

Debate and it was really, I had.

So much fun doing that story because it was so different from what I usually write about.

And frankly, it was so great to be at Google.

You know, I usually, I did the typical, you know, Google thing. You know, as soon as you get there, you drink like seven free smoothies and, you know, but, you know, now that I'm here, I learned that, you know, you don't have to inhale all the free food all the time.

But, you know, I just think you folks are very fortunate to work at.

This company that is so much at the cutting edge of how things are changing in the world. And it was just such a pleasure to meet with your colleagues out there who are uniformly incredibly intelligent and full of excitement and ideas about Google Books, which is a wonderful product that may actually be completely illegal, but that's what made it interesting. I don't think it's completely illegal, but.

Anyway, so yes, but I am here to.

Any of you want to talk about.

Google Books, I'd be happy to do that.

But I'm here to talk about the nine my book.

And it's really been wonderful to write.

About the court because everyone has some idea of how important the court is.

But people are sort of vague about.

Who the justices are, what they really do and why their work is significant.

And that applies even to the Justices themselves, who are aware that the Court.

Is a subject of some mystery. I'll give you an example. David Souter and Stephen Breyer are often mistaken for one another.

Now, if you know what they look.

Like, they don't really look much alike. They're both kind of, you know, upper middle aged white guys, but they are not really very similar. But you know, they are mistaken for each other. And once, not too long ago, just a suiter who, as he often does, was driving from Washington to his home in New Hampshire, he stopped to get.

Something to eat in Massachusetts. And he was sitting there and a.

Couple came up to him. And the man said, you're on the.

Supreme Court, aren't you?

And he nodded and he said, you're Stephen Breyer, right?

And the guy said, well. And Justice Souter said he didn't want.

To embarrass him in front of his wife. So he said, yes, I'm Stephen Breyer.

And so they chatted for little while. And then the fellow asked Souter a question he didn't expect. He said, so, Justice, Justice Breyer, what's.

The best thing about being on the Supreme Court?

And he thought for a minute and.

He said, it's the privilege of serving with David Souter. It's a true story.

Now, I wish I could tell you.

It'S only civilians who make these mistakes. I, you know, I'm an alleged Supreme Court expert.

And if you recall, when President Bush was inaugurated for his second term, it was the first time that Chief Justice Rehnquist appeared in public for a long time.

He had been diagnosed with cancer. He hadn't been in court.

So there was a lot of drama.

Over how he would look.

So CNN decided to send me down.

To be at the inauguration and talk about how the Chief looked. And so the moment came and the justices all walked down on the Capitol steps. And Wolf Blitzer, who was anchoring, said.

So, Jeff, how does Chief Justice Rehnquist look?

And I sort of looked at him 100 yards away and I said, it.

Looks okay to me, Wolf.

And the coverage went on.

And then about 30 seconds later, I.

Realized I had been looking at Anthony Kennedy.

So I realized in Washington, the COVID.

Up is always worse than the crime.

So I waved my arms, I said.

Wolf, I made a mistake. That was Anthony Kennedy, not Chief Justice Rehnquist.

And I just tell that story to illustrate that even those of us who.

Know about the Court sometimes don't know exactly what they look like. But the real reason I wrote the book is that the Court is at a tremendous turning point.

The Court, I think, and to recognize.

What kind of turning point it is, you have to go back to the.

60S, because the 60s was the last.

Time the Supreme Court was a unified ideological group. That the 60s were a time when the Court was a very liberal institution. You really had seven liberals on the Court at one point.

And then something extraordinary happened.

In the space of 19 months, four justices left.

And Richard Nixon, who wasn't President for.

Very long, he was only President for five and a half years. You remember, there was some unpleasantness, and he had to leave early.

Richard Nixon got to appoint four justices.

In the space of 19 months.

And a lot of people thought that would shift the Court way to the right, but in fact, it didn't. And starting from 1972, with the appointment.

Of Lewis Powell, who was really kind of the center of the Court for a long time.

From 1972 until 2005, 33 years, the.

Court had a swing vote.

The Court was evenly divided.

And from 1972 until 1987, it was Lewis Powell, and then Powell left.

And at that point, it was Sandra Day o'. Connor.

And o'Connor really controlled the outcome of the Court for quite a number of years, basically from 87 to 2005. The situation now may be about to change.

We're in a situation now where we.

Have four very conservative Justices. Souter, Justice Roberts, the Chief Justice, Justice Alito, Justice Thomas, and Justice Scalia. Four moderate to liberal Justices, Justice Souter, Justice Stevens, Justice Ginsburg, and Justice Breyer. And in the middle, Anthony Kennedy. Anthony Kennedy is the current swing vote, but Anthony Kennedy is a much more conservative justice than o' Connor was. So the center of gravity has really shifted.

And one of the things that I think is really worth noting is that.

The Rehnquist Court, which was. It was really an extraordinary period between 1994 and 2005. For those 11 years, you had the same nine justices on the Court.

That's the longest period in the history.

Of the Supreme Court that the same nine Justices served together.

And a couple of facts about the.

Rehnquist Court that people don't really know.

But one is the Justices got along.

With each other very well.

And this is historically somewhat different from.

The history of the Court.

There have been times when the Justices got along horribly. I don't know how many of you.

Are unfortunate enough to know. Maybe, you know, Supreme Court buff. There was a justice named James McReynolds who served from 1914 to 1941, who.

Was such an anti Semite that he used to get up and leave the.

Conference room when Justice Cardozo or Justice Brandeis spoke. I mean, that's how horrible the relations were. Justice Douglas, who was on the Court for many, many years at one point.

In the 50s, had a terrible car.

Accident in the State of Washington and he drove off a cliff.

And the first question people in Washington.

Asked was, where was Felix Frankfurter at the time? Because they hated each other so much, they thought Frankfurter wrote him off the road. That is not the way things were in the Rehnquist years. In the Rehnquist years, the Court got along very well. And one big reason they got along very well. And maybe your superiors at Google could take a lesson from this. Chief Justice Rehnquist engineered a dramatic reduction in the Court's workload. The justices during the 80s used to decide 150 cases a year. And the Supreme Court, unlike the rest.

Of us, gets to decide how much work it does.

They decide how many cases to accept, you know, grant the writ of certiorarion every year. And Rehnquist really worked hard to reduce the number of cases.

So they went from 150 cases a year to.

To about 80 cases a year.

80 cases divided by nine justices divided by four law clerks apiece. I mean, it's not the toughest job in the world.

I mean, it's a very intellectually demanding job, but it is a job where they got along very. Where it was easier to do than it had been in the past. And the other point about the Supreme Court, and I don't want to speak for too long without taking your questions, but the other point about the Supreme Court is the incredible significance historically of Bush versus Gore. Bush versus Gore, I think will go down in history as one of the most important opinions in the Court's history. And you know, it's the difference between George Bush being President and Al Gore being President. I mean, it is just of enormous significance, but even more important than, or not more important, but as important as the decision itself were the implications of the decision. It's really useful to divide the Supreme Court term of Chief Justice Rehnquist into pre Bush v. Gore and post Bush v. Gore, because after Bush v. Gore, Justice Kennedy and Justice o' Connor moved substantially to the left that they reacted. They didn't like the way the Court had been portrayed as a bunch of political hacks. Justice Kennedy, interestingly, became particularly interested, even obsessed with international travel.

Just weird how the quirks of the.

Justices have significance Justice Kennedy, when he was nominated to the Supreme Court in 1987, still lived in the house in Sacramento where he. Where he grew up. That's how provincial he appeared.

But once he got on the court.

He started traveling around the world, spending.

A great deal of time with judges from other countries.

And he was influenced by those judges from other countries, particularly on the issues.

Where the United States is out of.

Step with, especially Europe, the death penalty. All those countries have banned the death penalty and gay rights. And he moved to the left on those issues. But the even more dramatic change took place with Justice o'. Connor. Justice o', Connor, I think, is really one of the large figures in American history, just a woman of enormous importance. I say in the book, and I defy anyone to disagree with me, that she's the most important woman in American history in terms of her influence.

And what happened was she realized that.

The Republican Party that she grew up in, where she was a state senator in Arizona, the Barry Goldwater Republican Party, was not the Republican Party of George W. Bush. She came from a libertarian tradition. She came from a tradition where it was limited government.

And she saw that George W. Bush was not only different from his father.

But different from her idea of what the Supreme Court, what conservatism ought to be. She didn't like the way the war on terror was being conducted. She didn't like the way we had alienated our allies. She didn't like the Iraq war. She was especially offended by the Terri Schiavo case, which is, I think, as we look back over the past seven years, is going to be seen as a much bigger turning point in recent history than is currently acknowledged.

And if you look at the court.

From 2000 to 2005, there were a.

Series of very liberal opinions striking down.

The death penalty for juveniles, striking down the death penalty for the mentally retarded.

2003, overruling.

A relatively recent opinion called Bowers v. Hardwick, where the court in Lawrence v. Texas said that consensual sodomy between gay people cannot be criminalized. That was Justice Kennedy's opinion, really remarkable opinion.

The striking down the partial birth abortion.

Law in Nebraska, preserving affirmative action in the University of Michigan case, and in a series of cases, really remarkable during wartime, overruling the Bush administration on the war on terror. All those decisions were after Bush v.

Gore, I think, all of them.

Justice o' Connor was in the majority. She was completely alienated. But here's where the personal side of the equation takes over. Justice O' Connor in 2005, was as healthy and vigorous a 75 year old as you will find anywhere. But her husband had been diagnosed with Alzheimer's disease and she decided that she was not going to leave him to take care of himself. So she decided she was going to leave the court to take care of him. And it broke her heart to do it, but she did.

And as you recall, her leave taking.

Took a very long time because first President Bush nominated John Roberts to succeed her.

But then within a couple of months, Chief Justice Rehnquist died. Roberts was named to replace Rehnquist.

The o' Connor resignation was placed on hold. Then there was my personal favorite, the Harriet Myers fiasco which delayed things and only then did was Samuel Alito nominated and replaced her. But something tragic happened in the interim.

During that long period, Justice o' Connor's.

Husband declined precipitously as sometimes happened with Alzheimer's disease. And he was beyond her help, didn't recognize her anymore. So Justice o' Connor was faced within a space of months with the loss of both her seat on the Supreme Court to a President she had come to disdain and the loss of her beloved husband. And you know, it is a sad postscript to a remarkable career by Justice o', Connor, but an illustration of how the personal and the political sometimes merge on the Court.

Before I take your questions, let me.

Just call your attention to the last term at the Court, the term that just ended in June. The Court really took a dramatic turn to the right. We saw how the Alito and Roberts nominations or confirmations changed the Court.

You know, we saw in the school.

Desegregation cases is really the beginning of the end of affirmative action. The idea that the government can no longer use race at all as a criterion for picking anybody for anything. We saw the partial birth abortion case or late term abortion case where reversing.

A decision from 2000.

If not by name, the Court said Congress could ban those late term abortions.

We saw.

A series of cases where on the death penalty, on separation of church and state, the Court is moving to the right.

And just looking ahead, the stakes of.

The 2008 election appear very high as far as the Court's concerned because there are three Justices who are very likely to leave soon. John Paul Stevens, David Souter and Ruth Ginsburg. Justice Stevens is 87 years old. Now I caution you to say that Justice Stevens older brother Bill Stevens at age 90 is still practicing law in Florida. But you know, 87 is 87. Justice Ginsburg is 76. Justice Souter is 70. Not very happy on the court, all three of those liberals are likely to leave. If a Republican replaces them, we will probably be in a situation like we were in the 60s, a unified ideological court, except conservative instead of liberal.

But, you know, frankly, that's how the system is supposed to work. Eleven of the last 13 nominations to the Supreme Court have been Republican presidents. It's sort of remarkable that the Court isn't more conservative as it is.

But that's really sort of the message of the book, which is that the 2008 election is very significant for the court.

And with that, let me answer some questions.

Can you use the microphone?

Please use the microphone.

Let me get my wall.

Please. Thanks for coming.

Thank you.

So my question, I think, is germane to being at Google, which is. So I just graduated from college and I TA'd the introductory computer science class there. And one of the things I noticed was that technology, even for really smart people, is not that learnable of a subject all the time.

Your students were stupid, in other words, you're saying?

No, they were just not. They were smart students, but not necessarily good at understanding computers.

Right. Okay.

And I was wondering, in light of, you know, our migration towards a more technological world with cases like the Grokster case and things about that are in lower courts about, say, like, digital video recorders, whether you think in some way understanding of technology should be wrapped into our thoughts about what the qualifications of a Supreme Court justice or a judge in general should be and whether you think the current court has that sort of understanding?

You know, that is a really great question. And I think, you know, it's interesting. In 2000, when I was writing about Bush v. Gore.

I learned from some.

Of the law clerks that in the.

Entire United States Supreme Court, there was.

One Internet connection, there was, like, one.

Computer that, like, all the chambers had to share. And it was, interestingly, one of the. I believe this is not a.

This is. You probably all, you know, Larry Lessig, the professor at Stanford, he, I believe, was clerking at the time, and he.

Made a presentation, or, no, this was.

A little earlier than 2000.

He made a presentation to Justice O'.

Connor about the Internet and how it could help the law clerks do their work.

And typical of o', Connor, she said.

Okay, we're going to do this tomorrow. And she got the place wired, like, practically overnight.

So, you know, the court does change. But I mean, it's interesting that you.

Mentioned the Grotzker case, because that, I think is one of the. Is a case that I write some about in the court in the book, but that case was written by David Souter. Let me just tell you a little about David Souter. David Souter is a figure out of the 19th century. David Souter does not have a television.

Does not have a television, does not.

Have a computer, uses a fountain pen to write.

He does not like electric light in his chambers. He moves his chair to catch the.

Sunlight, around to read over the course of the day.

When he arrived at the Court, he had never heard of Diet Coke. He went to a wedding in 2003.

Where someone referred to the Supremes, Diana Ross, Anne.

He'd never heard of them either.

I mean, this leads a very isolated life.

However, he is so brilliant and so adaptable and works so hard. He wrote the Grotzker case. He wrote the decision about file sharing, which I think is one of the Court's generally regarded more successful attempts to deal with the issue of technology. So, you know, I am not, I.

Am less worried about that problem.

You know, I believe that there are.

Lots of smart people who are, who are simply technologically inept.

But I think as the generations change.

At the Court, it will simply be impossible to be an intelligent person and to be a total technological illiterate.

And I think the kind of people.

Who will be on the Court will likely be.

In the nature of Souter, which is, even if they don't know.

It, instinctively can learn it. And I am not too worried about that problem.

My point, sorry, is just that there's a difference between, say, knowing how to use Microsoft Word and understanding the internals of technical systems, which is actually what's.

Being ruled on in a case like me, for example. The former, I'm very good with Microsoft Word. Understanding the inside. I don't know what happens in the inside of the computer.

So, I mean, actually, I think that Grokster was. Personally, I thought Grokster was good, a good decision, and it did show some real understanding of how the system worked. But my question was whether we should really be building technical knowledge into our societal view of what constitutes a Supreme Court Justice.

You know, I think that's a good idea, ideally. I mean, I think given the importance.

Of technology in the world today, there is. I mean, we can only be better off with Supreme Court Justices who have a more than basic understanding of technology.

You know, I'm wary of sort of.

Establishing a litmus test, and I don't think you're going to have senators vote against someone because they're not technologically literate.

But, you know, the more the better.

As far as I'm concerned.

Thank you.

Thanks.

Yes, sir. Hi.

I remember when I was in my teens, my father talked, he was a law professor, talking about the Supreme Court and what it does to people in terms of making them far less corrupt than they were before. And he talked in particular about Warren, who, of course, was the governor of California, which is not a job you get if you don't understand corruption up, down and sideways, especially not in the 50s. So, you know, he knew all about where the bodies were buried and, you know, and where the ballot boxes were stuffed and everything else that happened to them. And he said, it's a strange thing, but as soon as people get appointed to the Supreme Court, they suddenly become honest.

Well, I mean, I don't know. Maybe I'm a little less cynical than that. I mean, I think most of the.

People who've been accorded appointed to the court, I mean, everyone are honest in trying to really do their best. I don't think they're on the take or corrupt.

Isn't that a little surprising?

Sorry?

Isn't that a little surprising considering that most don't come out of public life?

Gosh, no.

I mean, I don't think people are corrupt. I mean, I don't think corruption is widespread. I mean, I do think that, you know, people have ideological points of view, and, you know, I think there's a.

Mythology about the court that, you know, they just do law, they don't do politics. I mean, I think the two are very much merged, and that really is what the nine is about. And certainly if you look at a case like. Like Bush v. Gore, which I think is a very low point in the history of the court, and I think a rather cynical endeavor by the court.

I wouldn't describe it as corrupt.

I would simply say it's more partisan. And, you know, maybe I'm just, you know, slicing the baloney a little thin here.

But I mean, I think it's.

I think there's a difference.

I mean, you know, I don't believe.

You can look at issues like, should states be able to ban abortion?

I don't think that has a right.

Or wrong answer under the Constitution. How you look at the Constitution determines the answer to that question, and people.

Look at it differently. So I don't think it's a matter.

Of corruption or dishonesty as much as.

It is ideology, people.

This is a. The court is a very ideological place, and the decisions reflect. Reflect it.

Okay, thank you.

Thank you.

So I remember in the Bork hearings, everybody that I was talking with was talking about them all the time and getting very passionately involved in discussing the Constitution and all the rest of it. And it really was a widespread conversational topic. And then Robertson Alito, nothing like that. Do you think that's society changing between that, or do you think that's like Republican tactics getting better at choosing the right persons to put up?

I think it's a combination of things. I mean, it's a very good question.

I mean, also, you have to look.

At the political setting of the time. The Bork hearing took place in 1987, when a Republican senator nominated a very conservative justice in a Senate that was controlled by Democrats. So from the day Bork was nominated, it was clear that the Democrats had a chance of defeating him. The Robertson Alito nominations took place before 2006, when the Republicans controlled the Senate. And there was not, I mean, outside of a filibuster, which is very hard to sustain against a Supreme Court nomination, there really wasn't much chance to stop those nominations.

So, you know, I think the horse.

Race plays a part as well, which is that, you know, we in the.

Press get hyped up about issues where.

The outcome is in doubt. And with Robertson Alito, it seemed to most of us, and it certainly seemed to the senators themselves, that the result was a foregone conclusion.

But also, I mean, you had to.

Look at the setting as well. Robert Bork was nominated to fill the seat left by Lewis Powell, who was the swing vote.

You know, the fate of Roe v.

Wade very much appeared to be hanging in the balance in the Bork hearings.

And I think it was. And Kennedy wound up voting to support.

Roe, where.

Bork certainly would not have.

So I think all those factors played into it.

But, you know, in the right circumstances.

I think a Supreme Court nomination hearing could be still the stuff of high drama.

You mentioned Roe v. Wade, and you also mentioned a litmus test a little bit earlier, and I was wondering what you thought about how the, at least for Democratic presidents, that's kind of like a defining factor in how they choose a justice to appoint to the court.

Well, I mean, you know, for better or worse, I think abortion is the.

Defining constitutional issue of our lifetime.

And, you know, whether Roe v. Wade.

Is right or wrong. You know, the Democratic Party is the.

Pro choice party and the Republican Party.

Is the pro life party. I mean, that is the difference difference between the two parties. And yes, there are other differences, but that is one of the absolute core differences. And.

I think Supreme Court nominations reflect it. One of my problems with the Whole process.

One of the reasons I think the process is kind of a joke is.

That the Senate allows nominees to not answer the question of whether they think Roe versus Wade is correctly decided. You know, all 18 members of the.

Senate Judiciary Committee, when they're running for.

Office, the voters expect they're going to.

Say, well, how do you stand on Roe v. Wade? And they say, I'm for it or I'm against it.

But then a Supreme Court nominee comes.

In front of them and says, well, I can't answer that question.

But he's the. He's the only one who has any.

Say over whether Roe v. Wade gets overturned.

But, you know, as Senator Arlen Specter likes to say, Supreme Court nominations are.

About saying as little as the nominee can possibly say while still getting confirmed. And as long as the Senate puts.

Up with that, that's what nominees are going to do.

I think one of the really intriguing things about the Supreme Court is that, you know, you've got these personalities. You don't really see them out in the public eye very much. You know, apparently Scalia is a great guy to hang out with, you know, even though he may totally not agree with some of his colleagues. Can you give us a bit of, like, behind the scenes as to how does the personalities come out and when they debate and like, what. What really happens that we don't see in the public forum? Because just the way the whole thing's set up.

Well, you know, one of the, one of the.

I mean, that question is really at the heart of what my book is about, because it's really about what the interactions of the justices are like and what they are like personally. And.

It'S interesting.

They are very cordial to each other. They are very correct, polite. They are not particularly close friends. Rehnquist set the tone of a very businesslike relationship in the court, but not one that they spend much time together outside of court. They all have their own hobbies. You know, Kennedy travels the world. Stephen Breyer rides his bike and goes bird watching. Scalia travels the world finding the most luxurious resorts where he can pay, you know, get paid to give speeches. I mean, he likes to live the good life. Clarence Thomas has maybe the most interesting hobby of them all. Clarence Thomas, about six years ago, adopted a great nephew who was about eight years old at the time. And.

For entertainment, he bought this gigantic.

Rv, which he calls the bus, this huge rv.

And he and his family travel around the country, usually in the south, spending.

The night in Walmart parking lots, because.

I don't Know how many of you folks know this, but Walmart allows people to park RVs in their parking lots overnight. And that's what Thomas and his family.

Does and they go to NASCAR races and it's just kind of a wonderful sight. And the other thing Scalia does is.

Is, you know, Scalia's a, he's from Queens, he's from New York. But he, when he was, the judges.

Divide up, the justices divide up the country by region and Scalia got the south. And you know, he started being invited down there and he got very interested in hunting.

And this led to his famous duck.

Hunting trip with Vice President Cheney, which became somewhat controversial.

And I write about this in the book.

I actually, so I wondered in my journalistic way, well, what the heck happened on this duck hunting trip? Now I am a city boy, I don't know anything about duck hunting.

And I learned that it rained the.

Whole time that Scalia and Cheney were in Louisiana.

But I thought, you know, ducks, right, they like rain.

Isn't that. But no, apparently that's not true.

It was so rainy, it was too wet even for ducks.

And it was horrible duck hunting for the trip.

So I mean that's, that's some sense.

Of what the justices are like. But they don't spend a lot of time together. Yes, sir.

So I wanted to ask about filming Supreme Court proceedings. Is it all of them who don't.

Like it or are there particular ones who don't like it?

Well, there's. Justice Souter famously once said at a congressional hearing, there will be cameras in the Supreme Court over his dead body. So that's one. I mean, I think it is totally outrageous that Supreme Court nomination, Supreme Court proceedings are not televised. All of the arguments against cameras in the courtroom, which I don't particularly buy, but even the arguments against them, that witnesses would be intimidated, that it would affect the juries, none of them apply in the Supreme Court.

The Supreme Court, they're a bunch of grown ups.

They don't have to, you know, they're not going to be intimidated.

But you know, the Supreme Court likes their privacy. They like to be able to walk through airports unrecognized.

They don't want to be, they don't want to have their arguments reduced to sound bites.

And they're the Supreme Court, so they get to decide. But I think it's outrageous. And one of the things that I think would.

Reflect well on the court is the television broadcast of arguments because.

I don't know how many of you.

Have ever seen a Supreme Court argument. I certainly suggest that you, you go at some point.

The justices are a remarkable group.

Now, there are eight justices who ask a ton of really hard questions. Now, as you know, Clarence Thomas never talks in oral argument. And in fact, this past year he.

Set a record where he went from.

The first Monday in October until the end of June, more than 100 oral arguments.

And he didn't ask a single single question, which is sort of, you would.

Think almost by accident he would say something, but he didn't.

But the other eight ask really hard.

Questions, often because they are trying to.

Talk to the other Justices, not because.

They really want to know the answer.

But they give speeches to the lawyers in an effort to try to lobby their colleagues.

It's really a very interesting thing to do. And they're very smart. Yes, sir.

Or.

You mentioned them being very smart.

And there are all these other characteristics.

That they get raked over the coals.

When they're being nominated and so forth.

But in your opinion, what characteristics really.

Make for the most successful justices?

Wow, what a great question. What characteristics make for the best justices? I mean, obviously just sheer intelligence is very important. I mean, this, this is a court that the work product is written opinions and you have to write good ones.

And people who have, I think, a.

Combination of real world experience with judging and litigation expertise.

I'll tell you an interesting thing about.

The current nine justices.

This is the first time in the.

History of the Supreme Court that all nine justices offices were judges previously. That's never happened before.

The court that decided Brown void of.

Education in 1954, not one of those judges had ever been a judge before. Earl Warren was governor of California, as was mentioned.

And I think the court is out.

Of whack in that respect.

I think it would be better if.

They had a broader range of experiences. And I think that goes to the technology issue as well. Here's a prediction for you, for what it's worth. If Hillary Clinton is elected president, and obviously that's not a sure thing, but it's not out of the question.

I think her first appointment to the.

Court will be Barack Obama. I'm not kidding. I think that's, you know, he's a guy, a brilliant guy. President of the Harvard Law Review, constitutional law professor, African American. He's only 48. He will be only 48 years old. So he'll be able to serve a long time. And in the perfect Clinton political calculus, it'll get him out of the way. So I think you heard it here first. Yes, sir.

Yeah. I wonder if you could talk a bit about sort of the future of the institution or the way we perceive it. You know, I reflect back when I was a kid from things like the presidency. Everybody had great respect for the president, even when you hated what he was doing or thought he was totally wrong in what he was doing. And then, of course, we had Nixon and Watergate, and it's been downhill ever since. God knows if the presidency will ever become a respected office again. We had sort of similar things with the military. They took a real bite in Vietnam. There was Milei, but basically got over that. Now Abu Ghraib and what we're doing in Iraq. I don't know if they're ever going to, if we're ever going to be able to look to the military with the same kind of respect we did in the past. The court was just this one really special sort of totally pure operation. There were a couple bad guys every once in a while, but everybody knew that. And then the Gore case came in. Can the court ever recover from. Well, we heard here an earlier comment here. You saw it sort of the way the court was being spoken about by one of the earlier questioners. Can the court ever recover from the Gore case? And if so, what do you think it'll take?

Well, you know, this was, your question.

Was of great concern to the justices themselves. I mean, they came away from Bush v. Gore rather shell shocked and disturbed about the place of the Court in public life. And I think that worry was one factor that pushed Kennedy and o' Connor to the left after Bush v. Gore, because I think they wanted to sort of even out.

I don't want to put it too.

Cynically, but wanted to even out the score a little bit. I'm a little more optimistic perhaps than your question reflects. You are.

I think the Court is still held.

In rather high esteem by most people. Certainly public opinion polls show great respect for the poll. A lot of liberals, a lot of Democrats were very upset by Bush v. Gore. They will never forgive the court. But I think the fact that the court, that some decisions in subsequent years went in the other way bound up some wounds.

But the world is a less trusting.

Place than it was before the Nixon years. All institutions get a level of scrutiny that they didn't used to get.

But I also think the court has stood up to that scrutiny fairly well.

And obviously this is a behind the scenes book and this is, you know, a warts and all profile.

But I don't think it certainly was.

Not intended to give people the impression that the Court is somehow a shoddy.

Or bad institution I come away from. I have a lot of admiration for the Court and I don't think the.

Court is nearly in as much trouble as the Presidency, the military or Congress in terms of its reputation. Sure. Two more questions.

You mentioned that the next President will get most likely to appoint at least three Justices. A hypothetical situation could be a Democrat becomes the President, he appoints three liberals, he replaces three liberals by three liberal Justice Justices. Would that be a better situation versus if a Republican President appoints three conservative Justices and that prompts some of the Justices to change their, you know, current centrist or rightist view to leftist? I mean that. Wouldn't that be slightly better than, you know, current maintaining the status quo.

I disagree with the premise of your question, which is suggests that there is any possibility that the Justices are going to change their orientation on the Court.

Well, that is somewhat more, that's a.

Little bit of a myth how much it's happened. Most Justices stay more or less stay where they've been and certainly the kind of dramatic year change you're talking about almost never happens.

But if you look at the last.

Five appointments to the Court, Souter, Thomas, Ginsburg, Breyer, Roberts, Alito, they've all pretty.

Much been just as expected.

And I think the only way you're going to get liberals on the Court is to have a Democrat appoint them. They're not going to materialize, but they're.

Only going to replace the three liberals.

That's right.

And I think the status quo will remain more or less intact.

But I don't think any of the Justices are going to change, certainly not dramatically. Yes, ma'.

Am.

So I have a two part question. So based on the results of the 2008 presidential election, do you think the future makeup of the Court is as clear cut as a Democrat wins? So the Court will become more Democratic or, or more liberal rather. And then if a Republican wins and more conservative, and also if the Court will remain conservative or get more so in the next four years. It's sort of hard to understand from the media at least the attitude of the Court towards precedent. So liberal decisions of 60s 70s and onward, what do you think is going to happen to those, at least the major ones like Roe v. Wade?

Well, I think the first part of.

Your question is a lot easier than the second part. The first part is, is the future.

Of the Court will be determined by.

One thing, who wins presidential elections.

If a Democrat wins, you'll get one kind of court.

If a Republican wins, you get a different kind of court, end of story. And, you know, I'm sorry to be simplistic, but I think, you know, a simple your question has a simple answer.

Precedent is a lot is a lot.

Harder to analyze because all the justices talk about the importance of precedent in.

The abstract, but when you see their actual attitudes towards cases, the decisions they.

Don'T like, they're not so respectful of.

And one of the things that I.

Think was less than admirable about this past term by the Court was the conservative majority.

In several cases really, in.

Effect, overruled some previous decisions, but didn't acknowledge that was what they were doing. They were pretending to respect precedent without really respecting it, in fact. And, you know, I prefer a more intellectually honest approach to that.

But, you know, we'll see. Anyway, thank you all for coming. What a treat to be here.