BookEnds

As Chris pointed out in his first post about “The Nine” by Jeffrey Toobin, the battle over the Supreme Court has been framed by a for the last three decades by an ideological debate between those who believe the framer’s intentions in drafting the Constitution should be strictly interpreted and those who believe the Constitution is a living document meant to adapt to changing times. In specific response to what many conservatives believed was the overreaching of the Warren and Burger courts, they have made efforts to get new justices who believe precedents set then should be overturned. Decisions in those years established the right to an attorney at trial, the right to privacy, created the Miranda warning, overturned racial segregation, and, in a controversy that still rages today, made abortion legal in Roe v. Wade.

The precedents established are not easily undone. As Toobin points out, even Chief Justice William Rehnquist did not overturn the Miranda ruling when given the opportunity because people had come to rely on it. The litany of rights read by police officers before a suspect is interrogated is so pervasive its on crime and justice television shows, and many citizens can recite it verbatim. A respect for stare decisis also explains why David Souter was so different than predicted to the president who nominated him, George H. W. Bush.

Now, though, with Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas solidly in the majority, and the moderate conservative Justice Anthony Kennedy taking the place as the court’s swing vote, the court has come full circle. Conservatives finally have the court they would wish for, a court that seems willing to overturn precedent from those years. But it comes as the conservative revolution in politics, which reached its height with the two terms of President Ronald Reagan, comes to a close. President Barack Obama often is compared to Reagan; he’s the same style of communicator and he seems to have ushered in a close to the Reagan revolution with a new kind of coalition.

It’s unlikely, though, that Obama will have a chance to change the court. Those most likely to leave are its most liberal members, and the youngest are those nominated by President George W. Bush. So its Obamaism that has to continue if Obama wants to leave a mark on jurisprudence, just as it was Nixon’s and Reagan’s predecessors who made the court more conservative.

What does this mean for the country? It may be easy to argue that the Warren and Burger courts brought change before many people were ready, particularly in Brown v. Board of Education and Roe v. Wade. Those decisions ripped parts of the country in two. Now we have a court that may be more conservative than the populace, that may be more reluctant for changes like gay marriage than the voting public. But that’s a good or bad thing depends on your view of the role of the judiciary.

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 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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As an attorney who has practiced during the Rehnquist and now the Roberts era – where 5 to 4 decisions are a common occurrence — I hold my breath each time an important decision comes down from the Supreme Court because of the enormous impact these decisions have on our lives. Two examples close to home are the Kelo case (where the Court decided that the City of New London could use eminent domain to take a woman’s home against her will and transfer the property to a private developer for a non-public use) and the recent Ricci case that we have all been hearing about (where the Court required the City of New Haven to promote the highest ranking firefighters on a promotional examination that the City later determined had an illegal discriminatory impact on minority firefighters). We know so little about how the Court really works and how the relationships among the justices shape the opinions that are ultimately adopted. So I look forward to reading The Nine to find out more about the people that shape our lives, for an inside look at the secret world that is the Supreme Court, and to share ideas with all of you.

*My views expressed on this blog are completely my own and do not represent those of Silver Golub & Teitell.

** See Marilyn’s bio in the “Meet the Authors” section on the homepage.

A few months ago I attended a talk by Tina Brown, part of a magazine journalism lecture series at Columbia University, where she mostly talked about her newest venture, The Daily Beast.

Brown is most famous for her stints as editor at Vanity Fair and the New Yorker, where she helped launch the careers of many writers who are today household names (OK, in east-coast-media-elite households anyway).

Jeffrey Toobin is one of those writers.

After working as an assistant U.S. attorney in Brooklyn, Toobin resumed a writing career he began in college and took an assignment covering O.J. Simpson’s criminal trial. According to Brown, after initially filing straightforward accounts of the legal proceedings, Toobin came into his own, providing the rich textural detail the New Yorker is famous for, as well as the legal insight of a trial attorney.

These days, amid all the windbags on cable television news (the mere sight of Nancy Grace sends shivers up my spine), Toobin stands out and his New Yorker pieces are a pleasure to read, even when he’s not writing about the law.

CASE IN POINT: Toobin’s profile of Barney Frank.

–CP

What’s most interesting to me about “The Nine” — and the primary reason I’ve wanted to read it — is that it reveals the amazing and eccentric characters our Supreme Court is made of. Perhaps none more so that David Souter, the retiring justice whose seat Judge Sonia Sotomayor hopes to fill once he retreats forever to the farmhouse in New Hampshire where his parents and grandparents lived.

But mostly, I’m a little obsessed with Ruth Bader Ginsburg, the trailblazer who argued sex discrimination cases in front of the Supreme Court before becoming only the second woman to sit on it. Not only did she attend both Harvard Law School (she later transferred to Columbia), but she also took notes in classes for her husband while he suffered from cancer and took care of her baby daughter.

So thanks to staff photographer Chris Preovolos and Marilyn Ramos, an attorney with Silver, Golub & Teitell in Stamford, for reading the book with me. Other staff writers from the Advocate have promised to jump in as well. It should be an interesting discussion.