White left the NFL to serve in the Navy in World War II, and when Patrol Torpedo boat 109 (PT-109) sunk in the Pacific after colliding with Japanese destroyer Amagiri, Lieutenant Commander White wrote the intelligence report that transformed Lieutenant (Junior Grade) John F. Kennedy into a war hero. Two decades later, White became President Kennedy’s only appointment to the Court.
Although I wasn’t a fan of his jurisprudence, I would have loved to have had lunch with Byron White. But he never forgave the law clerks and justices who spread internal gossip and the details of the Court’s decision-making to Bob Woodward in his classic insider book, The Brethren, and as a result, Justice White resolved not to have lunch with clerks from any other chamber. In prior decades, his games on the Supreme Court basketball court—the highest court in the land—were legendary: a college football hall-of-fame great, with hands seemingly carved from stone, he man-handled pencil-necked law clerks in the paint. Nothing he did (no matter how rough) was ever a foul, but if you so much as touched his arm, he’d call it. Alas, by the time I was clerking, White had retired from basketball, so sadly I didn’t get the chance to have lunch or play hoops with him.
I’m thankful all the other justices continued the lunch tradition, and I recall having lunch in Justice Souter’s chambers. He told us that each day for lunch he had a small bowl of plain yogurt and an entire apple (core and all). On the weekends, he added fruit to his yogurt. I remember sitting back and finding it curious that Souter apparently liked yogurt better with fruit, but he was enough of an ascetic to deny himself that pleasure five days of the week.
A lifelong bachelor and a slim, reserved man, Justice Souter had primarily known the rural world of New Hampshire. At lunch, he described his time on the New Hampshire Supreme Court, which was his only significant judicial experience prior to his nomination to the Court. In particular, he explained how the complicated and important constitutional questions often before the U.S. Supreme Court never made it to the New Hampshire Supreme Court. Instead, he joked that their cases would “often involve a car that had hit a cow.”
I don’t think David Souter knew he was a liberal when he was nominated to the Supreme Court. He had simply never confronted those issues—had never thought through them. In his first year or two on the Court, he had a relatively conservative voting record, voting often with Justice Scalia.
Souter’s clerks often mirrored the temperament and jurisprudence of the justice. They were reliable liberals, often quintessential Birkenstock-wearing, granola-hippie types. I mean that more figuratively than literally, although some of his clerks fit that description literally as well.
There is no doubt that the world would be profoundly different if President Bush had chosen Edith Jones instead of David Souter. But to truly understand how dramatically things went wrong, we should reflect on what the Court would have looked like had two nomination outcomes been different—had Bork been confirmed instead of Anthony Kennedy, and Jones been nominated and confirmed instead of David Souter.
If those two things had both happened, we would have had a five-justice majority of which Antonin Scalia would arguably have been the most liberal: a majority consisting of Chief Justice Rehnquist, Clarence Thomas, Robert Bork, Edith Jones, and Antonin Scalia, with Justice O’Connor floating out there as the possible sixth vote in any particular case. The annals of constitutional history for the last four decades would have been dramatically different.
The constitutionalist wing of the Court would have been strongly fortified at the time when President Clinton nominated Stephen Breyer, a brilliant court of appeals judge and Harvard Law professor, and Ruth Bader Ginsburg, a trailblazing activist lawyer for the ACLU and an extraordinarily successful Supreme Court litigator. Remarkably, in Ginsburg’s case, despite her having served as the general counsel of the ACLU and there being no mystery to anyone how leftwing her political ideology was, she was confirmed 98–0.
Despite Breyer’s and Ginsburg’s confirmations, the constitutionalist majority could have survived had Republicans gotten their picks right. First, Sandra Day O’Connor retired, which presented George W. Bush with a tremendous opportunity to shore up the Court’s devotion to the Constitution. Bush nominated Judge John Roberts to take her place. Shortly after that nomination, William Rehnquist passed away from thyroid cancer. Because the nomination was still pending, Bush withdrew Roberts’s nomination to be an associate justice and instead nominated him to be the chief justice. And shortly thereafter, Bush nominated Judge Samuel Alito to fill the associate justice position.
With John Roberts, the decision once again came down to two judges sitting in the White House. In one room was John G. Roberts, a brilliant lawyer, a judge on the D.C. Circuit, former deputy solicitor general of the United States, and someone widely considered the finest Supreme Court advocate of his generation. He was a former clerk to Chief Justice Rehnquist. I remember when I was clerking asking the Chief, “Of all the lawyers who appear before the Court, who’s the best?” The Chief chuckled and with a wry grin said, “I think I could probably get a majority of the Supreme Court justices to agree that John Roberts is the finest Supreme Court advocate alive.” As a twenty-six-year-old young lawyer, I heard that with amazement and, needless to say, paid close attention to every argument Roberts had at the Court. He was a brilliant advocate, but, personally, Roberts kept his cards
