Tell someone that you just finished reading The Nine by Jeffrey Toobin, and see what kind of reaction you get. You can explain to them that the book is a profile of recent and current members of the Supreme Court and of the events and movements that have shaped their judicial philosophies. Tell them that the author has cracked the facade of that most illustrious of judicial institutions--one that is historically very private--to gain an insider's perspective on the inner workings of the Court. Your partner in conversation will likely be very impressed at your literary accomplishment. You can leave the conversation with a smile at a bit of insider's information of your own, because after having read The Nine you know how imminently readable a book it is. All you have to do is crack open the spine, and from that point on the book pretty much reads itself. No law degree required.
Toobin writes for the New Yorker, and the book is the product of years of covering the Supreme Court for that magazine--and for its literate but popular audience. It is unfortunate that, in ways, the book has been outdated since it hit the shelf--such is the nature of change in today's Court that decisions of the last couple of months might either enhance or defy some of the conclusions Toobin made for his book. But ultimately that is of no matter. The Court that Toobin profiles is one with a significant back-story that goes back decades, and any portrait of the Supreme Court is bound to end in a freeze-frame snapshot of an institution about to change. Indeed, the future of the Court, as the mixed messages of its recent session indicates, is far from settled, but the outcome of the next presidential election will certainly decide whether the Court remains divided almost evenly along ideological lines (with swing voter Anthony Kennedy siding with the Court's conservative faction about 60% of the time). Given the election of John McCain, the Court would be likely to develop a solid right-wing majority the next time a justice is replaced. (Justice John Paul Stevens is eighty-eight. One can imagine abortion opponents hypocritically praying for his death before Bush's term of office comes to a close.)
One thing that you can say about Supreme Court justices as a whole is that they are certainly an idiosyncratic bunch, despite the fact that so many of them at present march in lock-step with each other along ideological lines.
David Souter in many ways stands out. Appointed by George H.W. Bush, Souter was looked at by those on the right as a potential key player in their hope to establish a conservative majority on the Court--one capable of overturning Roe v. Wade--but since his appointment Souter has veered decidedly to the left. Reportedly, Souter does not have a cell phone or an e-mail account, and it is said of him that someone once gave him a television but that he never plugged it in. Toobin also reports that when Souter joined the Court in the late 80s he had never before heard of a popular beverage that some of his colleagues enjoyed--Diet Coke. He seems to have lived in his own professional bubble, aloof to the goings-on around him. There is something fascinating and, in a way, very admirable about Souter's quaint rejection of modern life. While one could argue that a justice should be in touch with the pace of contemporary thinking, one could also say that a justice should be tuned in to the timeless truths of rationality and the law and that the rest is irrelevant.
Clarence Thomas is another stand out, though for very different reasons. I am not the first to speculate that there is a certain degree of self-loathing at the core of Thomas' being. He is, by his own account, a bitterly angry man, and a great deal of his anger is directed at affirmative action, the policy by which he himself was accepted to Yale Law School as well as appointed to the Supreme Court--ironically, as a replacement for Thurgood Marshall. If Thomas displays so much public distaste and bitterness for the policies that made him the man he is today, how must he feel about himself?
I knew this much already about Thomas before reading The Nine. What I did not know, though, was how much Thomas is liked by virtually everyone around him, from his opponents on the Court to cafeteria employees there to the strangers he befriends at NASCAR events and on RV campgrounds. Suddenly, the portrait had become more complex--if anything, more puzzling.
Since the death of Chief Justice William Rehnquist in 2005 and his subsequent replacement by John Roberts, the Court has moved to the far right in a majority of its decisions. This is in a way surprising, since Rehnquist himself was staunchly conservative through most of his career. Despite his continued adherence to conservative ideals, Rehnquist did not pursue them as doggedly once he was appointed Chief Justice. Toobin posits a solid rationale for the softening of Rehnquist's position in recent years, but Rehnquist was not the only one whose stance changed. Others have changed more dramatically--not just David Souter but also John Paul Stevens. In a recent interview for the New York Times Magazine, Stevens, a Ford appointee, said that he still considers himself a Republican and a conservative despite his reliable affiliation with the liberal faction of the court. Perhaps what Stevens does--unlike some of his colleagues--is to isolate his personal political views from his jurisprudence, but it is also possible that his view of "conservatism" was defined in a different era, when it meant something different than what it means now. Only two justices--Ruth Bader Ginsberg and Stephen Bryer--of the current nine were appointed by a Democratic president (both by Clinton); Souter and Stevens are the two who, mavericks in their own way, have kept liberal principles at play in the Court.
As you read The Nine, you encounter not only the big personalities but also the big questions at the heart of any analysis of the Supreme Court. First of all, what is the relationship between the judicial branch and the legislative branch, and to what extent does the Court have power to create--rather than merely explicate--the law? (The traditional answer is that the Supreme Court only interprets the law, but in reality that is simply not the case.) Also, what role should political ideology play in the Court? Regardless of what is proper for the supposedly blind procedures of justice, there is a disturbing degree of ideological bias in the current Court, and this bias will be a factor in the goings-on of the Court most likely for decades to come.
Another question involves the role of precedent in Supreme Court decisions. For generations of Supreme Court justices, respect for precedent has been standard operating procedure. At present, however, the increasingly conservative body in the Court threatens to tear apart decades of precedent on issues such as abortion and affirmative action that even Rehnquist was reluctant to dismantle.
A final major question involves the conflict between, on the one hand, judicial originalism and, on the other, the notion of a living constitution. Originalism is the notion that the preceise meaning of the Constitution was established by the framers at the time of its composition and that any interpretation of the Constitution that strays from the original meaning is invalid. As Toobin informs us, this approach to interpreting the Constitution is historically a pretty new one that emerged in the 1980s, and it is represented for those of us who lived through the tail end of the Reagan era by Robert Bork, whose appointment to the Supreme Court was denied by Congress. Appointees who could be described as roughly Borkian in attitude (Antonin Scalia, Clarence Thomas, and Samuel Alito) sooner or later made their way into the ranks of the nine, and originalism might be said to be the defining force behind the Court's recent overthrow of the Washington, DC, handgun ban. That said, the more one scrutinizes the philosophy of originalism, the more impractical and even foolish it seems.
There is a reason that the Court has not stuck strictly to the framers' intents in a variety of domains: the framers lived in a society that is fundamentally different from our own. At what point does a necessary respect for the foundations of the Constitution become a crippling burden to those of us living in the twenty-first century?
Toobin, who on occasion betrays a mild moderate to liberal bias, hints pretty clearly his belief that the alternative to this notion of originalism, that of a "living Constitution," is really the only sensible way of making the Constitution a document that continues to serve the people. Furthermore, it makes sense in context of the bigger picture. The framers were at the core of a revolutionary generation who acted on the principle that if your government does not work for you, you should replace it. The government has to have some flexibility built into it. It is therefore sensible to think that the framers might intend for the document to change over time to accommodate the needs of a changing society.
It must be said that Toobin keeps his editorializing to a minimum, that he is able to praise both conservative and liberal members of the Court, and that he expands into his own commentary only once the necessary details have been relayed.
Above all, the effect of reading The Nine is to come to a true understanding of the relevance of this judicial body. Although Presidents select members of the Court, the Court in a way has more authority in defining what counts for law than the President does. Although the Supreme Court is a fully fallible institution, Toobin makes his readers understand that the system of checks and balances usually works--that power is thereby distributed to more than just the President and a handful of influential members of Congress. The judicial branch is sometimes referred to as the "Third Branch"--a name that indicates its status as the aspect of government that is easy to forget (in part, perhaps, because we think of it as being so localized; we see the court in action on regional issues and when we get speeding tickets, and we forget that there is more to it than that). What Toobin does with The Nine is to get us to realize that the Supreme Court is a truly powerful body, and that those in the know value the President's right to nominate members as more than just a perk of office.
Justice personified is depicted as being blind, but in truth it is not blind at all and never has been. Toobin gives us a chance to see what the eyes of justice see. The image is sometimes baffling, sometimes illuminating, and always fascinating.
No comments:
Post a Comment