by Jeffrey Toobin, Doubleday, September 18, 2007, 0385516401
Jeffrey Toobin turns a boring subject into an exhilirating read.
It's a hitory book without footnotes, which often distract me from the
story part of history. Toobin dives into the Rehnquist court, which
was far less conservative than the political makeup of the court would
lead you to believe.
I haven't read The Brethren by Bob Woodward and Scott Armstrong yet.
After reading Toobin's book, I'm not sure I would. Toobin explains
how the court works in enough detail that I would probably find The
Brethen to be a bit much. While it wasn't a slog to get through --
on the contrary, it was a fast read -- it was enough about the Supreme
Court for me.
Toobin covers the people brilliantly. I love how he paints their
personalities into each case. I cringed when I read about the 2000
election fiasco, and I lived through Souter's pain after the verdict.
The court was at a low point during that decision.
He ends on an interesting and upbeat point:
[p340] But the Court is a product of a democracy and represents, with
sometimes chilling precision, the best and the worst of the people.
We can expect nothing more, and nothing less, than the Court we
[p142] Goldwater believed in small government and states'
rights, but he never signed on for expressions of public piety and
regulation of private conduct. Neither, for the most part, did
O'Connor. (And she always remembered Goldwater's salty response to
Jerry Falwell's assertion that "good Christians" should be wary of
O'Connor's nomination. "I think every good Christian ought to kick
Falwell's ass," the senator said.)
[p173] Kennedy responded by adding what became the most notorious
senrence in the opinion-indeed, a single senrence that summed up so
much of what was wrong with what the Court did. "Our consideration is
limited to the present circumstances," Kennedy wrote, "for the problem
of equal protection in election processes genetally presents many
In other words, the opinion did nor reflect any general legal
principles; rarher the Court was acting only to assist a single
individual -- George W. Bush. That was not what Kennedy meant, but that
was what he wrote. The sentiment amounted to a natural consequence of
the Court's misbegotten encounter with the 2000 elecrion. The business
of the Supreme Court is to take cases that establish principles of
general application. But as Kennedy's sentence all but conceded, there
was no general principle in Bush v. Gore -- only a specific designation
of the winner of one election. More than any other, this sentence
invited skepticism about the majority's true motives in the case.
[p176] There was only one bright Spot in this dismal panorama. John
Paul Stevens's dignified, clearheaded, and insistent eloquence honored
the Court. Alone among the justices, Stevens was consistent and
logical and constitutionally sound in his thinking. From his home in
Fort Lauderdale, he composed a peroration that serves as the best
epitaph for this sorry chapter in the Court's history: "The [per
curiam opinion] by the majority of this Court can only lend credence
to the most cynical appraisal of the work of judges throughout the
land. It is confidence in the men and women who administer the
judicial system that is the true backbone of the rule of law. Time
will one day heal the wound to that confidence that will be inflicted
by today's decision. [p177] One thing, however, is certain. Although
we may never know with complete certainty the identity of the winner
of this year's Presidential election, the identity of the loser is
pellucidly clear. It is the Nation's confidence in the judge as an
impartial guardian of the rule of law." (At the last moment, one of
Stevens's clerks prevailed on him, just this once, to give up his
favorite word -- pellucidly -- and substitute the more familiar
perfectly, which is how the famous sentence now reads.)
David Souter alone was shattered. He was, fundamentally, a very
different person from his colleagues. It wasn't just that they had
immediate families; their lives off the bench were entirely unlike
his. They went to parties and conferences; they gave speeches; they
mingled in Washington, where cynicism about everything, including the
work of the Supreme Court, was universal. Toughened, or coarsened, by
their worldly lives, the other dissentets could shrug and move on, but
Souter couldn't. His whole life was being a judge. He came from a
tradition where the independence of the judiciary was the foundation
of the rule of law. And Souter believed Bush v. Gore mocked that
tradition. His colleagues' actions were so transparently, so crudely
partisan that Souter thought he might not be able to serve with them
Souter seriously consideted resigning. For many months, it was not at
all clear whether he would remain as a justice. That the Court met in
a city he loathed made the decision even harder. At the urging of a
handful of close friends, he decided to stay on, but his attitude
toward the Court was never the same. There were times when David
Souter thought of Bush v. Gore and wept.
[p339] Fot rhis reason, Breyer's wan longing for Stare decisis will
stir few heartS. Breyer and his liberal colleagues (joined on this
occasion by Kennedy) did nor care abour state decisis when they voted
in Lawrence v. Texas to overrurn the Courr's barely seventeen-year-old
decision in Bowers v. Hardwick. Rather, rhey believed that the rime
had come to tecognize that it was an abomination ro allow ctiminal
punishment of consensual homosexual sex and voted accordingly. On rhat
occasion, as so often, ideology trumped precedent. Ir is, of course,
possible ro overs rate rhe flexibiliry in the meaning of rhe
Constitution. Honorable judges always terher their views to the words
of the document, irs hisrory, and the precedents, so the jusrices'
freedom to interpret is vast but not absolure.
Still, when it comes to the incendiary political issues that end up in
the Supreme Court, what matters is not the quality of the arguments
but the identity of the justices. There is, for example, no meaningful
difference berween Scalia and Ginsburg in intelligence, competence, or
ethics. What separates them is judicial philosophy -- ideology -- and
means everything on the Supreme Court. Future justices will all likely
be similarly qualified to meet the basic requirements of the job. It
is their ideologies that will shape the Court and thus the nation.
So one factor -- and one factor only -- will determine the future of
the Supreme Court: the outcomes of presidential elections. Presidents
pick justices to extend their legacies; by this standard, George
W. Bush chose wisely. The days when justices surprised the presidents
who appointed them are over; the last two purported surprises, Souter
and Kennedy, were anything bur. Souter's record pegged him as a
moderate; Kennedy was nominated because the more conservative Robert
Bork was rejected by the Senare. All of the subsequently appointed
justices -- Thomas, Ginsburg, Breyer, Roberts, and Alito -- have
turned out precisely as might have been expected by the presidents who
appointed them. That will almost certainly be true, too, of the
replacements for the three justices most likely to depart in the neat
future -- Stevens, Souter, and Ginsburg.