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New book gives behind-the-scenes look at colorful high court

By Bill Mears, CNN Supreme Court Producer
updated 12:31 PM EST, Wed December 14, 2011
STORY HIGHLIGHTS
  • "Courtwatchers: Eyewitness Accounts in Supreme Court History" is by Clare Cushman
  • It includes "firsthand accounts from justices, their families, court staff" and others
  • New justices are often nervous and face a steep learning curve, she says
  • Most cases don't address highly publicized disputes, Cushman notes

Washington (CNN) -- It's the big question most people want to know from those who work at and report on the United States Supreme Court: What's it really like behind those marble walls? A new book now helps bring to life the often mysterious place where great power is wielded by nine little-known justices.

Clare Cushman's "Courtwatchers: Eyewitness Accounts in Supreme Court History" (Rowman & Littlefield) is part history lesson and part colorful narrative. The highly entertaining work weaves behind-the-scenes stories about the singular place the court holds in American society with an unbiased attention to personality and place.

Among the unearthed gems: Justice James McReynolds (on the court 1914-1941) reportedly urging the president "not to afflict the court with another Jew"; Justice Oliver Wendell Holmes (1902-1932) describing his colleagues as "a cloud of biting mosquitoes"; and Justice Antonin Scalia (1986-present) dividing the kinds of opinions he often has to write into "plums" and "dogs."

CNN spoke recently with Cushman, who is publications director for the non-profit Supreme Court Historical Society, a group dedicated to education and research.

CNN: What were you hoping to do with "Courtwatchers" that other contemporary studies failed to tackle?

Cushman: "My aim was twofold: write a book that would please the Supreme Court buffs who love all the inside stories. And through my many years at the Society, I had found some wonderful glimpses into life on the court written by eyewitnesses. I had always been fascinated by firsthand accounts from justices, their families, court staff, clerks, journalists, even random bystanders who happened to be in the courtroom and witnessed something interesting. And I wanted the book to appeal both to people who already knew a lot about the court but weren't aware of these wonderful stories, but also I wanted to engage people that are interested in the court but don't want to read a constitutional history approach to the court that is all about case law. They can approach this book through the court practices, traditions and people who work there, as opposed to a chronological look at case law."

CNN: You stay away from politics and ideology, and essentially let the court speak for itself through anecdotes, letters, and interviews with those who worked there.

Cushman: "I wanted to look at themes, personalities, and the drama. I have a chapter on oral argument and how that practice evolved. Back in the Marshall era (under Chief Justice John Marshall, who served from 1801 to 1835), you had lawyers with unlimited time who spoke before the bench for days on end, lacing their arguments with flourishes from Shakespeare, the Bible, and Roman law. And the justices would sit in silence, completely deferential, and just chew their tobacco. And now it's a completely different game. Each side gets a half hour to argue. The justices and oral advocates work in cooperation to get to the crux of the matter as quickly as possible. But in order to do that the justices bombard advocates with questions. So it's more of a thrust-and-parry game. I wanted to trace that evolution using firsthand eyewitness accounts to make it more lively, colorful, and engaging."

CNN: One section deals with new justices and the challenges they face, the chapter called "A Rookie Arrives."

Cushman: "Everyone is always surprised at that. I have a couple of letters written by justices from different time periods, to spouses or friends, saying: 'Oh my gosh, what am I doing here, everyone is so much smarter than me, I'm in way over my head, I don't know if I'll survive.' We don't really think of justices as being nervous when they're rookies. And people also don't realize the learning curve they have when the get there, and how it takes sometimes five years to master the job, by seeing every type of case and (legal) question that comes before the court. And once you have seen all that-- (Justice) Byron White once called it 'getting around the horn of the cases' -- then a justice can settle in and get comfortable."

CNN: There is the public perception the justices are always at each others' throats, clawing ruthlessly for a majority in contentious issues.

Cushman: "There were a couple very miserable periods in the court's history when there were entrenched battle lines. But one thing you come away from this book -- especially what goes on in (closed-door) conferences, and how the justices cooperate to assign and write the opinions -- is the court over the decades has really been marked by cordiality much more than discord, and that continues today. We know there is a current 5-4 (conservative-liberal ideological) split and some of the cases they decide are quite contentious. And yet they go into that private conference, shake hands, and by all accounts I have been given, the level of cohesion and personal friendship is very high."

CNN: The judiciary for a lot of reasons is not well-known by the public, and there is something of a knowledge gap about how the nine justices perform their duties under the law and under the Constitution.

Cushman: "It's terrible in a way that most people think of the court as taking on highly pitched, highly politicized cases with 5-4 splits. And they think the court only looks at questions that are very hot button -- abortion, death penalty, and health care for example. But in fact in the last century the court has decided one-third of cases unanimously. And most cases don't address highly publicized disputes. They're important but not well noted -- state rights, bankruptcy, tax law -- all kinds of things the public doesn't focus on."

CNN: This book runs the gamut of history over more than two centuries. From the first chief justice, John Jay, and his extracurricular activities that kept him away from the court for long periods, to the current chief justice, John Roberts. You explain how he was overseas in 2005 when the White House quietly urged him to get back home and perhaps -- perhaps -- await a personal call from President Bush nominating him to the high court.

Cushman: "He explains in great detail about coming all the way from London (to Washington) and having to go through endless customs and security lines and then hop in the cab. He is so worried getting back home in order to hopefully pick up the phone from the president offering him the seat. Because somewhere in the back of his mind, he thought -- if he wasn't there, they might go down the list and offer it to the next person. But he walks in the door and the phone's ringing. It's the White House, and you know the rest. It's amusing to think a would-be chief justice would be nervous about missing a call like that."

"Courtwatchers" can be purchased at: supremecourtgifts.org/courtwatchers.aspx

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