dailykos.comBook Review: Jeffrey Toobin's "The Nine"Mon Sep 24, 2007 20:12Book Review: Jeffrey Toobin's "The Nine"
Sun Sep 23, 2007 at 09:12:37 AM PDT
Inside the Secret World of the Supreme Court
By Jeffrey Toobin
New York, 2007
... the touchstones of the years 1992 to 2005 on the Supreme Court were decisions that reflected public opinion with great precision. The opinions were issued in the Court’s customary language of legal certainty—announced as if the constitution text and precedents alone mandated their conclusions—but the decisions in these cases probably would have been the same if they had simply been put up for a popular vote.
That, now, may be about to change. Through the tense standoff of the Burger and Rehnquist years, a powerful conservative rebellion against the Court was building. It has been, in many respects, a remarkable ideological offensive, nurtured at various times in such locales as elite law schools, evangelical churches, and, most importantly and most recently, the White House. Its agenda has remained largely the same over the decades. Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere. Because the Court has been so closely divided for so long, conservatives have made only halting progress on implementing this agenda. Now, with great suddenness (as speed is judged by the Court’s usual stately pace), they are very close to total control. Within one vote, to be precise.
Designed to be removed from the political fray, august and majestic above electoral heights, the Supreme Court has long held fast to a tradition of cloaking its proceedings and disputes from the public. Bob Woodward’s The Brethren first pulled back the curtain a bit in 1979, and several accounts have revealed a bit more in the years since. Now Jeffrey Toobin, a New Yorker staff writer and senior legal analyst at CNN, has penned an account of the past 25 years of tumultuous change in the court—all the way up through the end of the spring 2007 session—that brings to light the institution’s modern inner workings as it makes its historical shift to the right.
Oddly, hearing the details of personality clashes, maneuverings, ideological divides and eccentricities of the members of the highest bench does little damage to the unique place the Supreme Court holds in the American imagination. Indeed, the historical bending of personality to the institution—and the shaping of that institutional tradition by individual justices—not only makes for fascinating reading, but amazes with its ability to convey reverence, analysis and entertaining anecdote and still leave an awe intact for highest court in the land.
Of course, the most intense focus is on the change precipitated by the retirement of Sandra Day O’Connor and the death of Chief Justice William Rehnquist, and their replacement by Samuel Alito and John Roberts, respectively. The loss of O’Connor, in particular, began a lurch to the right, and the subtlety of the first woman justice’s uncanny ability to reflect the mixed feelings of the electorate are, the author predicts, going to be sorely missed in the future. "When it came to abortion rights, even at the start of the 1990s, the Rehnquist Court was in fact the O’Connor Court," he claims, pointing out that "the way to win a majority in the Rehnquist Court was to earn O’Connor’s support, so her colleagues invariably came to her as supplicants." Unlike Scalia and Thomas, who remained isolated in their opinions during her tenure—one proudly and publicly, the other angrily and privately—she, Kennedy and Breyer often sought to persuade other justices and to author opinions that would rally a majority around a non-extreme opinion.
The quagmire of the 2000 election intervention is explored in detail, and Toobin, who for the most part maintains a neutral reportorial analysis throughout, uncharacteristically deplores the "the inept and unsavory manner with which the justices exercised their power." He doesn’t necessarily think Gore would have won—he cites two after-contest recounts conducted, one in which Gore would have won had the four Florida counties been conducted and one in which Bush would have emerged victorious from a full-state recount—but the method of high-bench decision-making is strongly criticized: "...the Court as an institution and the justices as individuals failed. Indeed, their performance on this case amounted to a catalog of their worst flaws as judges."
By the time Toobin reaches the historic Bush v. Gore decision, he has laid the groundwork well by providing an overview of the rise of the Federalist Society and its growing influence on judicial ideology and selection, and giving character sketches and biographies of each of the sitting justices. There is, in this telling, a feeling of car-wreck inevitably about the whole process of decision-making, a riveting blow-by-blow as the Court succumbs to political passions and hostile camps stake out their territories behind the scenes, encompassing clerks and staff as well as the judges.
There is much, much more than just the documented slide to the right in this book: how the different personality styles of the justices shape their opinions, how foreign judicial rulings are affecting the ideological struggle for control of the Court, how the immediate aftermath of the Bush v. Gore decision yielded an unexpected burst of liberal opinions (what Toobin calls a "Prague spring"). His writing is smooth and polished throughout, leading the reader through time periods and organizing the material in a way that the meaning of previous periods of Court history are placed besides more modern ones. The one absence felt is the lack of a comprehensive overview of ruled opinion in the area of business litigation, which after all is by far the majority of cases the Court hears. Focusing more on the obvious contentious social issues—abortion, affirmative action, gay rights rulings—leaves little room for assessing the past few decades of impact of more convoluted (and admittedly dry) financial cases.
Toobin builds to a fateful ending, drawing the conclusion that despite numerous past instances of justices becoming less dogmatic after appointment to the bench, the insistent cadre of both liberal and conservative interest groups that have helped shape the selection process over the past decades means that purist ideologues now sit on the Court—and probably will through future appointments as well.
Still, when it comes to the incendiary political issues that end up on the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy—ideology—and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideologies that will shape the Court and thus the nation.
So one factor—and one factor only—will determine the future of the Supreme Court: the outcomes of presidential elections. Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely.
Of course, this observation is of vital concern as we move into a presidential election year, especially to liberals who want to counteract the rightward tilt of the Court. Toobin notes that one of the strengths of the Federalist Society and evangelical alliance was the indefatigable passion invested in placing conservatives on the highest Court in the land: "They organized more, mobilized more, and cared more about the Court than their liberal counterparts. And when their candidate won the presidency, these conservatives demanded more...."
In this light, Toobin’s closing paragraph is ominous, as he evokes the image of the famous steps that lead to what the architect deemed "the greatest tribunal in the world"
Cass Gilbert’s steps represent at some level a magnificent illusion—that the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the Court we deserve.
Amazon.com: Jeffrey Toobin: Books
The Nine: Inside the Secret World of the Supreme Court
by Jeffrey Toobin (Hardcover - Sep 18, 2007)
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