Dead Book Walking
I’m just about finished with Jeffrey Toobin’s “The Nine: Inside the Secret World of the Supreme Court,” which purports (as the title suggests) to be an inside look at what makes the U.S. Supreme Court tick. It’s an entertaining read, but can hardly be considered a serious examination of the Court, given the baseless opinions Toobin offers, and the factual errors even I was able to pick out.
For instance, on page 234, Toobin criticizes Justice John Paul Stevens thusly:
“His intense patriotism prompted the most out-of-character vote of his judicial career, when he sided with the conservatives in the famous flag-burning case of 1989. In his dissent in that case, Stevens said burning the flag was not protected by the First Amendment, because ‘it is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgeling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.’”
Naturally, Toobin thinks that “out-of-character” for the reliably liberal Stevens means “wrong.” Fair enough. But he is actually incorrect in saying that Stevens “sided with the conservatives” in the case. (In fact, since he acknowledges that the Texas v. Johnson case is a “famous” case, he should have figured people could easily look it up.)
In Texas v. Johnson, the majority opinion was written by the liberal Justice Brennan, who was joined by justices Marshall, Blackmun, Scalia, and Kennedy. Dissenting were Chief Justice Rehnquist and justices O’Connor (the hero of Toobin’s book), White, and Stevens. Of the “conservatives” on the Court, Scalia and Rehnquist split (I, personally, happen to agree with Scalia). Even the moderate Republican appointees, O’Connor and Kennedy, split. So in his rush to paint conservatives as willing to suppress free speech rights, Toobin gets his votes exactly wrong.
There are a number of these errors in the book that intend to make the Court’s conservatives look like intellectual lightweights, guided solely by partisanship. Toobin’s treatment of the 2000 Bush v. Gore case is particularly troublesome, as he repeatedly asserts that the Court badly mismanaged the case – without even paying lip service to the arguments for the Court agreeing to take it up. It’s almost as if he forgot the national circus that the repeated vote counting in Florida caused, and he can’t conceive of the Supreme Court’s role in wanting to rectify the situation. And he broadly asserts that the reason the Court took it up was purely partisan – without offering even a shred of evidence. Justices Scalia and Thomas are particularly portrayed as buffoonish, while much more ink is given to the “deep thinking” and “thoughfulness” of Breyer, O’Connor and Souter.
A number of Toobin’s errors have been chronicled in depth on other blogs.Â
That all being said, it is a good read, especially if you want a perspective on the big cases of the past 15 years. But I hate being stuck in a situation where I have about 100 pages of a book left to read, and I’m not exactly sure whether I’m going to be getting factual information the rest of the way home. I feel obligated to finish, since I’ve invested the time to get this far, but I’m skeptical of what I’m being told (from what I understand, I’m about to learn how Samuel Alito is the root of all evil in the U.S. judicial system, so I’m bracing myself.)
SIDE NOTE: Toobin advances the tired and commonly-used idea that conservatives on the court are exercising their own brand of “conservative judicial activism.” I would suggest reading Rick Esenberg’s Wisconsin Interest piece on “activism” versus “restraint” if you inexplicably have found yourself making this argument.
