One of the most surprising discoveries for readers of Toobin’s book is that Supreme Court justices are subject to the vagaries of office politics and annoyances. Apparently, former Chief Justice Warren Burger was disorganized and, frankly, not always so good at being a chief justice.
Discussions meandered aimlessly and ended inconclusively. Justices sometimes thought that Burger would switch his vote to keep control of opinions or even try to assign cases where he was not in the majority. . .
In the Burger years, opinions came late or not at all, forcing cases to be “put over,” or reargued, in subsequent years.
That the justices could be frustrated by a bad manager is a little sad. I guess I always hoped they were free to ponder the great legal questions put before them unencumbered by the kinds of cubicle frustrations with which we lesser mortals deal. But it wasn’t just Burger, after whom Rehnquist whipped the court into shape, who kept daily operations from ascending to a higher plane. Regular old political disagreements, the kind that can make the workplace tense, really came to the fore during Bush v. Gore.
Clerks were screaming at each other, and accusing the other side of trying to steal the election. Most comically, there was a bit of an overreaction when the normal business of the court brushed up against the case.
At about nine in the evening on Tuesday, as the last of the opinions were being proofread before being sent to the printer in the basement, a court of appeals law clerk named Anil Kalhan showed up in advance of an interview with O’Connor that was scheduled for the next day. Kalhan thought he would visit friends who were already clerking. But his arrival outraged several other law clerks, who thought that an outsider like Kalhan could not be trusted to keep the result in Bush v. Gore secret. Some suggested, in apparent seriousness, that Kalhan be “detained,” so he could neither leave nor call outside the building.
This is not what I imagined.
