Books

The court we deserve

The courts have no army and no power of excommunication. Their clout depends on the mystique of robes and arcane customs and on the consent of the governed. For most of this nation's existence, the courts have stayed out of trouble by steering clear of it. Slavery, notably the Dred Scott decision, is the famous exception.

But in the 1930s or the '60s -- take your pick -- rulings began coming down that offended large or influential groups of Americans. Some people disagreed with rulings favoring labor unions, restricting arrest procedures, disentangling God from state and school bureaucracies, allowing abortion and upholding civil rights. Civil rights was the hottest button for the critics and still is.

In the 1980s, a group of conservative lawyers, law professors and students coalesced these complaints into a blob of cases that had been "wrongly decided" and began talking about a Constitution "in exile" (from its 19th-century home) that needed to be returned. At the last session of the Supreme Court, when at least six precedents evaporated, it appeared that the exile is on its way home.

Jeffrey Toobin shows how it happened in terms of the members of the court, how they got there and how the country got from the (Chief Justice William) Rehnquist Court to the (John) Roberts Court.

In the last years of the Rehnquist Court, Justice Sandra Day O'Connor emerged as the swing vote on the hottest issues, and she is one of the main protagonists of this story.

A former state lawmaker, she didn't have a coherent judicial philosophy but did have a keen sense of what the public would not abide, and she wrote decisions with that in mind. Her swing position is now occupied by Justice Anthony Kennedy, who also lacks a locked-in judicial philosophy but has a sense of theater, with himself in the lead role.

Or so Toobin says. A staff writer at The New Yorker and a legal commentator for CNN, Toobin bases his story on not-for-attribution interviews with the justices, their clerks and lawyers practicing before the Supreme Court.

Like Bob Woodward, he writes with complete omniscience. Sometimes it is obvious who told him that a justice was irate or gleeful, but sometimes the characterization may be from the justice himself or from someone else, and the reader will never know which.

What he heard includes somewhat newsworthy gossip:

Despite her vote to seat him in 2000, O'Connor was quickly and deeply turned off by President Bush. Justice David Souter was so depressed by the decision in Bush vs. Gore that he considered resigning. Justice Antonin Scalia is bored with the job. Justice Clarence Thomas is as popular inside the Supreme Court building among staff as he is standoffish outside.

The more revealing vignettes in "The Nine," however, are the strategies involved in winning or losing cases before the high court and the corresponding jockeying among justices to get decisions to come out their way.

Lawyers arguing before the court usually know where they can get four votes from the nine justices, and pitch their argument to one or two of the justices who might provide the fifth vote. Toobin follows the justices into their chambers and sees how the pitch plays out.

Over recent years, the court's mystique has eroded.

In the 2006-07 session, Toobin writes, "the conservatives were taking over, and moving swiftly to consolidate their gains. The arguments hadn't changed; the personnel had. Over the past few years, O'Connor had moved to the left so swiftly she probably passed Breyer in that direction, and Rehnquist had become an institutionalist, committed to the stability of the court more than to institutional change."

Now O'Connor has been succeeded by Justice Sam Alito, who sits, smiling, far to her old right. Rehnquist has been followed by Roberts, who called for more unanimity and got 5-4 decisions in one-third of last year's cases.

The kind of court the people get is shaped by the presidents they elect. "We can expect," Toobin writes, "nothing more, and nothing less, than the court we deserve." But, shucks, that was plain when the first "Impeach Earl Warren" billboards went up.

  Comments