Patterico's Pontifications

9/5/2007

Jeffrey Toobin On The Supreme Court

Filed under: Books,Judiciary — Justin Levine @ 2:08 pm



[posted by Justin Levine]

While at the station today, I received an advance copy of Jeffrey Toobin’s book “The Nine: Inside The Secret World of the Supreme Court”.

Sample observations from the book (pgs. 181-82):

When the justices returned following their Christmas break, in January 2001, their docket for the rest of the term finally vindicated Souter’s prediction from the previous fall: it was a boring year.

The relief was especially pronounced because the criticism of Bush v. Gore left some of the justices shell-shocked. It was one thing to be called wrong, or even reactionary and right-wing – that was routine – but this time critics went after the justices’ motives and their integrity. The decision was called a sham, a political fix, a putsch.

The backlash against the decision affected those in the majority in different ways. Rehnquist, who was older than most of his colleagues and more disengaged from contemporary political life, ignored the hubbub. Scalia, who loved a fight, welcomed this one, too. (Notably, Scalia rarely defended Bush v. Gore on its own stated terms but rather as a necessary intervention in an out-of-control election – as a tourniquet applied to the body politic. “We had to do something, because countries were laughing at us,” Scalia would tell audiences. “France was laughing at us.”) Thomas found only vindication in the outrage at Bush v. Gore.

O’Connor, in contrast, never treasured her role in the decision. She valued her place as the Court’s moderate center, and her association with a decision regarded by many as a partisan outrage made her queasy. Like Scalia, O’Connor would rarely defend the decision on its merits. With a nervous, revealing intensity, she would cite the results of the recounts conducted by the news media as supposed proof that Bush v. Gore had not mattered as much as its critics claimed. O’Connor did not voice regret for her vote – such soul-searching was definitely not part of the O’Connor style – but neither did she enjoy the memory of the case.

Of the five justices in the majority, Kennedy had the hardest time with the aftermath of Bush v. Gore. He had spent most of his adult life as a judge, and he had a special reverence for the profession, “the guild of judges” as he sometimes called it. There would be, it turned out, two Anthony Kennedys on the Supreme Court – the one before December 12, 2000, and the one after – and his transformation was surely one of the most unexpected legacies of this epochal case.

The Justice Kennedy of the post-Bush v. Gore era was shaped by one influence in particular – his exposure to foreign law and foreign judges. After 2000, in part to escape the political atmosphere in Washignton, Kennedy deepened his commitment to the broader world, and his journeys changed him. Given Kennedy’s pivotal role, the Court and the nation would never be the same. The paradox Bush v. Gore is that the justices’ gift of the presidency to a conservative sent the Court in its most liberal direction in years.

UPDATE BY PATTERICO: The publisher wrote me several weeks back asking for an address to send an advance copy, and I replied, but no book yet. I’d be interested to read it, if I ever get time.

12 Responses to “Jeffrey Toobin On The Supreme Court”

  1. Will we see a review from you? I would look forward to it, because I wouldn’t pick up the book normally. I’m not a Toobin fan ( understatement of the week ).

    Robin Roberts (6c18fd)

  2. Isn’t there supposed to be some confidentiality to what goes on behind the scenes of the Supreme Court? Maybe I never had a basis for believing so, but I used to think that, whatever their differences, the Justices and clerks kept things to themselves, that they didn’t use the press to score points, to make themselves look good and their philosophical opponents look bad.

    As time goes on, I see they’re no different than your run of the mill self-serving politician. They make things up in order to justify the outcome they want. They trash and belittle their colleagues in public and to reporters.

    Tell me again why we’re supposed to give them respect?

    stevesturm (d3e296)

  3. The paradox Bush v. Gore is that the justices’ gift of the presidency to a conservative sent the Court in its most liberal direction in years.

    Toobin betrays his bias with one word.

    DRJ (2afbca)

  4. Are you sure you’re not oversimplifying?

    Christoph (92b8f7)

  5. stevesturm: I take it you’ve never read The Brethren, Bob Woodward’s inside look at the Burger Court?

    aphrael (e0cdc9)

  6. I agree with Steve #2. As good judges as they may be before they are appointed, they quickly become delegates to a permanent constitutional convention once they are appointed. However, I do not fault them. I fault the self-seeking assholes in the Congress and the state legislatures who use the courts for everything on which they do not want to take responsibility. Which means I fault us, the voters, for sending those self-seeking assholes back to office term after term.

    nk (a6ecc6)

  7. Toobin is a moron.

    He’s the most under-qualified, unimpressive talking head to have come out of the OJ Simpson TrajedyTV era.

    WLS (077d0d)

  8. aphrael: it was reading Woodward’s book that caused the gloss to start fading.

    stevesturm (d3e296)

  9. Speaking as one of those Florida Democrats who voted for Gore in one of the recount counties, and who thinks Bush has been an absolute disaster as president–I think Scalia was absolutely right. SCOTUS found itself with the opportunity to bring the whole circus to a halt, and the prospect that no one else would be able or willing to bring the circus to a halt–so it did what needed to be done.
    I’m glad at least one of the justices has the sense to acknowledge that.

    kishnevi (e43ff2)

  10. “Toobin is a moron.

    He’s the most under-qualified, unimpressive talking head to have come out of the OJ Simpson TrajedyTV era.”

    Yes, he is. And yes, he is. I can still remember the night Bush v. Gore was handed down, Toobin was on the court house steps, live, trying to read the decision and hosing it completely. Hours later he was still trying say on ABC that Gore won. I think I’ll give the book a pass; there are too many good books out there to waste time on bad ones.

    craig mclaughlin (c9b039)

  11. stevesturm #8:

    aphrael: it was reading Woodward’s book that caused the gloss to start fading.

    It was a good ‘un. As I recall, some of the anecdotes about Douglas were pretty entertaining. Burger’s mediocrity came shining through.

    Itsme (d6df15)

  12. The decision was 7-2, that Florida should follow it’s own election laws.

    That such a decision is considered partisan, only reveals the sense of entitlement among the “progressives”.

    LarryD (feb78b)


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