Posted by Eugene Volokh:
Jeffrey Toobin's *The Nine: Inside the Secret World of the Supreme Court*:
http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190329191
I'd heard great things about this book, and so I read it with high
expectations. It is indeed well-written, interesting, and, though it's
opinionated, it is generally fairly balanced (though not entirely so).
I didn't find much that was strikingly new there, but I've followed
the Court quite closely; I expect that others will find a good deal of
new material there, and I found some myself.
Still, I was in many instances disappointed by the book. I'm not sure
whether I might have been in too nitpicky a mood, or perhaps had my
expectations set too high. Still, there were more than a few instances
in which I saw some pretty significant omissions or misdescriptions --
sometimes in situations when the facts were seemingly being shoehorned
into the theory that the book was at that point propounding. Let me
give four examples.
1. On p. 301, the book is setting forth the theory that Justice
O'Connor moved to the left in the early 2000s. The theory itself may
well be sound, to some degree. But consider the following passages
that seem to be framed as support for the theory:
For all of O'Connor's fondness for Roberts, his appointment did not
restrain [1] the move to the left that characterized her
jurisprudence and [2] thus [3] the Court's. Indeed, as Rehnquist
and O'Connor prepared to leave, there was a quality of a Prague
Spring in the Court's decisions -- [4] a last gasp of liberalism
before a likely surge to the right. At the end of his tenure, [5]
Rehnquist was never more beloved, but also never more irrelevant.
[Bracketed numbers added. -EV]
Take, for example, the chief's vaunted federalism revolution. [Some
details that go into the federalism debate and mention the Raich
medical marijuana possession case, and that don't mention O'Connor,
omitted. -EV]
In Gonzales v. Raich, six justices, including Kennedy and Scalia,
said that Congress could indeed prohibit private, doctor-authorized
pot farming....
The trouble is that Raich is a counterexample for three of the five
assertions in the first paragraph, not an example. Raich might be seen
as an example of "the Court's [move to the left]" (assertion 3), if
one treats the rejection of a judicially enforceable enumerated powers
doctrine as a left position, and of Rehnquist's "irrelevan[ce]"
(assertion 5). But consider the other three assertions:
* O'Connor didn't move to the left (assertion 1) in Raich: She took
the "right-wing" restraints-on-government-power position in Raich
(something the book never explicitly says).
* The Court's move to the left in Raich did not stem (in a "thus"
relationship, as assertion 2 posits) from O'Connor's position --
it moved in spite of O'Connor's vote.
* Even setting aside the singularly inapt Prague Spring metaphor
(Prague Spring was a brief moment of democracy, preceded by
dictatorship and followed by foreign tanks), Raich is not an
example of "a last gasp of liberalism before a likely surge to the
right" (assertion 4): The six Justices in the Raich majority
remain on the Court, so Rehnquist's and O'Connor's retirements
would either not affect the Raich lineup or turn it into a 7-2 or
8-1 case (if Roberts and Alito are more like Scalia than like
Thomas).
So the example undermines three of the five claims that it's supposed
to exemplify, and supports only the other two. Yet a casual reader who
doesn't know the Raich lineup (and doesn't infer it from the ambiguous
"six justices, including Kennedy and Scalia") might well assume that
the example does fully support the opening paragraph.
([1]Click here to show the remaining examples, and my conclusion.)
2. On p. 90, the book talks, with some admiration, about the strategy
of Jay Sekulow, one of the leading lawyers of the Religious Right.
Sekulow's first Supreme Court case, the book says, was the Jews for
Jesus' challenge to a Los Angeles International Airport ban on all
"First Amendment activities":
The original theory of the case was straightforward. Proselytizing
was a form of religious activity among Jews for Jesus followers. A
blanket ban on the practice thus interfered with their First
Amendment right to the "free exercise" of their religion. That was
how these cases had customarily been argued. Religious expression
was always defended under the Free Exercise Clause.
But Sekulow's relative ignorance about the Constitution turned out
to be his best weapon. Sure, cases involving religion were always
argued under the Free Exercise Clause. But Sekulow came up with a
different theory. The First Amendment, after the religion clauses,
goes on to say that Congress shall make no law "abridging the
freedom of speech." (In a series of cases after World War II, the
Court said that the First Amendment was binding against states and
localities as well as Congress.) Sekulow thought the eviction of
the Jews for Jesus minister was a speech case, not a religion
case....
[Later on p. 94, following a discussion of Sekulow's other
free-speech-based victories for religious speech:] By the
midnineties, the issue was settled. According to the standards of
Supreme Court litigation, Sekulow had emerged out of nowhere to
revolutionize an important rule of law. As a result of his efforts,
it was clear that if a school, airport, or other public forum was
going to open up its facilities to some individuals or groups, the
authorities couldn't exclude religious speakers from the list.
But of course religious speech cases had long been argued under the
Free Speech Clause as well as under the Free Exercise Clause. The 1943
West Virginia Board of Education v. Barnette case -- which the book
discusses just three pages earlier -- struck down a compulsory flag
salute as a violation of Jehovah's Witnesses' free speech rights; the
Witnesses had lost on a religious freedom theory just three years
before, in another case the book cites. In fact, many of the leading
free speech cases of the late 1930s and 1940s, such as Schneider v.
New Jersey (which upheld the right to leaflet) involved "religious
expression" "defended under the Free [Speech] Clause," not the Free
Exercise Clause. Some other leading cases of that era, such as
Cantwell v. Connecticut, involved religious speakers who successfully
sought protection both under the Free Speech Clause and the Free
Exercise Clause.
What's more, in 1981, just six years before the Jews for Jesus case
reached the Supreme Court, the Court's Widmar v. Vincent decision had
upheld religious speech rights on public property -- there, university
classrooms rather than airports -- based on the Free Speech Clause, on
the theory that religious speech couldn't be discriminated against in
a publiuc forum. The same year, the U.S. Court of Appeals for the
Fifth Circuit upheld (in Fernandes v. Limmer) the rights of speakers
to leaflet in airports; the case was brought by a religious group (the
Hare Krishnas), relying on the Free Speech Clause as well as on
religious freedom. And the same year, 1981, the U.S. Court of Appeals
for the Ninth Circuit (in Rosen v. Port of Portland) reached the same
result, relying entirely on the Free Speech Clause, in a case
involving the Jews for Jesus themselves. Sekulow became general legal
counsel for the Jews for Jesus [2]in 1986; in mid-1980, when the Rosen
case was briefed, Sekulow had apparently just graduated from law
school, and was on his way to a job as a lawyer for the IRS.
So it may well be true that Sekulow is, as the book suggests, a
skilled and important legal strategist for the Religious Right. But
his supposed great innovation -- which changed the way "[r]eligious
expression was always defended" -- seems to have been no innovation at
all.
3. On p. 194, the book says:
Even without outright opponents of the death penalty like Brennan,
Marshall, and (eventually) Blackmun, the Court in the Bush years
imposed new limits on executions. In 2002, the Court said judges
alone, without the concurrence of jurors, could not impose death
sentences; also that year, the justices ruled that the execution of
the mentally retarded violated the Eighth Amendment's ban on cruel
and unusual punishments. These rulings all came over the vigorous
dissents of Rehnquist, Scalia, and Thomas -- sometimes joined by
Kennedy or O'Connor, who was an especially strong supporter of the
death penalty -- but the shift on the Court as a whole was
unmistakable.
But the 2002 decision holding that there's a right to jury trial in
death sentencing was joined by Justices Scalia and Thomas (Rehnquist
and O'Connor were the lone dissenters).
4. On p. 309, the book describes the Solomon Amendment case, Rumsfeld
v. FAIR, by saying
In short, Roberts said that he who pays the piper calls the tune.
"Congress is free to attach reasonable and unambiguous conditions
to federal financial assistance that educational institutions are
not obligated to accept," he wrote....
Yet the Court actually refused to rest on the proposition that "he who
pays the piper calls the tune," and instead held that the government
could mandate access to universities by military recruiters even if
this was a flat mandate rather than a condition on federal assistance:
This case does not require us to determine when a condition placed
on university funding goes beyond the "reasonable" choice offered
in Grove City and becomes an unconstitutional condition. It is
clear that a funding condition cannot be unconstitutional if it
could be constitutionally imposed directly. Because the First
Amendment would not prevent Congress from directly imposing the
Solomon Amendment's access requirement, the statute does not place
an unconstitutional condition on the receipt of federal funds.
The "Congress is free" quote is from Grove City, and was quoted by
Chief Justice Roberts only as part of his description of Grove City.
* * *
So how big a deal is all this? Maybe not that much; maybe these errors
and some others I found are about par for the course even for a
well-written book. Still, they made me worry how accurate some of the
other material was -- material that I didn't know as much about, and
thus couldn't fact-check myself.
([3]Hide examples 2 to 4.)
References
1. file://localhost/var/www/powerblogs/volokh/posts/1190329191.html
2. http://jewsforjesus.org/answers/lifestories/jay_sekulow
3. file://localhost/var/www/powerblogs/volokh/posts/1190329191.html
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