No Comment — September 20, 2007, 2:37 pm

Toobin’s Supremes

Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007) $27.95.

The American media has seen a proliferation of legal affairs commentators, largely drawn from the legal profession. On cable news we see a crew of figures who offer non-stop commentary on the trial du jour, filling in technical legal analysis and pearls of wisdom on life in a seemingly relentless torrent of words. Magazines and newspapers increasingly turn to lawyers to understand news in the headlines—the technicalities of the FISA statute, questions surrounding state secrets, the torture debate. Not since the headiest days of the Civil Rights era have legal policy questions had such a prominent role on the news stage.

The new crop of lawyer-journalists have not necessarily made uniformly positive contributions to this process. Most of what I see on cable television is wretched. It has an undignified, carnival-like atmosphere about it, as if someone were on the sidelines handicapping a cockfight. But at the upper end of the spectrum sits Jeffrey Toobin, the legal affairs writer for The New Yorker. He’s hammered out a couple of books, and a series of articles on a wide range of topics. His pieces are consistently intelligent and well-reasoned. And what’s most unusual for the subgenre, they’re always an entertaining read.

That would also sum up my reaction to The Nine. I opened it up with high expectations but by the book’s end was a bit disappointed. It was rather weak in the deep legal doctrine analysis that I would expect from a lawyer. On the other hand, the sort of approach I had in mind would have banished Toobin from the bestseller list. I came away feeling I had a better sense of the justices as human beings, of their relationships with each other and with the Washington political establishment. It was a rewarding investment of time and attention. But I puzzled over his opening chapters. He starts chapter 2, for instance, with this observation:

“Elections impose rituals of transition on the executive and legislative branches, but the judiciary, especially the Supreme Court, glides uninterrupted into the future.”

In a sense this is an obvious truth. On the day after a major election producing a turnover, hundreds of young staffers start cranking out résumés and think about finding new jobs. The election becomes a point of catharsis. But for the courts life proceeds just as before. The judges have lifetime tenure, and the arrival and departure of their clerks follows an old cycle which is insulated from the political world.

Yet Toobin’s comment seems remarkably at odds with his own book. First, if there is one part of his book I will retain for a while it’s the very well-explored and documented discussion of the fallout of the 2000 presidential election. Toobin shows us that this caused an ancient mask to slip and exposed the five-vote majority of the court as deeply enmeshed in partisan politics and determined to wield their votes to accomplish the political objectives of their party. The court at that point had seven Republican and two Democratic justices, so of the seven Republicans, only two were prepared to put the law ahead of partisan objectives. That was a shocking fact which shook the confidence of an entire generation of lawyers in the Supreme Court. And Toobin’s most memorable passage is his discussion of how Justice Souter—a sober, quiet New Hampshire Republican—reacted to what he saw as an institutional betrayal by five of his colleagues.

David Souter was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal. Toughened or coarsened by their worldly lives, the other dissenters could move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed that Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months it was not at all clear whether he would remain a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude towards the Court was never the same. There were times when Souter thought of Bush v. Gore and wept.

But Souter’s views were reflected by many thousands in the legal community who considered the Rehnquist Court’s Bush v. Gore decision an unspeakable betrayal—a Republican coup d’état executed by five Republican justices on the Supreme Court. The Beltway punditry brushed it off—just politics. But that was precisely the problem. The temple of Constitutional jurisprudence had fallen into the political gutter. Moreover, the consequence of that decision was the installation of an Administration which has done more to undermine the concept of the rule of law than any other in the nation’s history. There seems a curious synchronicity between the way Bush came to power and the means he has chosen for his rule ever since. After deciding Bush v. Gore, the Supreme Court has gradually ceased to matter very much.

But the comment about the elections and their effect seems strange for a second reason. The “movement” conservative agenda has, since roughly the mid-1980s, focused on transforming the Supreme Court by ensuring it has a majority committed to judicial implementation of the “movement’s” political agenda. This has included the repeal of Roe v. Wade, a radical reinterpretation of civil rights legislation, a reformulation of federalism and a host of other things. This radical political agenda is now being implemented by the “movement” conservatives installed on the federal bench. So elections do indeed have an effect on the working of the courts. A determined clique with a radical agenda and a keen eye for political gamesmanship can implement its agenda even when it has the backing of only roughly a third of the population.

Today Americans are concerned that the Supreme Court and the federal judiciary in general is out of step with the country. They believe it is decidedly too conservative. In my lifetime, this is the first time the public has taken the view that the judiciary has tilted too far to the right.

Toobin’s book fits into a now well-established category of popular writing on the Supreme Court which presents the court as a temple of secrets and proceeds to pierce its veil. These books usually focus heavily on the personal foibles of the judges—physical ailments, use of prescriptive (and sometimes unprescribed) medications, advanced senility and efforts to cover it, and partisan politics. Occasionally these elements are important in helping us understand the dynamics that drive legal decisions, but more often this is just lurid detail. And here, Toobin does a more-than-respectable job. He offers personal details that help us understand who these justices are and how they think; he does not appeal to the prurient. He offers us a glimpse of a Court in a twilight phase, but what he offers is far short of a diagnosis. A noble institution is under siege from the barbarians. If it falls in the end, it will more likely be from internal rot than a storming of the gates.

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