Reviewed by Edward Lazarus
Sunday, September 23, 2007
Inside the Secret World of the Supreme Court
By Jeffrey Toobin
Doubleday. 369 pp. $27.95
In 1979, Bob Woodward and Scott Armstrong published The Brethren, an eye-popping look into the closed world of the Supreme Court under then-Chief Justice Warren Burger. Through interviews with several justices and dozens of former law clerks, the authors captured the personalities, rivalries, politics and principles that drove the court's decisions.
In the decades since, a number of writers have tried to do for the court under Chief Justice William Rehnquist (and now John Roberts) what The Brethren did for the Burger era. With The Nine, Jeffrey Toobin, a New Yorker staff writer and CNN legal analyst, becomes the latest.
The idea behind The Nine -- that the public should understand the court's inner workings -- remains vital. To a degree that would baffle the Founding Fathers, we have come to vest these unelected, life-tenured judges with final authority to interpret the Constitution as well as all federal law. Yet the justices go to considerable lengths to shroud their deliberations in secrecy, and some of them, notably the current chief justice, engage in a disinformation campaign, announcing that they are disinterested referees, like umpires in baseball, engaged in the pedestrian enterprise of calling legal balls and strikes according to a clear set of rules.
Toobin deserves credit for adding his influential voice to the chorus seeking to debunk this myth. As he observes, the justices are chosen through a political process for political reasons, and the decisions they reach are inevitably influenced by their ideological commitments, personal experiences and personalities.
(In the interest of full disclosure, I should note that my book Closed Chambers also discussed the court's inner workings. Toobin cites my earlier work as a source, and, in one brief passage, he suggests that we disagree on the subject of how much influence law clerks wield.)
Toobin guides us through the last 15 years of court history by focusing on individual justices, and his portraits are unspoiled by hagiography. Toobin's Rehnquist has little interest in the reasoning even of his own opinions; the brilliant but pugnacious Antonin Scalia alienates potential allies; Stephen Breyer is an eternal optimist with a sometimes unrealistic belief in his own powers of persuasion; and a pompous Anthony Kennedy (Toobin's least favorite) revels in his power to shape the law.
At the center of the ensemble was Sandra Day O'Connor, the former politician and Goldwater Republican who (sometimes with Kennedy) kept the court on a relatively moderate path despite the efforts of its more conservative trio -- Rehnquist, Scalia and Clarence Thomas. Toobin portrays O'Connor as a finger-in-the-wind justice: She aligned the court's decisions with her "unerring" sense of public opinion and, like the public, moved somewhat to the left out of disenchantment with President Bush (whose election, ironically, she helped to engineer by joining the 5-4 majority in Bush v. Gore.) So it is that the court cut back on Roe v. Wade but preserved a right to abortion, curbed affirmative action but did not prohibit it, mediated between claims of religious freedom and the need for a wall between church and state, and rejected Bush's claims of unreviewable executive power in the war on terror.
Court watchers will not be surprised by any of this. Almost all the vignettes that enliven Toobin's narrative -- the alliances forged and broken, the flaring tempers and hurt feelings -- have been described by other journalists. But this lack of originality could be overlooked if Toobin had used the material to give us a greater understanding of how the institution actually works. On this score, his book comes up a bit short.
In The Nine's best moments, Toobin links the justices' backgrounds to their views. Few commentators, for example, have connected John Paul Stevens's military intelligence service in World War II to his legal opinions. But Toobin makes the link persuasively in discussing Stevens's skepticism toward claims of military necessity in the Guantanamo cases.
Unfortunately, Toobin is also prone to significant overstatements. He describes O'Connor as a justice who liked most matters to be settled through the political process rather than by courts. Yet between 1995 and 2001, O'Connor upset the political process to an extraordinary degree by voting to use judicial power to strike down 50 state and federal laws, more than any justice except Kennedy. Toobin couples Rehnquist with Scalia as practitioners of "original intent" -- a conservative doctrine of interpreting the Constitution according to the intent of the framers rather than in light of experience. Rehnquist, however, was not an originalist, and this rift with Scalia sometimes weakened the court's right wing. Toobin also describes Scalia's jurisprudence as uniquely consistent. Actually, a big knock on Scalia is that his "consistent" originalism conveniently disappears in some important contexts (such as affirmative action and state sovereign immunity) where originalism would lead to liberal results. And Toobin describes Souter as modeling himself after the second Justice John Harlan, which is true with respect to due process and a few other issues but misses the important point that Harlan was a devotee of states' rights while Souter is a devotee of federal power.
Even more important, Toobin does not give us a coherent framework for thinking about the court. He tends to applaud compromise, particularly when it yields middle-of-the road decisions that accord with public opinion, but he does not offer any explanation for why judges interpreting the Constitution should see compromise or public approval as their goal. Nor does Toobin explain how this view of judging fits with acclaimed decisions such as Brown v. Board of Education, where the court stepped out in front of public opinion, or with abominable decisions, including cases from the McCarthy era, where the court condoned gross injustices while catering to popular opinion. As a result, he sheds little light on how the public should evaluate the justices.
In the absence of explanation, one gets the sense that Toobin favors centrism not because it gives coherence to the court's role in our democracy but because, with O'Connor having been replaced by the very conservative Samuel Alito, Toobin dislikes last term's rightward lurch and fears worse ahead. As Toobin emphasizes, when it comes to the court, presidential elections and the ideology of our justices really do matter. As he puts it, we get "the Court we deserve." *
Edward Lazarus, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."