At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same." And then Toobin reveals this: "There were times when David Souter thought of Bush v. Gore and wept."
The account has triggered a bit of controversy, which is always good for book sales. A long-time Souter friend, former New Hampshire senator Warren Rudman, recently told the Manchester Union-Leader that the account is fiction. "Nobody is closer to David Souter than I am and that story is false," Mr. Rudman told the newspaper.
Rudman did verify another of Toobin's anecdotes, however. Mr. Souter and Justice Stephen Breyer are sometimes mistaken for each other by outsiders – although the two men do not look anything alike. As Toobin tells it, a man and his wife once approached Souter and asked, "Aren't you on the Supreme Court?" Souter admitted that he was. "You're Justice Breyer, right?" the man asked. Ever polite, Souter nodded and chatted with the couple for a few minutes.
Then the man suddenly asked: "Justice Breyer, what's the best thing about being on the Supreme Court?" The justice answered, "Well, I'd have to say it's the privilege of serving with David Souter."
True story, says Rudman.
Toobin offers up some intrigue as well. He tells the story of how the late Chief Justice William Rehnquist administered the oath of office to Bill Clinton in January 1997. A week earlier the Supreme Court had heard oral argument in the Paula Jones case – Clinton v. Jones. (That's the sexual harassment lawsuit that would trigger the tawdry disclosures and events that led to impeachment proceedings.)