September 18, 2007

Jeffrey Toobin on the 3 most important revelations in his new book "The Nine: Inside the Secret World of the Supreme Court."

"[A]t descending levels of specificity."

Inside the Secret World of the Supreme Court
-- that's the subtitle -- so this better be pretty revealing.
The theme of the book – not exactly a revelation, I suppose – is the growth of the conservative movement and its effect on the Court.
Right: That is in no way a revelation.
I start with the birth of the Federalist Society shortly after President Reagan’s election and show how young conservatives like John Roberts and Samuel Alito were drawn to Washington and flourished there. To see that story spelled out over twenty-five years was – to me, anyway – a revelation.
That's not inside the Supreme Court either. (Where, I've heard tell, it's a secret world.)
Second, the book contains the first detailed, behind-the-scenes reconstruction of what happened at the Court during Bush v. Gore – a case which obsesses and fascinates me. As time passes, I believe the significance of the case cannot be overstated.
Hey, I feel like I already read that book by Jeffrey Toobin. It looked like this. How can this possibly be the "first" anything about Bush v. Gore? Specify a revelation. Jeffrey Toobin has realized, with the passage of time, that the case is really, really, incredibly important, even more important than the last time he wrote a book about it. That may be a revelation, but it's a revelation about the inside of Jeffrey Toobin's head, not the inside of the Supreme Court.

Where's my Secret World?
Third, I disclose that David Souter nearly resigned in protest over Bush v. Gore. That story, in one way, illustrates the magnitude of the case.
That's it! That is the nugget from the inner sanctum. David Souter nearly resigned. Because if he had actually resigned, it wouldn't have been a secret. Good thing he thought twice and kept his seat, because otherwise there wouldn't have been any news from the Secret World.

But wait. Toobin had "interviews with the justices themselves" -- the dust jacket says. Asked about that, he says he won't say how many of the justices he interviewed. And he says some of the law clerks told him to go to hell. So that's something from the Secret World. Attempts by Toobin to gain access are met with curses.

And he did talk to Sandra Day O'Connor, albeit from outside the Secret World. Per Toobin, she's "appalled" at the Roberts Court.

29 comments:

SteveR said...

I'm thinking he really got that information from India.

Cedarford said...

And he did talk to Sandra Day O'Connor, albeit from outside the Secret World. Per Toobin, she's "appalled" at the Roberts Court.

The only thing to miss about O'Connor is those wonderful Scalia dissents where he wiped the floor with O'Connors vapid illogic in her later decisions. His way of saying how "appalled" he was with O'Connor.

The Lady at least had the presence of mind to retire and salvage some of her seniscient dignity. Shame she couldn't take along into retirement her stupid "tests" and sense that affirmative action should last another 25 years because...well she felt that sounded about right when she rolled out of bed that day

Simon said...

I think his unsourced accusation that Scalia had some complicity in the per curiam is new, but beyond that, I don't see anything in here that wasn't already in the public domain. That Souter almost resigned is dealt with in a terse sentence or two. In general, I'm not particularly impressed with the book, and my first impressions have held true. I'm really at a loss for anything nice to say about the book other than the fact that it flies off the page easily, but it's really a very partisan piece, and seems riddled with problems as a result. If you wanted an unbiased account of the Rehnquist court, Greenburg's written one. If you wanted a critical account, Tushnet's written one. So what's Toobin's book's niche? It seems designed to provide fodder for people who've already made up their mind that they hate the court but who want a book to cite saying how horrible the conservatives and Kennedy are.

Paddy O. said...

Bush v. Gore will within fifteen years cause not only the destruction of all life on this planet but will result in a tear in the fabric of reality itself that envelops and annihilates the whole universe.

Methinks the significance of Bush v. Gore can in fact be overstated.

Quite easily really. Often in pursuit of book sales.

John said...

I fail to see how Bush versus Gore is so imprinting. It was a bizarre set of facts and an out of control Florida Supreme Court that thumbed its nose at the first Supreme Court ruling so brazenly that the Court had little choice but to do something. I don't think those facts are likely to ever appear again and I doubt that Bush versus Gore will ever amount to anything beyond required reading in Con Law classes to provide lefty profs the opportunity to pontificate on the evilness of George Bush. Toobin of course never bothers to explain why the case is so important beyond the fact that it caused Suiter to threaten to resign.

To me the real scandal of the Supreme Court is the power of law clerks. Here we have a group of people who are hired in secret, subject to no accountability to anyone beyond the justice that hired them, never subject to any democratic check, and have never practiced law yet are given enormously influential positions. It is an incredibly anti-Democratic system. Especially now that judges stay on the bench for partisan purposes until they literally are dragged out feet first, Supreme Court clerks have become this secret Praetorian Guard ruling the county's judiciary. Why do justices have or need individual clerks? They are highly paid, experienced brilliant people. Further, unlike District and Circuit Courts, the Supreme Court sets its own work load by the certiorari process. If they are not up to doing their own research and writing their own opinions, they are not up to such an important job. I would support Congress abolishing the position of judicial clerk and replacing it with a central office of hired and vetted lawyers and paralegals tasked to provide justices with research and technical support but not with drafting opinions. Let’s end this racket right now.

Zeb Quinn said...

You can make the case that Bush v Gore is a significant cause of global warming.

Roger said...

John: Very well said and thanks for reminding us who really runs SCOTUS. Max Weber is shown to be right again.

hdhouse said...

ahhh but John ..if not them, who then to set the top of the salary scale for new lawyers?

Simon said...

John, my impression is that the power of law clerks is greatly overstated by the people most likely to speak to the press about the power of law clerks: other law clerks.

As to the court's workload. Let's suppose that there are about 8000 cert petitions filed in a term; for each petition, there's at least one opinion below and a bunch of cases cited in the petition. For each case you take, you have a brief, a reply brief, probably an amicus brief or two, all of which brings with it a bunch more cited cases. On top of that, you've got researching, writing and thinking about the eighty or so cases the court takes. The workload is significant, and the question's one of how the justices can most profitably use their time so as to produce the best work they can. It's telling that Justice Rehnquist said much the same thing that you do about law clerks before joining the court, and quickly discovered he was wrong.

And lastly, I don't think talking about how democratic law clerks are is particularly useful when the courts are by design the counter-democratic branch. Law clerks aren't approved by any democratic process, but they serve for a single year under the supervision of judges who themselves aren't elected, are appointed once, for life, and who are by design frequently going to be put into the position of telling a democratic majority to take a hike.

I'm not really persuaded there's any significant harm caused by law clerks, per se. Although I do recognize that they can help facilitate problems, I think it's missing the point to say that Marshall's law clerks may have helped delay his departure from the bench.

SMGalbraith said...

It seems to me that the key change in the Court is the increased willingness of the Justices to rely on foreign law and foreign court rulings when they rule on the Constitutionality of US laws (not treaties).

I don't know about others but I don't want my liberty influenced by the rulings in Indonesia courts.

Nothing against you Indonese judges reading this.

Courts across the globe issue thousands (tens of thousands?) of rulings annually. How to choose which to read - much less use - and which to dismiss?

Can't be done.

As Scalia brilliantly pointed out, this is like going to a football stadium filled with 100,000 people, looking out over the crowd, and singling out your friends.

SMG

Simon said...

SMGalbraith said...
"It seems to me that the key change in the Court is the increased willingness of the Justices to rely on foreign law and foreign court rulings when they rule on the Constitutionality of US laws (not treaties)."

This is where I shamelessly plug my article on the subject, The Misguided Search for the 'One Law - and the Ongoing Struggle to Articulate it Correctly'. It's worth noting that the subject may well return to the front burner this term in Kennedy v. Louisiana.

paul a'barge said...

Apalled at the current court ...

Well. One certainly would hope so.

For decades, these mutts have had their sweat-stained paws all over the cause of justice in America, legislating from the bench and perverting the Constitution and the American way.

Now, history is prying the levers of justice from their sweat-stained paws, and they're whining.

One should certainly hope so. I'd be very concerned for our country if they were not whining.

I love the sound of Toobin whining in the morning ... it sounds like ... victory

knoxwhirled said...

their sweat-stained paws

gross! I'm definitely apalled by sweat-stained paws

George said...

The lead of the USA Today book review recounts a Toobintale of Scalia ordering a limo driver to run a red light.

Zzzzzzzzzz.

vnjagvet said...

Toobin:

Master of overstatement. And it is guaranteed to sell to a certain demographic.

Simon said...

George, that's correct. It's one of the lesser-told stories from the time that Rehnquist insisted on opening the court in a snowtorm. Scalia, Kennedy, and a litigator due to argue a case before the court were making a mad dash through several feet of snow to be on time. Souter got stuck too, apparently, and that particular judgment call - to hold argument anyway - doesn't seem to have been the high point of their esteem for the Chief.

Sloanasaurus said...

Aside from the fact that the Court was right on Bush vs. Gore, they were also lucky. All the recounts after the fact showed that Bush won Florida. If the Court had ruled for Gore, and Gore was made president, there would have been trouble.

Simon said...

Sloanasaurus said...
"Aside from the fact that the Court was right on Bush vs. Gore, they were also lucky."

True, but the decision was correct in spite of the per curiam opinion. To say the equal protection clause protects voting rights is to say that the almost contemporaneous Fifteenth Amendment, and the subsequent Nineteenth, Twenty-third, Twenty-fourth and Twenty-sixth amendments nugatory. I can't foresee ever being persuaded to buy into that. The Article II grounds advanced by the chief were sufficient to decide the case and the court ought to have stopped there.

David said...

Jeff wrote a sports column for the Harvard Crimson called Inner Toobin. Seems like that would have been the perfect title for this book. :-)

Simon said...

Adding to my 7:58 PM comment, I might as well be honest about it: I apply the view that Article II grants authority to state legislatures to appoint electors consistently to Articles I and V, too. When Article I requires "the consent of the legislature of the state" for the purchase of land by Congress and permits the legislature of each state to "prescribe" the "times, places and manner of holding elections for Senators and Representatives," and when Article V requires "the application of the legislatures of two thirds of the several states" to "call a convention for proposing amendments" (and the "ratifi[cation] by the legislatures of three fourths of the several states" of amendments), my view is that the legislature is commandeered, not the legislative process of the state. A governor has no role in these activities, even if he would otherwise have such authority under the state constitution. When exercising these powers, the state legislatures are not acting pursuant to any powers they obtain from their state Constitution; they act outside of whatever norms or strictures imposed by their own Constitutions because they are acting qua Article I, II or V actors. Thus, the procedures I noted a year ago in Wyoming, Tennessee and Rhode Island requiring the governor's signature for U.S. Constitutional amendments are Constitutionally infirm except to the extent of ceremony. Under my theory of Article V, if the legislature of Wyoming ratifies a U.S. Constitutional amendment yet the Governor vetoes it, Wyoming has ratified the amendment notwithstanding state rules to the contrary.

rcocean said...

"Under my theory of Article V, if the legislature of Wyoming ratifies a U.S. Constitutional amendment yet the Governor vetoes it, Wyoming has ratified the amendment notwithstanding state rules to the contrary."

I'm no con law student, but isn't that the same procedure as amending the constitution. I.e the President has nothing to do with passing an amendment. If 2/3 of both houses pass the amendment its on to the states. BTW, isn't that the same an veto override?

Mortimer Brezny said...

When exercising these powers, the state legislatures are not acting pursuant to any powers they obtain from their state Constitution; they act outside of whatever norms or strictures imposed by their own Constitutions because they are acting qua Article I, II or V actors.

That's interesting. Even under your theory, why can't the legislature cede some of its power to the governor in the same way Congress sidesteps Article 1, sec. 1 in the creation of the administrative state? You could be a hardcore nondelegation doctrine guy, but you don't have to be. And, given this theory, what's your take on Bush v. Gore and U.S. Term Limits v. Thornton?

Assistant Village Idiot said...

Souter is from the next town over in rural NH, and if he couldn't make it to work in a DC snowstorm then he's lost all respect from me.

rcocean said...

"jeffrey Toobin has realized, with the passage of time, that the case is really, really, incredibly important, even more important than the last time he wrote a book about it."

LoL.

Toobin - the Geraldo! of legal analysis.

Simon said...

rcocean - I'd not thought of it in those terms before, but sure - it produces a nice symmetry between the two tiers of the amendment process.

Mort - the comment stemmed from my view on Bush v. Gore. ;) I think that Rehnquist's opinion was on the money, and I only very grudgingly accept the decision of the three to join the per curiam on grounds of pure necessity if nothing else (a basis I think profs. Greenawalt and Althouse recognize generally and specifically, respectively).

Thornton is a case I've been saving for a rainy day to write about, and have promised Patterico a post on the subject of it since he and I disagree, but generally-speaking, I sided with the majority in that case.

I'd not thought of it in terms of non-delegation before, but off the top of my head, I don't think it's exactly analagous to non-delegation, because whatever your view on non-delegation may be, while Congress may not actually review and approve regulatory decisions delegated to agencies, it could do so, at least in the sense of revoking authority to make those decisions, while the insertion of the state governor into the process necessarily provides a veto separate to and functionally superior to the legislature.

Mortimer Brezny said...

I'd not thought of it in terms of non-delegation before, but off the top of my head, I don't think it's exactly analagous to non-delegation, because whatever your view on non-delegation may be, while Congress may not actually review and approve regulatory decisions delegated to agencies, it could do so, at least in the sense of revoking authority to make those decisions, while the insertion of the state governor into the process necessarily provides a veto separate to and functionally superior to the legislature.

Well, I don't really see a distinction. The legislature could revoke the law permitting the governor's veto. The legislature can always change the law. It seems mandating that the governor not be involved is akin to taking a strict nondelegation position, because you're saying the legislature cannot delegate a constitutionally defined grant of power through its lawmaking function. In any event, why do you feel the need to run away from the nondelegation analogy? I would imagine you're a Constitution-in-Exile type, anyway. (That's not intended as a slur.)

Thornton is a case I've been saving for a rainy day to write about, and have promised Patterico a post on the subject of it since he and I disagree, but generally-speaking, I sided with the majority in that case.

That makes absolutely no sense to me. I certainly don't want to intrude on your obligation to Patterico, but I fail to see how you can reconcile your view on Bush v. Gore and the theory described here with the majority opinion in Thornton. My understanding of Thornton is that the majority opinion would be inconsistent with your theory here. I have to confess I don't understand the move you're making.

P. Rich said...

The theme of the book – not exactly a revelation, I suppose – is the growth of the conservative movement and its effect on the Court.

Who knew that long-overdue departure of the court from decades of judicial activism and return toward founding principles was a "conservative movement"? I'd say it's more of a fundamental correction, and the chosen wording reveals much about the views of the author.

Simon said...

Mort,
I wouldn't say I'm run from nondelegation (or the "Constitution in exile" label, although I think that term's become a little theatrical - one hates to sound like a Paulista!). I've just not written on the subject, so haven't had the opportunity to form any concrete position on it, and so I'm reluctant to take an ad hoc position without giving it some thought. It's certainly possible that when I get to writing more systematically about it, tension will become apparent between my view on the issue in Thornton (I didn't mean to embrace the majority opinion, by the way, only the result) and this premise that the Constitution commandeers the state's legislatures (cf. New York v. United States, 488 U.S. (Congress can't commander state legislatures) not merely its legislative process for certain functions -- as indeed it commandeers the state's executive branch for certain functions. And at that time I'll have to figure out which has to give way. Certainly I'll acknowledge that I could be wrong, on one or the other. I'd love to have all the answers, but I'm still working through it myself. ;)

Simon said...

P.Rich - it is not so much the trajectory that is significant, but the consistency of the direction of change. ;)