My husband, Ted, has plowed straight through Jeffrey Toobin’s new book, The Nine, in the past few days — even waking up before dawn several mornings to read it. He is so impressed with Toobin’s reporting, writing and insight into the inner workings of the current Supreme Court, I asked him to write a review for mullentown. If any of you have read it, please post your own views. And because I ALWAYS do what my husband tells me, I’m going to start reading it tonight. Seriously, I am. — Holly

****************
The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin, Doubleday, 2007.

Jeffrey Toobin covers legal affairs for the New Yorker, a magazine known for terrible titles for its articles yet fascinating reading when you take heart and jump in. In the case of Toobin’s book, the title and the text are equally engaging.

Toobin uses his journalistic skill to reveal the recent history of the Supreme Court. His portraits of the nine justices are certainly judgmental and open to political argument, but by a focus on individual jurists he captures the essence of these few people who are the final word on those matters most important to Americans: abortion, liberty, local government, rights of the accused, and so on.

The Court had until the death of Chief Justice William Rehnquist in 2005 and the retirement of Sandra Day O’Connor in 2006 enjoyed 13 years of stability. That stability was based on a truly swing court by the political philosophies of the members. Four justices–William Rehnquist, Antonin Scalia, Anthony Kennedy, and Clarence Thomas made up a predictably conservative wing with Kennedy an occasional gadfly, swinging to the left. The liberal wing–John Paul Stevens, David Souter, Ruth Ginsburg, and Stephen Breyer balanced this out. This left O’Connor as the continuous decider-in-the-middle.

And Toobin reserves his highest accolades for O’Connor. He documents how the woman from way out west in Phoenix delighted in persuading one side or the other, and how she often controlled the court. Toobin says her greatest talent was understanding deeply how most Americans viewed the issues before the court and used this to make court decisions politically palatable. Toobin puts it simply: O’Connor has become the most powerful woman in American history.

Of Rehnquist, Toobin portrays the late chief as a well-liked conciliator fixed on the flow of work in the court, fair in distribution of opinion writing to the members, and willing to accept liberal stare decisis (legal precedent) even on stormy issues like Roe v. Wade on abortion. Rehnquist was a frustration to the conservative political movement focused on the appointments of Ronald Reagan, George H.W. Bush and George W. Bush to reverse Roe, expand executive power, end racial preferences, speed executions, and welcome religion into the American sphere. Rehnquist was content to be the conductor of the symphony but not to write one.

Toobin is particularly tough on Anonin Scalia. He paints Scalia as a brilliant but obnoxious juror who dominates Court questioning of contending counsel. Scalia also enjoys berating his colleagues on the Court in written opinions and once called some “idiots” in a speech to an outside group. Scalia’s impractical but insistent campaign for “originalism,” or strict interpretation of the Constitution was nonsensical to his mates. And worst of all to conservatives, he helped drive O’Connor and Kennedy to more liberal positions.

Anthony Kennedy makes his mark by his love of flowery language in opinions and international travel. Kennedy traveled frequently through the world meeting with governments and foreign jurists. He brought these thoughts back to the Court and applied international influences in his opinions and votes. As such he became a frequent swing voter to the liberal side.

John Paul Stevens, now senior on the court, is portrayed as a statesman who stabilized the Court. Though appointed by President Gerald Ford as a conservative, he long ago drifted to the liberal side on most issues.

David Souter was also the appointment of a conservative president, George H.W. Bush. Once a great hope for the conservative agenda, Souter’s simplistic and isolated life in New Hampshire led him to eschew politics and vote liberal on many issues. Souter demonstrates how Supreme Court members often move to the opposite side of the political spectrum after appointment.

Clarence Thomas cannot dispel the anger of his contentious appointment in 1991 when Anita Hill accused him of sexual harassment. Though he used continuous affirmative action to move up to the court, he believes it now to be patronizing and displays an 18th-century judicial philosophy by being the most consistently conservative member of the Court.

One myth Toobin breaks is the common perception among Court watchers that Thomas and Scalia are joined at the hip. Thomas deeply resents that description.

Bill Clinton appointee Ruth Bader Ginsburg is a reliable liberal and dedicated to feminist leanings. Her presence on the court had an influence on Sandra Day O’Connor’s liberalism in feminine manners but Ginsburg is identified as a weak member of the court who has limited influence, like Thomas, on opinions.

Stephen Breyer, also appointed by Clinton, is a brilliant if often elite and patrician member of the Court. He’s a wine expert and is even known on occasion to break into a British-like accent in his speech. Breyer can be relied on to influence opinions and writes his own in reliably clear and thoughtful ways. Not known generally was his close friendship on the court with Sandra Day O’Connor and his influence in moving her to the left. Conversely, O’Connor was a very close friend of Scalia’s but Scalia had the opposite impact on Breyer.

After the death of Rehnquist and the resignation of O’Connor, John Roberts and Samuel Alito, Jr. have been appointed. Roberts is a star. Good looking, well-spoken, a fair and thoughtful colleague as Chief, and deeply knowledgeable of the law and Court traditions, Roberts is now in charge of the “Roberts Court.” When asked in his confirmation hearings about his writings about how Roe v. Wade should be reversed, he responded he wrote that as counsel and not as personal opinion. In a clever finesse on abortion questions, he refused to tell the Senate committee where he would stand should the decision be revisited.

Samuel Alito, Jr. is clearly a down the line conservative. Hence the new court arithmetic is 5-4 for the conservatives, with Kennedy often reliably a sixth conservative vote.

Where the Roberts Court will now go is subject to political interpretation. Will Roberts lead the Court to the long-predicted conservative agenda centered mainly on abortion? He, by background of the Court’s members, appears to have the votes.

Toobin reserves energy to point out the Court’s involvement in politics, despite its members’ constant work to present themselves as neutral political beings. He calls the politics of the Court a continuous element- -ably demonstrated in Bush v. Gore, the case that settled the disputed presidential election of 2000. And he really puts that decision under the microscope.

He writes: “The struggle following the election of 2000 to 36 days, and the Court was directly involved for 21 of them. Yet over this brief period, the justices displayed all of their worst traits–among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court.”

Toobin’s final conclusions: The court will always be political as long as human beings serve as justices. Don’t rely on political appearances before membership on the Court to hold up politically. And, to quote Toobin, “… one factor only will determine the future of the Supreme Court: the outcomes of presidential elections.”

This entry was posted on Wednesday, October 17th, 2007 at 2:58 pm and is filed under All, Politics, Media, Books, Law and Order. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

My husband, Ted, has plowed straight through Jeffrey Toobin’s new book, The Nine, in the past few days — even waking up before dawn several mornings to read it. He is so impressed with Toobin’s reporting, writing and insight into the inner workings of the current Supreme Court, I asked him to write a review for mullentown. If any of you have read it, please post your own views. And because I ALWAYS do what my husband tells me, I’m going to start reading it tonight. Seriously, I am. — Holly

****************
The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin, Doubleday, 2007.

Jeffrey Toobin covers legal affairs for the New Yorker, a magazine known for terrible titles for its articles yet fascinating reading when you take heart and jump in. In the case of Toobin’s book, the title and the text are equally engaging.

Toobin uses his journalistic skill to reveal the recent history of the Supreme Court. His portraits of the nine justices are certainly judgmental and open to political argument, but by a focus on individual jurists he captures the essence of these few people who are the final word on those matters most important to Americans: abortion, liberty, local government, rights of the accused, and so on.

The Court had until the death of Chief Justice William Rehnquist in 2005 and the retirement of Sandra Day O’Connor in 2006 enjoyed 13 years of stability. That stability was based on a truly swing court by the political philosophies of the members. Four justices–William Rehnquist, Antonin Scalia, Anthony Kennedy, and Clarence Thomas made up a predictably conservative wing with Kennedy an occasional gadfly, swinging to the left. The liberal wing–John Paul Stevens, David Souter, Ruth Ginsburg, and Stephen Breyer balanced this out. This left O’Connor as the continuous decider-in-the-middle.

And Toobin reserves his highest accolades for O’Connor. He documents how the woman from way out west in Phoenix delighted in persuading one side or the other, and how she often controlled the court. Toobin says her greatest talent was understanding deeply how most Americans viewed the issues before the court and used this to make court decisions politically palatable. Toobin puts it simply: O’Connor has become the most powerful woman in American history.

Of Rehnquist, Toobin portrays the late chief as a well-liked conciliator fixed on the flow of work in the court, fair in distribution of opinion writing to the members, and willing to accept liberal stare decisis (legal precedent) even on stormy issues like Roe v. Wade on abortion. Rehnquist was a frustration to the conservative political movement focused on the appointments of Ronald Reagan, George H.W. Bush and George W. Bush to reverse Roe, expand executive power, end racial preferences, speed executions, and welcome religion into the American sphere. Rehnquist was content to be the conductor of the symphony but not to write one.

Toobin is particularly tough on Anonin Scalia. He paints Scalia as a brilliant but obnoxious juror who dominates Court questioning of contending counsel. Scalia also enjoys berating his colleagues on the Court in written opinions and once called some “idiots” in a speech to an outside group. Scalia’s impractical but insistent campaign for “originalism,” or strict interpretation of the Constitution was nonsensical to his mates. And worst of all to conservatives, he helped drive O’Connor and Kennedy to more liberal positions.

Anthony Kennedy makes his mark by his love of flowery language in opinions and international travel. Kennedy traveled frequently through the world meeting with governments and foreign jurists. He brought these thoughts back to the Court and applied international influences in his opinions and votes. As such he became a frequent swing voter to the liberal side.

John Paul Stevens, now senior on the court, is portrayed as a statesman who stabilized the Court. Though appointed by President Gerald Ford as a conservative, he long ago drifted to the liberal side on most issues.

David Souter was also the appointment of a conservative president, George H.W. Bush. Once a great hope for the conservative agenda, Souter’s simplistic and isolated life in New Hampshire led him to eschew politics and vote liberal on many issues. Souter demonstrates how Supreme Court members often move to the opposite side of the political spectrum after appointment.

Clarence Thomas cannot dispel the anger of his contentious appointment in 1991 when Anita Hill accused him of sexual harassment. Though he used continuous affirmative action to move up to the court, he believes it now to be patronizing and displays an 18th-century judicial philosophy by being the most consistently conservative member of the Court.

One myth Toobin breaks is the common perception among Court watchers that Thomas and Scalia are joined at the hip. Thomas deeply resents that description.

Bill Clinton appointee Ruth Bader Ginsburg is a reliable liberal and dedicated to feminist leanings. Her presence on the court had an influence on Sandra Day O’Connor’s liberalism in feminine manners but Ginsburg is identified as a weak member of the court who has limited influence, like Thomas, on opinions.

Stephen Breyer, also appointed by Clinton, is a brilliant if often elite and patrician member of the Court. He’s a wine expert and is even known on occasion to break into a British-like accent in his speech. Breyer can be relied on to influence opinions and writes his own in reliably clear and thoughtful ways. Not known generally was his close friendship on the court with Sandra Day O’Connor and his influence in moving her to the left. Conversely, O’Connor was a very close friend of Scalia’s but Scalia had the opposite impact on Breyer.

After the death of Rehnquist and the resignation of O’Connor, John Roberts and Samuel Alito, Jr. have been appointed. Roberts is a star. Good looking, well-spoken, a fair and thoughtful colleague as Chief, and deeply knowledgeable of the law and Court traditions, Roberts is now in charge of the “Roberts Court.” When asked in his confirmation hearings about his writings about how Roe v. Wade should be reversed, he responded he wrote that as counsel and not as personal opinion. In a clever finesse on abortion questions, he refused to tell the Senate committee where he would stand should the decision be revisited.

Samuel Alito, Jr. is clearly a down the line conservative. Hence the new court arithmetic is 5-4 for the conservatives, with Kennedy often reliably a sixth conservative vote.

Where the Roberts Court will now go is subject to political interpretation. Will Roberts lead the Court to the long-predicted conservative agenda centered mainly on abortion? He, by background of the Court’s members, appears to have the votes.

Toobin reserves energy to point out the Court’s involvement in politics, despite its members’ constant work to present themselves as neutral political beings. He calls the politics of the Court a continuous element- -ably demonstrated in Bush v. Gore, the case that settled the disputed presidential election of 2000. And he really puts that decision under the microscope.

He writes: “The struggle following the election of 2000 to 36 days, and the Court was directly involved for 21 of them. Yet over this brief period, the justices displayed all of their worst traits–among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court.”

Toobin’s final conclusions: The court will always be political as long as human beings serve as justices. Don’t rely on political appearances before membership on the Court to hold up politically. And, to quote Toobin, “… one factor only will determine the future of the Supreme Court: the outcomes of presidential elections.”

This entry was posted on Wednesday, October 17th, 2007 at 2:58 pm and is filed under All, Politics, Media, Books, Law and Order. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.