With every nomination to the U.S. Supreme Court and every decision on the hot-button issues of abortion, gay rights, and affirmative action, it is apparent that the nation's highest court has not escaped the turmoil of deep and growing political divisions. Drawing on interviews with the justices and other insiders, best-selling author Toobin weighs in with an absorbing look at the politics and personalities behind the men and women who adjudicate our most compelling issues. Conservative power brokers have moved to exert more influence on the Supreme Court and its ability to have more lasting impact than the Congress and the presidency. Toobin looks back over the tenure of Chief Justice William Rehnquist, the most stable in recent years, the considerable influence of moderate Sandra Day O'Connor, and the growing clout of the more conservative members. Toobin details the behind-the-scenes machinations to determine what cases are heard and under what circumstances, as well as who writes the majority opinion and the dissent, all factors that affect the framing of debate on issues. He also relays the politics and personalities of the justices: Rehnquist, who for 30 years was a regular at a poker game among the Washington power elite; Clarence Thomas, traveling with his wife and grandnephew across country in an RV; David Souter, never accepting gifts; Antonin Scalia, bombastic and opinionated but disappointed at his inability to have a greater impact; and O'Connor's eventual disillusionment with the Bush administration and the Republican Party. A compelling look at the power and the politics behind the Supreme Court. Bush, Vanessa
Review
"A major achievement, lucid and probing." —Bob Woodward, co-author of The Brethren
"This is a remarkable, riveting book. So great are Toobin's narrative skills that both the justices and their inner world are brought vividly to life."
—Doris Kearns Goodwin
About the Author
Jeffrey Toobin is the author of such bestsellers as Too Close to Call, A Vast Conspiracy, and The Run of His Life. He lives with his family in New York City.
From The Washington Post
Reviewed by Edward Lazarus 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."
Copyright 2007, The Washington Post. All Rights Reserved.
Excerpt. © Reprinted by permission. All rights reserved.
1
THE FEDERALIST
WAR OF IDEAS
For a long time, during the middle of the twentieth century, it wasn't even clear what it meant to be a judicial conservative. Then, with great suddenness, during the presidency of Ronald Reagan, judges and lawyers on the right found a voice and an agenda. Their goals reflected and reinforced the political goals of the conservative wing of the Republican Party.
Earl Warren, who served as chief justice of the United States from 1953 to 1969, exerted a powerful and lasting influence over American law. The former California governor, who was appointed by Dwight D. Eisenhower, put the fight against state-sponsored racism at the heart of his agenda. Starting in 1954, with Brown v. Board of Education, which outlawed segregation in public education, the justices began more than a dozen years of sustained, and usually unanimous, pressure against the forces of official segregation. Within the legal profession in particular, Warren's record on civil rights gave him tremendous moral authority. Warren and his colleagues, especially William J. Brennan Jr., his close friend and strategist, used that capital to push the law in more liberal directions in countless other areas as well. On freedom of speech, on the rights of criminal suspects, on the emerging field of privacy, the Warren Court transformed American law.
To be sure, Warren faced opposition, but many of his Court's decisions quickly worked their way into the permanent substructure of American law. New York Times Co. v. Sullivan, which protected newspapers that published controversial speech; Miranda v. Arizona, which established new rules for interrogating criminal suspects; even Griswold v. Connecticut, which announced a right of married people to buy birth control, under the broader heading of privacy–all these cases, along with the Warren Court's many pronouncements on race, became unassailable precedents.
Richard M. Nixon won the presidency in part by promising to rein in the liberalism of the Court, but even though he had the good fortune to name four justices in three years, the law itself wound up little changed. Under Warren E. Burger, whom Nixon named to succeed Warren, the Court in some respects became more liberal than ever. It was under Burger that the court approved the use of school busing, expanded free speech well beyond Sullivan, forced Nixon himself to turn over the Watergate tapes, and even, for a time, ended all executions in the United States. Roe v. Wade, the abortion rights decision that still defines judicial liberalism, passed by a 7-2 vote in 1973, with three of the four Nixon nominees (Burger, Lewis F. Powell, and Harry A. Blackmun) in the majority. Only Rehnquist, joined by Byron R. White, appointed by John F. Kennedy, dissented.
Through all these years--from the 1950s through the 1970s–the conservatives on the Court like White and Potter Stewart did not differ greatly from their liberal colleagues. The conservatives were less willing to second-guess the work of police officers and to reverse criminal convictions; they were more willing to limit remedies for past racial discrimination; they deferred somewhat more to elected officials about how to organize and run the government. But on the big legal questions, the war was over, and the liberals had won. And their victories went beyond the judgments of the Supreme Court. The Warren Court transformed virtually the entire legal culture, especially law schools.
***
It was not surprising, then, that on the day after Ronald Reagan defeated Jimmy Carter in 1980, Yale Law School went into mourning. On that day, Steven Calabresi's torts professor canceled class to talk about what was happening in the country. The mood in the room was one of bewilderment and hurt. At the end, the teacher asked for a show of hands among the ninety first-year students before him. How many had voted for Carter and how many for Reagan? Only Calabresi and one other student had supported the Republican.
The informal poll revealed a larger truth about law schools at the time. Most professors at these institutions were liberal, a fact that reflected changes that had taken place in the profession as a whole. The left-leaning decisions of the Warren and Burger Courts had become a reigning orthodoxy, and support among faculty for such causes as affirmative action and abortion rights was overwhelming.
But even law schools were not totally immune from the trends that were pushing the nation's politics to the right, and a small group of students like Calabresi decided to turn these inchoate tendencies into something more enduring. Along with Lee Liberman and David McIntosh, two friends from Yale College who had gone on to law school at the University of Chicago, Calabresi decided to start an organization that would serve as a platform to discuss and advocate conservative ideas in legal thought. They considered several names that would showcase their erudition–"The Ludwig von Mises Society," and "The Alexander Bickel Society"–but they settled on a more elegant choice. They called themselves the Federalist Society, after the early American patriots who fought for the ratification of the Constitution in 1789. Calabresi's guide on the Yale Law School faculty was Professor Robert Bork. Liberman and McIntosh started a Federalist branch at Chicago and recruited as their first faculty adviser a professor named Antonin Scalia.
The idea for a conservative legal organization was perfectly timed, and not just because of the Republican ascendancy in electoral politics. In this period, liberalism may have been supreme at law schools, but it was hardly an intellectually dynamic force. In the 1960s, liberal scholars at Yale and elsewhere were writing the law review articles that gave intellectual heft to the decisions of the Warren Court, but by the eighties, the failures of the Carter administration turned many traditional Democrats away from the practical realities of law to a more exotic passion--advocating (or decrying) a movement known as Critical Legal Studies. Drawing heavily on the work of thinkers like the Italian Marxist Antonio Gramsci and the French poststructuralist Jacques Derrida, CLS devotees attacked the idea that law could be a system of neutral principles, or even one that could create a fairer and more just society. Rather, they viewed law mainly as a tool of oppression that the powerful used against the weak. Whatever its ultimate merits, CLS was singularly inconsequential outside the confines of law schools, its nihilism and extremism rendering it largely irrelevant to the work of judges and lawmakers. At law schools, then, the field was largely open for a vigorous conservative insurgency.
So the Federalist Society both reflected and propelled the growth of the conservative movement. It held its first national conference in 1982, and by the following year there were chapters in more than a dozen law schools. Recognizing the intellectual potential of the society, conservative organizations like the John M. Olin and Scaife foundations made important early grants that allowed the Federalists to establish a full-time office in Washington. The Reagan administration began hiring Federalist members as staffers and, of course, appointing them as judicial nominees, with Bork and Scalia as the most famous examples. (Bork and Scalia both went on the D.C. Circuit in 1982. Calabresi himself went on to be a professor of law at Northwestern.)
The young Federalists who started organizing in the early eighties did not merely strive to recapitulate the tactics of their conservative elders. The prior generation, those who waged their decorous battle against the extremes of the Warren Court, preferred "judicial restraint" to "judicial activism." For conservatives like Justices Stewart or John Marshall Harlan II, who were two frequent dissenters from Warren Court decisions, the core idea was that judges should defer to the democratic branches of government and thus resist the temptation to overturn statutes or veto the actions of government officials. But the new generation of conservatives had more audacious goals. Indeed, they did not believe in judicial restraint, and they represented a new kind of judicial activism themselves. They believed that constitutional law had taken some profoundly wrong turns, and they were not shy about demanding that the courts take the lead in restoring the rightful order.
***
With the election of Ronald Reagan, conservative ideas suddenly had important new sponsors in Washington. Reagan was elected on promises of shrinking the federal government, which he proposed to do by cutting the budgets for social programs. Many in the Federalist Society sought a legal route to the same goal. Back in 1905, the Supreme Court had said in Lochner v. New York that a law that set a maximum number of hours for bakers was unconstitutional because it violated the bakers' freedom of contract under the Fourteenth Amendment's protection of "liberty" and "property." By the 1940s, the Roosevelt appointees to the Supreme Court had repudiated the "Lochner era," and for decades no one had seriously suggested that there might be constitutional limits on the scope of the federal government's power. Then, suddenly, in the Reagan years, some conservatives started questioning that wisdom and asserting that much of what the federal government did was unconstitutional. (The second event ever sponsored by the Federalist Society was a speech at Yale in 1982 by Professor Richard Epstein of the University of Chicago Law School in favor of Lochner v. New York.) While Reagan was arguing that Congress should not pass regulations, the Federalists were saying that, under the Constitution, Congress could not.
Edwin Meese III, Reagan's attorney general in his second term, provided a framework for the emerging conservative critique of the Warren and Burger era when he cal...
