BookEnds

Monica, I was also surprised to learn that the Supreme Court does not always function as we think it would or should. For example, I was very surprised to read that at no time after hearing the attorneys’ arguments do the justices meet all together in conference to discuss the legal issues. I would have expected that on such important matters, nine minds are better than one, and that a conference to discuss the legal issues (including prior decisions of the Court on the same issues) could only lead to more informed decision-making.

Instead the book describes a Court where ideology rules, and where the factions are established even before the cases are argued. Which is why Mr. Toobin concludes in the Epilogue to this book that it is not “intelligence, competence, or ethics” that differentiates the justices, but their ideologies ‘that will shape the Court and thus the nation.”

While Judge Sonia Sotomayor was castigated by Republicans for suggesting that her unique perspective on the world might influence how she votes on these issues, the Republican administration appointed Justices Roberts and Alito – both of whom have known entrenched conservative ideologies.

Mr. Toobin suggests that if we — the men and women on the street — want any say in decisions that impact our lives, we need to look not at who is appointed for a judgeship, but at which politicians we put into office who do the nominating. If we elect a conservative president, we will have conservative judicial appointees (not only for the Supreme Court but for all the other federal courts). The same outcome applies when we elect liberal or moderate presidents.

We now live in an age when all federal judges are screened not only for their integrity and intelligence, but for how they will vote on the issues. Sad but true.

I have immensely enjoyed reading and blogging about “The Nine” (a surprisingly easy read). I encourage all who have not read it and who are curious about how our laws are shaped to do so.

One of the most surprising discoveries for readers of Toobin’s book is that Supreme Court justices are subject to the vagaries of office politics and annoyances. Apparently, former Chief Justice Warren Burger was disorganized and, frankly, not always so good at being a chief justice.

Discussions meandered aimlessly and ended inconclusively. Justices sometimes thought that Burger would switch his vote to keep control of opinions or even try to assign cases where he was not in the majority. . .

In the Burger years, opinions came late or not at all, forcing cases to be “put over,” or reargued, in subsequent years.

That the justices could be frustrated by a bad manager is a little sad. I guess I always hoped they were free to ponder the great legal questions put before them unencumbered by the kinds of cubicle frustrations with which we lesser mortals deal. But it wasn’t just Burger, after whom Rehnquist whipped the court into shape, who kept daily operations from ascending to a higher plane. Regular old political disagreements, the kind that can make the workplace tense, really came to the fore during Bush v. Gore.

Clerks were screaming at each other, and accusing the other side of trying to steal the election. Most comically, there was a bit of an overreaction when the normal business of the court brushed up against the case.

At about nine in the evening on Tuesday, as the last of the opinions were being proofread before being sent to the printer in the basement, a court of appeals law clerk named Anil Kalhan showed up in advance of an interview with O’Connor that was scheduled for the next day. Kalhan thought he would visit friends who were already clerking. But his arrival outraged several other law clerks, who thought that an outsider like Kalhan could not be trusted to keep the result in Bush v. Gore secret. Some suggested, in apparent seriousness, that Kalhan be “detained,” so he could neither leave nor call outside the building.

This is not what I imagined.

I checked out the newly opened Barnes and Noble on 86th and Lexington in New York this past weekend, gift card in hand. The store is so huge, I hardly knew what to look at first. I picked through the fiction, quirky non-fiction bestsellers and cooking section on the first level, giving the second basement level not much more than a glance. A friend tells me they have a THIRD level with an event space, which I’m glad I didn’t see. (One hour of mega store book browsing is enough, thanks!) Also, the place doesn’t have cell phone reception, so my husband and I kept losing one another in the cavernous space.

That aside, I picked up some good reads:

“On Beauty” by Zadie Smith

“Absurdistan” by Gary Shteyngart

“The Kite Runner” by Khaled Hosseini

“The Hunger: A Story of Food, Desire, and Ambition” by John Delucie (for my husband)

I know, I know. I could have checked these off any bestseller list. To be honest, my picks didn’t stray from the “notable fiction” table. But I’ve been on a non-fiction binge for a few years, so I guess it’s time to catch up. I’ve read White Teeth by Zadie Smith and enjoyed it (up until the last few pages) so I’ll be happy to pick up Smith’s latest. But before I crack any of these, I’ll be wrapping up Truman Capote’s In Cold Blood. Stay tuned for more on that soon.

A couple film-related post scripts:

It seems there is a recent German film also under the title Absurdistan. Anyone know if this is based on the book?

It didn’t occur to me until writing this post that Delucie’s memoir borrows its name, The Hunger, from the Whitley Strieber novel and 1980s cult vampire film with David Bowie and Catherine Deneuve. Is he trying to draw some blood-sucking allusions about the service industry lifestyle, perhaps?

When I interviewed Pulitzer Prize-winning author Frank McCourt back on Jan. 20, in anticipation of his talk at Purchase (N.Y.) College the following week, he sounded positively vibrant. His incisive remarks on the American education system, memoir writing and the inauguration of President Barack Obama bespoke a man who was still very much passionate about his life and surroundings. My friend, a university instructor and resident of Roxbury — McCourt lived there part-time — mentioned on Facebook that he saw the author six months ago at the supermarket, “and he looked great.”

So I was shocked and saddened when I read in the New York Times yesterday that McCourt had passed away in his Manhattan apartment. According to Malachy McCourt, his younger brother and fellow author, the 78-year-old Brooklyn native had been suffering from meningitis and had recently been treated for metastatic melanoma. He is survived by his wife, Ellen Frey and daughter, Margaret McCourt.

Though I was surprised by his death, I was even more astounded to learn during our interview that McCourt, now considered among the most brilliant writers of the 20th century, was once paralyzed by self-doubt.  It was the late ’60s when McCourt graduated from Brooklyn College and he decided to play it safe as he searched for a viable career.

“I didn’t have enough self confidence to say I was a writer,” he said. “I dreaded poverty. I had to find secure employment with a weekly wage. I didn’t see myself working for a corporation.”

So, he turned to teaching.

As a student reared in Ireland’s strict Catholic schools, he had rejected the system’s iron-handed pedagogy and dropped out when he was 13. He took that defiant approach to McKee Technical High School in Staten Island — his first teaching stint — where he engaged his pupils on a personal level. He shared stories about his childhood in the slums of Limerick, Ireland and moving to America and encouraged his students to share their stories as well.

His students may have been wary of those methods at first — McCourt observed they were more concerned with good grades than with actual learning — but eventually, they grew to enjoy his class and of course, his poignant and often hilarious anecdotes.

“And the more I talked about my own life, the more I found it interesting as well,” McCourt recalled. “That’s what made me decide to write.”

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I think Chris’ summary of the main issue presented in this book is very insightful.  The Supreme Court has become the battlefield for the ideological battles being fought between factions — the Democrats and Republicans, the liberals and the conservatives, those who want religion in public places and those who think religion has no place there, those who think government should regulate or eliminate abortion and those who think differently.  I could go on and on.

For this reason confirmation hearings are no longer about whether someone has the qualifications to serve on the Court, but rather an attempt to discern how he or she will vote on particular divisive issues, or at a minimum to obtain the nominee’s assurance that he or she will not engage in “activism” on the Court.  We have just seen this played out during the Sotomayor hearings.

Conservatives for years have complained about the more liberal justices engaging in “judicial activism” – contending that the Court is legislating new law instead of merely interpreting laws enacted by legislators.  But it is obvious to anyone who has ever read through state and federal statutes that these laws cannot possibly cover every situation.  This is equally true of the Constitution.  Therefore “the law” is changing constantly because courts have no choice but to decide which of two opposing interpretations in a given case is the right interpretation.  Nothing new there.

It is in the realm of constitutional interpretation that the conservative factions have been most critical.  As Mr. Toobin points out, “judicial activism” has become a rallying cry for conservative factions in their attempt to gain control of the Supreme Court.

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The Sandra Day O'Connor court

Buried within the ideological debate that Toobin sets up, as Chris points out, in the first 100 pages or so of “The Nine,” are little tidbits that hint at the way confirmation hearings have changed. I imagine it was frustrating for anyone of any political stripe to pay too much attention to the confirmation hearings for Judge Sonia Sotomayor: it seemed senators just gave political speeches in the form of 10-minute questions and Sotomayor tried her best to pretend she has no opinions.

I was surprised to learn recently that the whole bit of theater — that the advise and consent role expanded to include public questioning of a nominee — was relatively new. An interesting point hinted at in the book about the hearings of Robert Bork is that the thorough rejection we now use his last name to describe was really something he was partly responsible for because he let his views be so clearly known. He actually sort of invented his views; he was one of the founding group of conservative thinkers known as the Federalists. The idea that Bork borked himself by being too willing to dig in against the senators is one I’ve heard before.

. . . Robert Bork’s nomination had been defeated because he expounded broadly about his well-established, and very conservative, judicial philosophy. Consequently, the conventional wisdom had become that nominees should avoid taking substantive stands on most legal issues.

Then, by Clarence Thomas, the conventional wisdom was ingrained.

In awkward, wooden answers, he gave the impression that he had no views, not simply that he was declining to express them. In one infamous exchange, he told Senator Patrick Leahy that he had never even discussed Roe V. Wade.

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Frank McCourt, the author of “Angela’s Ashes,” has died at the age of 78.

In the first chapters of “The Nine,” Jeffrey Toobin’s look into the history, personalities and often opaque workings of our nation’s highest court, the author sets up the back story for what has become one of the most protracted political and ideological debates in American jurisprudence; that of so-called judicial activism versus strict constructionism.

Toobin argues the modern conservative backlash in American law was a response to the Warren Court of the 1950s and 60s. The popular three-term Governor of California was nominated by Eisenhower but the court under his leadership grew more liberal than the Republican president could have imagined.

The Warren Court gave us Brown v. Board of Education, Miranda v. Arizona and New York Times v. Sullivan (which set a high standard for actual malice in libel and defamation cases). Many of the cases deliberated by this court set what Toobin called “unassailable precedents,” controversial at the time but that would be unthinkable to reverse now.

During these years Toobin says “the left leaning decisions of the Warren and Burger Courts had become a reigning orthodoxy, and support among faculty for such causes as affirmative action and abortion rights was overwhelming.”

This liberal culture in American law schools and the minority of conservative minded students and young lawyers and faculty sets the context for the birth of the Federalist Society, founded – in part – with the help of current Supreme Court justice Antonin Scalia and famously failed nominee Robert Bork. (Subsequent membership also included current justices Samuel Alito and John Roberts).

The Federalist society – by its own account – seeks reform in the American judicial system in the form of a return to the an “originalist interpretation” of the United States Constitution. Justice Scalia argues the constitution is not the “living document” so many of us were taught in high school civics, but that it should be interpreted in a manner consistent with how the framers intended. In this politically charged environment, some liberal critics counter this itself could also be considered judicial activism.

We get a fresh dose of this debate with each Supreme Court confirmation hearing, most recently in the past week with Judge Sonia Sotomayor.

Toobin is setting us up here for his highly researched account of the Rehnquist Court but the themes here are also the subtext for many of today’s ideological legal conflicts. The skirmishes over state and federal court rulings, constitutional interpretations and judicial nominations that we see played out daily in the media are but footnotes in this war of legal ideas.