Posted by Orin Kerr:
My Take on -- And My Frustration With -- Jeffrey Toobin's "The Nine":
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190610354
I just finished reading [1]Jeffrey Toobin's new book about the Supreme
Court. Like [2]Ed Whelan, and to some extent, [3]Eugene, I found
myself rather frustrated by it. In this post I wanted to explain why.
First some background. Books purporting to offer an "inside" picture
of the Supreme Court generally mix and match three different types of
reporting: first, inside reports from clerks and/or Justices willing
to speak with the author (aka "the good stuff"); second, the public
record of cases, arguments, opinions; and third, the author's
characterization of events and efforts to fill in gaps that allow the
author to weave a good narrative.
On the whole, I thought Toobin's book had some but not lots of "the
good stuff," the inside scoop from Justices and clerks. The most
important contribution to the book is probably its substantial
material on how the world looks from the perspective of Justices
O'Connor and Breyer, both presumably sources for the book. (In case
you're wondering, the gist of it is that both of them envision/ed
their job as finding workable and sensible solutions to practical
problems and avoiding things that seem extreme.) For Supreme Court
geeks, there are some interesting tidbits here and there; some I was
familiar with, and some were new.
At the same time, I found myself fustrated by Toobin's overall
narrative and tone. Toobin sees the Supreme Court as all politics, and
his politics are obviously pretty liberal. As a result, the book
follows a simplistic and sometimes caricatured political narrative.
The liberal Justices tend to be portrayed quite favorably as wise and
able heroes. The conservative Justices and conservative legal ideas
genetally tend to be seen as scary, hypocritical, and/or out of touch.
With one notable exception: when conservative Justices make liberal
rulings, they too are seen as wise and able.
Toobin's fascination with the [4]seemingly nonexistent "Constitution
in Exile" movement is particularly telling. VC readers will know this
movement either doesn't exist or consists of three dudes meeting for
dinner once in a while. But Toobin seems to think this "movement" is
central to conservative legal thought. He mentions it by name 6 or 7
times, and appears to see it as an important part of the dynamic at
the Supreme Court. For example, Toobin writes that Justice Souter
"moved left" after 2000 because he "had a visceral horror of such
conservative undertakings as the Constitution in Exile." (p245) In
discussing how little was known of President Bush's legal views,
Toobin writes: "As for a more detailed philosophy, like whether Bush
supported the Constitution in Exile -- and a return to a 1930s
conception of the role of the federal government -- no one really
knew." (p260). Toobin uses this technique to make conservatives seem
scary and hypocritical: he writes that although the jurisprudence of
traditional "conservatives like Potter Stewart" (?) embraced judicial
restraint and deference to other branches, "the new generation of
conservatives . . . did not believe in judicial restraint, and they
represented a new kind of judicial activism themselves." (p14) Subtle,
eh?
For the rest of the post, click here.
I thought Toobin's caricature of Justice Thomas was particularly
unfair. Eugene [5]has mentioned some of the difficulties with Toobin's
coverage of Thomas. Here's another passage that gives you an idea of
the problem:
Probably the greatest contrast between Thomas and his colleagues
was that he fundamentally did not believe in stare decisis, the law
of precedent. If a decision was wrong, Thomas thought it should be
overturned, however long the case may have been on the books. . . .
All justices of the Supreme Court, from Brennan on the left to
Scalia on the right, develop something close to reverence for the
Court's precedents; no one besides Thomas would have dismissed two
hundred years of stare decisis in such a cavalier way. [p102-103]
I find this characterization quite puzzling. Obviously Justice
Thomas believes in stare decisis: If you read his opinions, every
single one cites precedents for positions that he is accepting without
reconsidering them. Justice Thomas believes less in stare decisis in
some contexts where other Justices believe in it much more, but it's
inaccurate to suggest this means Justice Thomas has no belief in stare
decisis at all. Similarly, it seems quite odd if not completely
bizarre to suggest that Justice Brennan had "reverence" for stare
decisis. Elsewhere in the book, Toobin notes Justice Brennan's famous
line that the most important rule of law at the Supreme Court was the
"rule of five" -- with five votes, you can do anything. Kinda hard to
square that with reverence for precedent, eh?
([6]hide)
References
Visible links
1. http://www.amazon.com/Nine-Inside-Secret-World-Supreme/dp/0385516401
2. http://volokh.com/posts/1190656480.shtml
3. http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190329191
4. http://www.volokh.com/posts/1104346631.shtml
5. http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190395897
6. file://localhost/var/www/powerblogs/volokh/posts/1190610354.html
Hidden links:
7. file://localhost/var/www/powerblogs/volokh/posts/1190610354.html
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