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 deserve.
[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 complexities.”
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 anymore.
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 that 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.