Sunday, May 03, 2009

Top Books on the Supreme Court

The Nine

It's not laws or constitutional theory that rule the High Court, argues this absorbing group profile, but quirky men and women guided by political intuition. New Yorker legal writer Toobin (The Run of His Life: The People v. O.J. Simpson) surveys the Court from the Reagan administration onward, as the justices wrestled with abortion, affirmative action, the death penalty, gay rights and church-state separation. Despite a Court dominated by Republican appointees, Toobin paints not a conservative revolution but a period of intractable moderation. The real power, he argues, belonged to supreme swing-voter Sandra Day O'Connor, who decided important cases with what Toobin sees as an almost primal attunement to a middle-of-the-road public consensus. By contrast, he contends, conservative justices Rehnquist and Scalia ended up bitter old men, their rigorous constitutional doctrines made irrelevant by the moderates' compromises. The author deftly distills the issues and enlivens his narrative of the Court's internal wranglings with sharp thumbnail sketches (Anthony Kennedy the vain bloviator, David Souter the Thoreauvian ascetic) and editorials (inept and unsavory is his verdict on the Court's intervention in the 2000 election). His savvy account puts the supposedly cloistered Court right in the thick of American life. (A final chapter and epilogue on the 2006–2007 term, with new justices Roberts and Alito, was unavailable to PW.) (Sept. 18)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved. --This text refers to the Hardcover edition.

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. --This text refers to the Hardcover edition.

The Supreme Court

U.S. Supreme Court Chief Justice William H. Rehnquist sets a simple goal for himself: "This book is designed to convey to the interested, informed layman, as well as lawyers who do not specialize in constitutional law, a better understanding of the role of the Supreme Court in American government." He succeeds fabulously. The Supreme Court, an updated version of a book originally published in 1987, is a succinct and readable account of the Court's past and present. Rehnquist avoids getting bogged down in the minutia of particular cases, even as he deftly covers the details of several extremely important ones, such as Marbury v. Madison and Dred Scott v. Sandford.
The most interesting parts of the book explain how the current Court goes about its business. In these fascinating chapters, Rehnquist consistently includes nifty touches, such as how his law clerks decide who gets to work on which cases and the strict seating protocol that is followed when the nine justices--and nobody else--sit in conference to discuss their votes. If there's a knock on the door, it's the most junior justice who must answer. They don't really discuss cases at all during these meetings, but rather state their views. "I do not believe that conference discussion changes many votes," writes the Chief Justice. Oral arguments, on the other hand, are different: "In a significant minority of the cases in which I have heard oral argument, I have left the bench feeling differently about a case than I did when I came to the bench."

Rehnquist briefly lays out his own theory of jurisprudence in a short concluding chapter: "Go beyond the language of the Constitution, and the meaning that may be fairly ascribed to the language, and into the consciences of individual judges, is to embark on a journey that is treacherous indeed." Yet The Supreme Court largely skips comment on existing controversies, such as abortion rights, race-based policies, or the outcome of the 2000 presidential election. The book is exactly what Rehnquist promises: An accessible and enlightening introduction to a vital institution. --John J. Miller --This text refers to the Hardcover edition.

From Library Journal

As the recent decision concerning the 2000 Presidential election shows, the U.S. Supreme Court remains a vital institution that decides key political and social controversies. Rehnquist, chief justice of the United States Supreme Court since 1986 and associate justice from 1972 to 1986, gives lay readers a clear understanding of U.S. Supreme Court decisions and the manner used to decide cases. This substantial revision of the first edition (1987) provides interesting new insights about previous Supreme Court behavior and some of their major decisions, such as Marbury v. Madison (1803); Dred Scott v. Sandford (1857); and Ex parte Milligan (1866). He also provides an excellent analysis of how and whether the Court reflects the temper of the times. Rehnquist adds two new chapters, "The New Deal Court" and "The Warren Court," which provide new insights into his views about constitutional principles. An excellent work for general public libraries and for nonlawyers interested in the Supreme Court; recommended for all public libraries as well as academic libraries.
-DSteven Puro, St. Louis Univ.

Copyright 2001 Reed Business Information, Inc. --This text refers to the Hardcover edition.

Supreme Conflict

With its closed chambers and formal language, the Supreme Court tends to deflect drama away from its vastly powerful proceedings. But its mysteries hold plenty of intrigue for anyone with the access to uncover them. In Supreme Conflict, Jan Crawford Greenburg has that access, and then some. With high-placed sourcing that would make Bob Woodward proud, she tells the story of the Court's recent decades and of the often-thwarted attempts by three conservative presidents to remake the Court in their image. Among the revelations are the surprising influence of the most-maligned justice, Clarence Thomas, and the political impact of personal relations among these nine very human colleagues-for-life. Written for everyday readers rather than legal scholars, her account sidesteps theoretical subtleties for a compelling story of the personalities who breathe life into our laws. --Tom Nissley
Crawford graduated from the University of Chicago Law School, and was a legal affairs reporter for the Chicago Tribune and Supreme Court correspondent for PBS's NewsHour before becoming the legal correspondent for ABC News. We had the chance to ask her a few questions about Supreme Conflict:

Questions for Jan Crawford Greenburg How hard was it to get the access to justices and clerks that you had for this book? Does the culture of the Court promote that kind of openness about their deliberations?

Jan Crawford Greenburg: Hard! And let me tell you it took some time--they weren't flinging open the doors of their chambers for the first few years I was covering the Court. It takes awhile to build relationships and trust, and I was fortunate enough to do that during the dozen years I've been covering the Supreme Court. As for openness, I think the culture of the Court instead promotes anonymity and privacy. The justices aren't like the people across the street in Congress, or down Pennsylvania Avenue in the White House. They don't hold press conferences or solicit media coverage of their views. They speak through their opinions. I was fortunate that they also chose to speak with me for this important book about the direction of the Supreme Court and its role in our lives. Harry Blackmun's notes must be a treasure chest for Court historians. Could you describe what you found there?

Greenburg: A treasure chest is an understatement. Harry Blackmun took extraordinarily detailed notes--almost breathtaking in their scope and level of detail. (He would even write down what lawyers were wearing when they'd appear in Court to argue a case.) He recorded the justices' comments during their private conferences--when they discuss cases--and he took down their votes. And he kept all the key memos and letters that the justices would send back and forth when they were discussing a case. It was a tremendous window into the Court's inner sanctum, during some of the most pivotal years for the institution. One of the biggest revelations of your book is your characterization of Clarence Thomas as far more influential, even in his first year on the Court, than he's usually given credit for. Could you describe what his role on the Court has been?

Greenburg: Clarence Thomas has been the most maligned justice in modern history--and also the most misunderstood and mischaracterized. I found conclusive evidence that far from being Antonin Scalia's intellectual understudy, Thomas has had a substantial role in shaping the direction of the Court--from his very first week on the bench. The early storyline on Thomas was that he was just following Scalia's direction, or as one columnist at the time wrote, "Thomas Walks in Scalia's Shoes." That is patently false, as the documents and notes in the Blackmun papers unquestionably show. If any justice was changing his vote to join the other that first year, it was Scalia joining Thomas, not the other way around. But his clear and forceful views affected the Court in unexpected ways. Although he shored up conservative positions, his opinions also caused moderate Justice Sandra Day O'Connor to back away and join the justices on the Left. Not every Supreme Court confirmation is a battle, even when the Senate and the President are from different parties. What separates the candidates who sail through from the ones who get put through the wringer?

Greenburg: The recent appointment of Samuel Alito shows a justice with a clearly conservative record can get confirmed--and even pick up some votes from Democrats. Maybe the secret is developing a reputation as a fair and nonpartisan judge on a federal appeals court. At his hearings, liberal and conservative judges who had worked with him on the appeals court testified in his behalf, as did his law clerks--some of whom were self-identified liberals. Alito was the conservative counterpart to Clinton nominee Ruth Bader Ginsburg. She had been an outspoken advocate for liberal causes (including the ACLU), but she'd developed a reputation as a fair and thoughtful judge on the federal appeals court, garnering respect from both sides. How much do Americans know about how their federal courts work? What should they know?

Greenburg: Most Americans, understandably, think about trials and drama when the issue of the courts is raised. But the appeals courts--and the Supreme Court--remain mysterious, even though those courts have an enormous impact on American life. The judiciary is one of the three branches of government, but its decisions take on outsized importance at times. It can provide a vital check against abuse of individual rights by government--but it also can usurp the role of the people when it reaches out and takes on issues that more appropriately belong in the purview of the other branches. Even though you show how our expectations for where new members will take the Court are so often wrong, I'll ask you anyway: What do you expect in the next few years from the Roberts Court?

Greenburg: To be more conservative than the one led by Chief Justice William Rehnquist. John Roberts himself is a solid judicial conservative who believes the Court has too often taken on issues that belong in the realm of elected legislatures. He is advocating a more restrained approach, with greater consensus among the justices. In addition, Justice Alito replaced key swing-voter Sandra Day O'Connor, the Court's first female justice. O'Connor's vote often carried the day on the closely divided Court--and she typically sided with liberals on social issues like abortion, affirmative action, and religion. Alito is more conservative, and I expect to see the Court turn to the right on those and other issues.

More Top Books on the Supreme Court

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