Abortion, gay rights, disputed presidential elections and wartime powers have appeared on the Supreme Court docket under chief justices Rehnquist and Roberts, but this occasionally enlightening, often injudicious account focuses more on prickly egos.
CNN senior legal analyst and New Yorker staff writer Toobin (Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, 2001, etc.) raises red flags in noting that he conducted confidential interviews “with the justices and more than seventy-five of their law clerks.” All the justices—even press-hostile Clarence Thomas and Washington-allergic David Souter? Since these interviews were “on a not-for-attribution basis,” how can we judge, for example, the claim that Sandra Day O’Connor found the presidency of George W. Bush “arrogant, lawless, incompetent, and extreme”? This vague sourcing is regrettable, because much about the justices’ personalities and deliberations in the last 20 years appears on the record. Moreover, Toobin displays a gift for narrative and abundant insights into how justice—and justices—get made. We learn that in the waning years of the Rehnquist Court, the justices’ isolation meant they influenced each other not in chambers, but in public questions during oral arguments. Over the last two decades, Toobin informs us, even the most conservative justices have grown increasingly tolerant toward gay clerks. In another tidbit, we hear that Mario Cuomo tantalized Bill Clinton with his interest in the vacancy that ultimately went to Ruth Bader Ginsburg. Despite periodic attempts at fairness, Toobin’s views color his characterizations. Liberal Stephen Breyer has “an almost messianic belief in the power of reason,” while more right-leaning justices are dismissed as crusty (the late Byron White) or “famously pugnacious” (Antonin Scalia). Toobin’s surprise that Dubya would appoint justices of his own ideological stripe seems disingenuous. Surely such a well-informed writer is aware of the confirmation reverses suffered by LBJ and Nixon in the 1960s and, at a greater extreme, FDR’s court-packing scheme of 1937.
A smart brief about the high court that suffers from sometimes dubious and occasionally inadmissible historical evidence.