A seat has opened on the Supreme Court, and as I write all sorts of bluster is flying about on the issue of whether President Obama will be able to fill it and with whom. A future author will no doubt find the meat for a good book about a struggle that promises to be nasty, brutish, and anything but short. For the moment, it’s worth spending some time with good books about the Court and the complex and often arcane politics around it—politics that are often highly personal.
Jeffrey Toobin’s The Nine comes to mind, a book that on the whole is deeper but perhaps less fervently researched than Bob Woodward’s The Brethren. A more recent book, one that might give whiplash to readers unused to postmodern irony, is Irin Carmon and Shana Knizhnik’s Notorious RBG, which, though about Clinton appointee Ruth Bader Ginsburg, takes in the sweep of the court, with its Reagan-era holdovers and justices seated in more recent memory.
And then there are the books by and about other practitioners. One of the best of the recent crop is Stephen Breyer’s The Court and the World, which owes some of its origins to a vigorous debate he and the departed Antonin Scalia had 10 years earlier. Linda Hirshman’s Sisters in Law looks at the collegial and highly effective relationship between the liberal Ginsburg and the conservative Sandra Day O’Connor, while Melvin Urofsky’s Dissent and the Supreme Court examines how minority opinions have shaped a nuanced understanding of the Constitution. Hirshman, by the way, has just penned an op-ed piece explaining how a deadlocked court favors liberals, and showing along the way that the governing law of the land is really the law of unintended consequences.
As for Justice Scalia, he had no shortage of opinion, minority or otherwise. His writings outside Court documents, however, were few, among them the edited volume A Matter of Interpretation: The Federal Courts and Law. To date the best book about him remains Joan Biskupic’s 2009 study American Original, whose title plays on Scalia’s beloved doctrine of originalism, which held against the idea that the Constitution is a living document.
Who owns stories? Anglo-American law holds that copyright extends to the tangible expression of an idea, meaning set down on paper or otherwise recorded. More traditional bodies of law hold that if I tell you a story over a fire or a meal, that story is mine, regardless of whether it’s written down or not.
Therein lies a brewing controversy involving a much- and well-published anthropologist named Peter Nabokov and the people of Acoma Pueblo, in New Mexico. The Santa Fe New Mexican reports that Nabokov’s two most recent books, one of them The Origin Myth of Acoma Pueblo and the other How the World Moves: The Odyssey of an American Indian Family, incorporate material belonging to the Acoma people that is not suitable for circulation outside the pueblo. So the Acoma believe, at any rate. The independent Santa Fe Reporter gives a good backgrounder on the sharp division that ensued, played out at bookstore readings, in public hearings, and now on the pages of newspapers and social media.
Recalling a controversy of a quarter-century past concerning Ramón Gutiérrez’s book When Jesus Came, the Corn Mothers Went Away, which again roused Acoma objections, the current debate over whether an outsider—an anthropologist, a novelist, a journalist—can give tangible form to words that are floating on air, even if those words are attributed to a source. Any legal decision that emerges, if any, will almost certainly not be wholly satisfying to either side of the argument.
Gregory McNamee is a contributing editor.
The photo above right is drawings of Kachina dolls from an 1894 anthropology book.