< Justice Is ... Mute

Transcript

Friday, October 05, 2007

BOB GARFIELD:
This is On the Media. I'm Bob Garfield. This week marked the opening of the Supreme Court's 2007-2008 term. From First Monday in October to the close of the term, court-watchers and commentators attempt to parse the few public statements that the courts makes to divine how the court will rule, or how it did rule, on controversial subjects of the day.

This year, though, first Monday is accompanied by two books that might lift the veil on the inner sanctum -- My Grandfather's Son, a memoir by Clarence Thomas, the most silent of all the justices, and The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin.

Toobin is a staff writer for The New Yorker and senior legal analyst for CNN. He joins me now. Jeffrey welcome back to On the Media.
JEFFREY TOOBIN:
Good to be with you.
BOB GARFIELD:
Court watching, I guess, is something like the old art of Kremlinology. You have to look for hidden cues to divine motivations and internecine conflict and so forth. Now, you're a legal affairs correspondent but not necessarily a Supreme Court beat reporter. Did you have any difficulty breaking the code?
JEFFREY TOOBIN:
A lot. [LAUGHS] It's very hard to report on the Supreme Court other than to read their opinions, which is, by and large, what the justices would prefer that you do. And Justice Stevens often makes the point that, look, we're the only branch of government that actually explains everything we do and why.

And I can see his point, but I think the Supreme Court is too important an institution to simply read its press releases, to put it another way. So I've always approached the court as an institution that is as complex and politically complicated as Congress or the White House.
BOB GARFIELD:
In interviews, you've been pretty adamant about not revealing who said what. And, of course, the Supreme Court does have a tradition of being the most tight-lipped of the three branches of government.

But, without mentioning names, how do [LAUGHS] you go about even going off the record with justices who typically practice, you know, something like judicial omerta?
JEFFREY TOOBIN:
Well, it's not like covering Congress, which I've also done sometimes, where you can catch someone in a hallway and sort of ambush them with questions. But there are justices who are interested in getting their views out.

I mean, it is on the record, for example, that I did a piece about Stephen Breyer in The New Yorker when he had a book coming out. Justice Kennedy allowed me to go with him to Salzburg, Austria, where he spends every summer, and talk about how foreign law and international law influenced him.
BOB GARFIELD:
There's two you've named, and you apparently spoke to Sandra Day O'Connor, the retired justice. But among the other seven sitting justices, did you at least have conversations with all of them?
JEFFREY TOOBIN:
I did not have conversations with all of them. I did much better than I expected. I think there is some thawing that has gone on in recent years. But, one underestimated factor is the book The Brethren, which came out in 1979, Bob Woodward and Scott Armstrong's really phenomenal book about the court traumatized the court. The court really was shocked by how much inside detail there was and how the theme of the universal hatred of Chief Justice Warren Burger was evident in the book. And I think it took quite a few years for that trauma to wear off.
BOB GARFIELD:
I must say, at the time, it was breathtaking to me how deep behind the lines they penetrated, mainly, it seemed by speaking to every law clerk who had ever served at the Supreme Court or anywhere else. Did you do approximately the same thing to get inside the heads of the justices?
JEFFREY TOOBIN:
Well, I certainly tried. I mean I interviewed a lot of law clerks, I think 75. But that 75 is the number who talked to me. I tried to talk to a lot more. And again, as a result of The Brethren, the law clerks are now required to sign non-disclosure agreements. So I think it's harder to talk to law clerks now than it had been when Woodward and Armstrong were doing it.
BOB GARFIELD:
Well, what does motivate a justice or a law clerk sworn to secrecy to speak off the record or on?
JEFFREY TOOBIN:
One thing I find about public figures generally, and the Supreme Court justices are among them, is that they feel misunderstood. They feel like the press is unfair to them. And one way to rectify that is to more directly engage with the press itself.

With the law clerks it's a little different. I think one thing you have to be especially careful about in interviewing law clerks is that they don't inflate their own importance. Some of them are still just bubbling over with excitement of what it was like to be near such momentous events. I think some of the literature about the court inflates the importance of law clerks because the sources [LAUGHS] are law clerks.
BOB GARFIELD:
The Supreme Court is supposed to be above the fray, unsullied by politics and unperturbed by the chattering classes such as ourselves. Obviously, in all other areas of government, light is better than darkness. But is it possible that in the case of the Supreme Court, privacy actually protects its purity, safeguards the process?
JEFFREY TOOBIN:
I think a measure of privacy is very important. For example, the conference of the justices, where they, after oral argument, meet, I don't think that should be televised. But, there's no good argument for keeping the oral arguments of the court off television and radio.

I am not someone who thinks every act in government must be public immediately, but I do think that once time passes, given the magnitude of these events, that history has its claims, and these events are important. So, yes, I think there should be a lot more public disclosure than there is.
BOB GARFIELD:
Jeffrey, thank you very much. Good luck with the book.
JEFFREY TOOBIN:
It's a pleasure. Thanks.
BOB GARFIELD:
Jeffrey Toobin is a staff writer for The New Yorker and author of The Nine: Inside the Secret World of the Supreme Court.