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]