Balkinization: Inside the Supremes

Inside the Supremes

Brian Tamanaha

Jeffrey Toobin’s The Nine accomplishes something that did not seem possible: he’s written a sort of thriller about the Supreme Court. The Court’s decisions, Toobin shows, are the products of the justices’ personalities, political views, life experiences, relationships with one another, and of their reactions to surrounding events. This is constitutional law in the making, but with real people and real life. There is pettiness, hubris, despair, pride, idealism, hope, and striving. Inside accounts of the Supreme Court are no longer shocking. And the broad outline of the story Toobin tells is familiar to court followers. But The Nine stands out among other recent accounts of the Supreme Court in at least one respect: it is a darn good read.

The book recounts the determined campaign by conservatives to change the law by taking over the Court. An interesting quality of the book is that—as with so much in our political scene today—liberals and conservatives will likely experience directly contrasting emotional reactions while reading the same text.

Liberals can read the first three-quarters of the book with a limited sense of relief at the long feared but unexpectedly stymied conservative revolution (feeling a measure of gratitude for Souter, O’Connor, and Kennedy), knowing that a major conservative shift in the law was postponed but would not be denied. For them, this is a string of narrow escapes and occasional wins that grinds toward an inevitable unhappy ending. Conservatives can read the first three-quarters of the book with consuming frustration at their unfairly withheld victory (seething at their villains, Souter, O’Connor, and Kennedy), but with some solace in the knowledge that success awaits them ahead. Their triumph, delayed until the end of the book, is all the sweeter when it finally arrives.

Toobin has crafted an agonizing tale for liberals, ending gloomily with the promise of bigger losses to come; while for conservatives this is a tale of perseverance rewarded, ending with giddy anticipation at a suddenly bright future.

Much of the book focuses on the personalities of the justices. In a phrase, this is what comes through about each: Scalia is a bully (in writing) who suffers from Tourette’s Syndrome for intellectuals; Thomas holds his extreme views with conviction, and is a likable person in private; Rehnquist ended up cynical about constitutional doctrine; Souter is a decent (quirky) person, genuinely committed to the law; Ginsburg is mostly invisible, but forceful when provoked; Stevens blends commitment to a set of core principles with a pragmatic "get it done" attitude; Breyer is an optimist; Kennedy is earnest yet arrogant without knowing it; O’Connor has great strength. Charming Roberts and bland Alito are alike in their commitment to the conservative cause and their determination to advance it.

O’Connor is the central personality in the book. Toobin emphasizes the many crucial cases that turned on her vote. He approves of her seeming capacity to divine and replicate the views of mainstream Americans on issues before the court.

Although Toobin shows her many admirable qualities, I cannot agree with his evident endorsement of O’Connor’s approach.

Constitutional interpretation—yes, we all know politics comes into play a lot—ought not in the end turn primarily on what a given justice wants. Yet time and again O’Connor’s decisions came to that (or at least that’s what Toobin argues). Owing to her pivotal swing position, in many important cases what O’Connor wanted became the ruling of the Court. Law had a lot to do with O’Connor’s decisions, to be sure, but the driving force was her confident sense that she knew what was right, and that became the law for all the rest of us.

That’s no way for constitutional decisions to be made by a justice. That’s no way for a constitutional court to operate.

A number of reviews of The Nine have pointed out various errors and omissions in the book. My main objection is that Toobin overly discounts the role law plays in their decisions. But none of the criticisms I have read challenge the general correctness of his account about the conservative take over of the Supreme Court—how and why it came about, and why it was delayed for so long. This is an important story, and Toobin tells it brilliantly.

The lesson I take away from the book is an old one: it’s about the individuals beneath the robe—about whether they are committed to the law above all else.

Posted 9:41 AM by Brian Tamanaha [link]

Comments:

I sympathize with your sentiments, but I'm not sure if that is simply a product of law school/profession socialization that holds judges up as, ostensibly, wise and less subject to passions than the rest of us because they are interpreting the "law."

I know your position is more sophisticated than that (I've read LME), and we all know that politics plays a role, but teasing out how much a role the law as a constraining force plays (at the SCOTUS level at least) in the socially contentious cases is, to say the least, a difficult task.

To give just one example: how else can one explain SA's embarrassing opinion in Hein v. FFFR. What kind of grade would a law student get in his 1L con law class if he answered a question holding such a distinction relevant???? Is there any other way to understand that opinion than his desire to move the law toward a desired result while still appearing "judge-like" by not overruling Flast?

IOW, I fear that objectivity in constitutional court judging is not an attainable goal. Although I sincerely *want* it to be.

# posted by

Calvin TerBeek : 11:20 AM

While the alleged advent of a new conservative court may provide a suitable conclusion to Toobin's "legal thriller," I believe that we conservatives are still one vote short. Kennedy is only a conservative on certain issues and the cases last year just happen to concentrate on those issues. This year provides a number of cases which can allow Kennedy to show his liberal side.

Although judicial nominations are far below Iraq and health care on the politicos' radar screen, the 2008 presidential and senate elections will be crucial in this regard.

If the GOP retains the WH (they will probably lose a little more ground in the Senate), the old guard liberals will not survive another term to hold out for a Dem President to replace them. We may have a truly conservative court if a Republican can replace Stevens and Ginsberg. However, a Dem could replace them with two more young liberals and then age will move against the conservatives.

# posted by

Bart DePalma : 11:43 AM

With regards to how well-written the book is, I found myself wondering whether it actually is. It certainly seems to be, but it's dealing in events that have a well-worn familiarity (indeed, probably the biggest criticism of the book is that it's hard to see what's new here of any real substance - the tale of Scalia, Kennedy and Souter struggling through a snowstorm because the Chief wouldn't close the court for the day is frothy and fun, but hardly tells us anything to justify the book's conspiratorial subtitle). The narrative jumps around somewhat, and while after the first few chapters I found myself thinking it was well-written, by the end, I started wondering whether it really was well-written or whether the knowledge of these events and cases that I had before reading it was providing a glue between the anecdotes that isn't actually in the book and that lay readers will thus not have.

I also found it curious that a book purportedly about the Supreme Court seemed to have so little interest in or focus on what the court actually does - law. It really compares quite unfavorably with Tushnet's similarly hostile A Court Divided, and although it seems to fancy itself The Brethren it reads more like an updated dumbed down Closed Chambers. Greenburg's book covers much the same ground and is in every sense superior.

# posted by

Simon : 1:02 PM

Calvin, you may well be right. I just keep trying to hold the line at law, but...

Bart, for once (or perhaps a second time), I agree with you. The story is not over. Kennedy is now calling the tune, and it's not clear where that will lead in a different set of cases. And much about near future of the court rides on the next election.

Simon, it takes skill to keep readers immersed in a story the outlines of which are already generally known. The pacing, structure, and delivery of the narrative work well. It's a page turner.

Brian

# posted by

Brian Tamanaha : 4:06 PM

Isn't what Toobin is complaining about inevitable? The Supreme Court is going to have ideological justices who hew to various principles in judging cases, on the left and the right, leaving people who swing from left to right and back based on practical considerations and "feel" in control of the Court. Before O'Connor there was Stewart and Powell and White, way back when there was Owen Roberts, and now there is Kennedy.

That may seem like a strange way to do constitutional interpretation, but it is the inevitable byproduct of a 9 member court.

# posted by

Dilan : 4:37 PM

Oh, brother. I'm amazed every single day watching political commentary where the libs and the cons think the other side is stealing their lunch money.

Conservative takeover of the court, huh. Don't you think maybe somewhere tonight there is a nice little conservative blogger arguing that with Kennedy on the bench the court can't move far enough right.

No doubt the court is leaning right, but has it overturned Roe or Miranda or the exclusionary rule? Is the commerce clause not still way past any original conception?

Things swing back and forth. you know that.

Everybody relax and remember, your side can't always win.

# posted by

David : 12:07 AM