True, though earlier you expressed your preference for conservative media, which itself can be isolating in its own way.
Oh, c’mon, c’mon, c’mon! [Laughs.] Social intercourse is quite different from those intellectual outlets I respect and those that I don’t respect. I read newspapers that I think are good newspapers, or if they’re not good, at least they don’t make me angry, okay? That has nothing to do with social intercourse. That has to do with “selection of intellectual fodder,” if you will.
When was the last party you went to that had a nice healthy dose of both liberals and conservatives?
Geez, I can’t even remember. It’s been a long time.
Is that true on the Court as well? Are things tenser in this building? Were there ever more harmonious groupings of justices than others?
No. Everybody I’ve served with on the Court I’ve regarded as a friend. Some were closer than others, but I didn’t consider myself an enemy of any of them. Now, that hasn’t always been the case. Frankfurter and Douglas, the Harvard Law professor and the Yale Law professor, hated each other. They wouldn’t talk to each other. Imagine being on a committee of nine people where two of them won’t talk to each other! But it’s never been the case since I’ve been on the Court.
You were asked this summer about the most wrenching case you’ve decided, and you answered, “Is Obamacare too recent?”
Is that true?
No. Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
That sheds new light on your famous odd-couple friendship with Ruth Bader Ginsburg. Do you think it’s easier to be close to a colleague who is so ideologically different?
There may be something to that. If you have low expectations, you’re not disappointed. When it’s somebody who you think is basically on your side on these ideological controversies, and then that person goes over to the dark side, it does make you feel bad.
Who was or is your favorite sparring partner on the bench? The person who makes or made your ideas and opinions better?
Probably John Paul Stevens. There are some justices who adopt a magisterial approach to a dissent. Rehnquist used to do it. [He turns his nose up theatrically, flutters his hand in dismissal.] Just, Don’t even respond to the dissent. This is the opinion of the Court, and the hell with you. I am not like that. I think you should give the dissenter the respect to respond to the points that he makes. And so did John Stevens. So he and I used to go back and forth almost endlessly.
Are there any lawyers who you also consider really formidable?
That’s one of the biggest changes on the Court since I’ve been here. When I arrived, there really was not what you could call a Supreme Court bar—people who appear regularly. But now we have people who appear four, five times a term. What has happened is the big law firms have adopted Supreme Court practices. I’m not sure they make money on it, but they get prestige from it. So we get very good lawyers. Many of them ex–solicitor generals.
How does that change your job?
It makes my job easier. We are dependent upon these people who have lived with the case for months—in many cases years—to clarify the facts and to clarify the law. I come to the thing maybe a month beforehand. These lawyers—the reason to listen to them is that they presumably know more about the subject than you do.
Another change is that many of the states have adopted a new office of solicitor general, so that the people who come to argue from the states are people who know how to conduct appellate argument. In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.