While Margolick's point of view is laudatory, it is by no mean uncritical. The fact that retired Justice Sandra Day O'Connor was probably one of the folks to whom Toobin talked means he was apparently influenced by her, and by her ideas and still simmering fury, more than he would like to admit.
Why, asks Margolick, didn't Toobin try to contact ex-clerks with a sincere faith in the ability of light to illumine the shades of of this secretive government branch ?
Why no real profiles of Roberts and Alito, two men who are likely to keep the Court firmly tacked right for decades?
Margolick asserts that Toobin, while an engaging and enterprising analyst, still plays by the old rules of Supreme Court coverage-and that those rules need rewriting. I'm still really eager to get the book, for the gossip as well as the homage to judicial history.
September 23, 2007
Meet the Supremes
By DAVID MARGOLICK
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Inside the Secret World of the Supreme Court.
By Jeffrey Toobin.
Illustrated. 369 pp. Doubleday. $27.95.
The farewell ceremony for Chief Justice William Rehnquist at the United States Supreme Court in September 2005 offers the kind of monumental tracking shot authors adore. Neatly and conveniently arrayed that day on the marble steps leading into the building, standing, by tradition, in reverse order of seniority, the justices line up. As some of Rehnquist’s former law clerks (his soon-to-be successor, John Roberts, among them) carry his casket past his former colleagues, Jeffrey Toobin follows the procession, freezing on each of the justices, then introducing them in turn.
But to anyone who watches the court, or watches those who watch it, Toobin’s descriptions afford something else, arguably even more interesting: the chance to ponder which of those justices talked to him for this book, and which did not. And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside” story of any “secret” world to tell in “The Nine: Inside the Secret World of the Supreme Court.”
Of course, the myth is that the justices sit sealed on their Olympian perches, forever mum. In truth, some talk when it suits them, to toot their own horns, unburden their souls, allay their loneliness or justify something they’ve done. They talk very selectively: the more eminent and powerful the reporter or the publication, the more likely such conversations are. One can usually guess who’s gabbing, for among those who follow such things, their penchants are well known. But there are other hints, like a certain kindness of tone in whatever ends up on the air or the printed page. With that in mind, let’s accompany Toobin up those marble steps.
First there’s Stephen Breyer, with what Toobin calls his “gregarious good nature.” Odds are he spoke, a fair amount. Then Ruth Bader Ginsburg, “frail” and “shy” and, Toobin says, with only marginal influence on her colleagues. Maybe, but she’d have said precious little. Clarence Thomas, we learn, had gotten old and fat since his famously bloody confirmation battle. No way. David Souter “detested Washington” and “cared little what others thought of him.” Probably not, but he’s quirky enough to have tossed off a tidbit or two. Then Anthony Kennedy, far more worldly and influential than the “conventional, even boring” burgher he first appeared to be. Almost certainly yes.
Antonin Scalia looked “lost and lonely” that day: absolutely not. Then Sandra Day O’Connor, about to entrust her seat to President George W. Bush, whom she considered “arrogant, lawless, incompetent and extreme.” Her fingerprints — or voice prints — practically leap off the page: how else could Toobin write something so incendiary so confidently? And finally there’s John Paul Stevens, “respected by his colleagues, if not really known to them.” Highly unlikely.
Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.
Try imagining any branch of government — the White House, say, or the State Department — covered solely on the basis of public events and printed releases, with nothing about its inner workings. It’s inconceivable. But that’s essentially how the Supreme Court beat works. Reporters assigned there rarely venture beyond oral arguments, briefs and decisions. Almost never do they stray from their cubicles. Part of this is perfectly sensible: the court makes most of its news through its opinions, and interpreting them, often heaps of them, at once, on tight deadlines, is damnably (and, maybe, deliberately) difficult. Those who do it well are rare, and they have little time to spare.
But it’s not the only reason for sticking to the handouts. Going beyond them, getting into the court’s internal operations and culture, is nearly impossible. And examining the justices critically, grading the quality and propriety and intellectual honesty of their work, is dangerous: you risk losing whatever tiny chance you have that one of them will talk to you in a pinch or throw you an occasional crumb. So almost no one even tries. No other reporters are as passive as Supreme Court reporters. Details about the drama and passion and pettiness of the place — in other words, about the way it does its work, our work — emerge only years after the fact, and only (as with the posthumous papers of Justice Harry Blackmun) when they are made available to the public.
Baghdad bureau chiefs and White House correspondents change every few years for a reason: over time reporters become entrenched or co-opted or burned out. But because covering the court is so difficult, or because everyone likes things as they are, reporters there enjoy an aberrational kind of tenure. Some are there for decades, becoming almost adjuncts of the court, absorbing its elitism, acting as cheerleaders or apologists or scolds, feeding the cult of personality that surrounds its members. Others become quasi justices themselves, handing down clever opinions on opinions rather than ever picking up a phone and asking a few questions.
The cartel is not only closed, but, as television news has withered, it is also shrinking. And scholars aren’t much help. Many top law professors once clerked on the court; cherishing their relations with the justices, along with the power to pull strings from Cambridge or New Haven or Palo Alto to land similar positions for their students, few dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives.
That is why, every decade or so, an enterprising and intelligent outsider like Toobin can come along and shine a much-needed spotlight on the place. He’s pedigreed (Harvard Law School), well connected (The New Yorker, CNN) and visible, the kind of person immured justices like to say they know. Most important, he’s not in one of those cubicles. He has an independence and perspective the lifers don’t. He’s not in awe of the place, not prone to covering it in hushed tones or to writing endlessly about red velvet curtains or black robes.
So, not surprisingly, “The Nine” is engaging, erudite, candid and accessible, often hard to put down. Toobin is a natural storyteller, and the stories he tells — how a coalition of centrist justices saved Roe v. Wade; why Rehnquist, despite having loathed the rights granted to criminal suspects by Miranda v. Arizona, eventually declined to overturn the decision; how right-wing firebrands deep-sixed the Supreme Court candidacies of Alberto Gonzales and Harriet Miers — are gripping. But its greatest surprise is that there are few great surprises. Toobin writes about the court more fluidly and fluently than anyone, but his buddies on the bench didn’t tell him much we don’t already know.
ike “Supreme Conflict,” Jan Crawford Greenburg’s recent examination of the same subject, Toobin seeks to plumb the court’s deepest mystery: why a tribunal so stuffed with Republicans (there have been only two Democratic nominees in the last 40 years) hasn’t shifted more radically rightward. He offers many explanations. Souter, appointed by the first President Bush, was to conservatives a colossal miscalculation. Rehnquist got tired, then sick. Breyer lobbied effectively from the left, or what’s left of the left, while Scalia’s extremism and blustery condescension miffed those in the middle. Kennedy became enraptured by foreign travel and more liberal foreign jurisprudence. Gay clerks came out of the closet.
O’Connor was clearly Toobin’s most important source. She’s also — readers can decide if it’s coincidental — his hero: the justice, he argues, who through her pragmatic, seat-of-the-pants jurisprudence single-handedly kept the court close to the American mainstream, particularly on matters like reproductive freedom and affirmative action. The Rehnquist court was really the O’Connor court, Toobin writes early on. But he’s only warming up: before long, the first female justice has shoved aside Eleanor Roosevelt, Margaret Sanger, Harriet Beecher Stowe and Susan B. Anthony to become “the most important woman in American history.” Give him another 60 pages, and she’s surpassed most of the men as well.
This is despite what Toobin himself concedes was her ignoble role in Bush v. Gore, the case that decided the 2000 presidential election. Beat reporters and academics initially denounced the court’s involvement in that case, its hastiness to enter the political thicket and the half-baked and strained decision that resulted; but invested in the image of the court as a principled and apolitical institution (and perhaps afraid of offending anyone), they quickly and predictably backed off. Yet even after writing an entire book about that case six years ago, Toobin remains white-hot about it, calling it “one of the lowest moments in the court’s history,” one that revealed the worst of just about everyone involved.
Here he does name names, as no beat reporter has ever done or would ever do, at least nibbling some of the hands that fed him. Only Stevens and Souter are spared. To Toobin’s credit, he does not exempt O’Connor.
A lifelong Republican — in her memos to Rehnquist, she routinely referred to her party as “we” and “us” — O’Connor played tennis with Barbara Bush, watched approvingly while George W. Bush rose as a “compassionate conservative,” looked “stricken” to fellow partygoers on election night 2000 when Al Gore appeared to have won. She determined early on in the litigation to stop the Florida recount, and in the five-to-four decision that followed, her vote was decisive. But her reasoning, as Toobin notes, was more visceral than legal — she hated untidiness, blamed Florida voters for being too stupid to follow instructions and thought Americans wanted the matter settled. She was wrong on both the facts and the law. It was an egregious performance, one that historians will skewer. Or maybe not, given who usually writes these histories.
Amid a torrent of criticism, O’Connor clearly held off-the-record conversations with reporters, trying to justify what she had done. Toobin does not mention this, nor the more general issue of the justices’ surreptitious ties to the press. Perhaps it’s too much to expect. Or perhaps he was just too busy taking down all of O’Connor’s ire, because she spends an awful lot of “The Nine” either annoyed, affronted or downright appalled by the events of the past few years.
She was appalled, for instance, by former Attorney General John Ashcroft, whom she considered extreme, polarizing, moralistic and — to use her favorite word — “unattractive.” She was appalled by how the Bush administration pandered to the religious right in the Terri Schiavo case. She was appalled by the nomination of Harriet Miers. And she’s been appalled, too, by Bush’s stances on affirmative action, the war on terror and the war in Iraq. And how did she feel when Bush brushed off the report of the Iraq Study Group, to which she belonged? She was appalled. And she was really, really appalled that the lower-court judge whose dissent in one crucial case she deemed “repugnant” — he’d have upheld a Pennsylvania law requiring wives to notify husbands before getting abortions — was the very man Bush picked to replace her: Samuel Alito.
A person is welcome to her opinions, but given O’Connor’s crucial role in putting Bush in office, such constant off-the-record carping is really a bit much. Toobin, naturally, doesn’t challenge her on any of it; when justices talk — and especially when they vent — you just let your tape recorder roll and hope the red light is flickering. But all this spinning makes one appreciate Thomas and Scalia; whatever one thinks of them or their jurisprudence, they speak their pieces in public — for attribution.
The book includes beautifully written essays on each of the justices, woven artfully into the narrative. The one on Thomas manages to be both sympathetic and devastating. There’s the reclusive Souter, who’d never heard of Diet Coke or of the other “Supremes” (the ones with Diana Ross), and the grandiloquent Kennedy, who toils most over those passages in his opinions he thinks The New York Times will pick up. The book is filled with pithy phrases, crystalline distillations and fine tidbits: the impertinent notes Breyer and Thomas pass one another during oral arguments; O’Connor’s efforts to marry off the bachelor Souter; Souter weeping — and contemplating resignation — after the Bush v. Gore decision.
But there are significant gaps. Toobin calls relations between the justices “cordial” but, frustratingly, offers only a few elaborations. How Ginsburg and O’Connor, the court’s first two women, got along surely warrants more than a sentence or two. Why were O’Connor and Stevens the only colleagues the dying Rehnquist allowed into his home? And who most regularly persuades whom (if, on such a factionalized court, there’s any persuasion going on at all)? Can it be true, as Greenburg has written, that at least initially it was not Scalia who influenced Thomas, but the other way around?+
Much of Toobin’s book is based on oral arguments, briefs and opinions — nothing especially “secret” or “inside” about that. Sometimes, he actually strays quite far from the court. And he devotes lots of space to musty, antiquarian topics: Warren Burger’s vanity, the doomed nomination of Robert Bork, Bill Clinton’s attempt to woo Mario Cuomo into a court appointment. Going through “The Nine” is a bit like reading one of those Roger Angell essays on a recent World Series: the writing is exquisite, but the game’s been over awhile. Despite the importance of Roberts and Alito, Toobin takes far too long to reach them, then tells us far too little about what kind of men, and justices, and colleagues, they are turning out to be. He had a year to study them and might have told us much the beat reporters couldn’t or wouldn’t or, in any case, haven’t. Describing the body language on the court’s last day this past June (Souter seething, Breyer rolling his eyes, Alito staring at Breyer, Roberts’s jaw muscles twitching) doesn’t really do the trick.
Considering the secrecy shrouding the place, just about Toobin’s only remaining reportorial option was to try what Bob Woodward and Scott Armstrong did in “The Brethren” a generation ago: canvass former law clerks, three or four of whom pass through each chamber every year. They are, as Toobin writes, not nearly as important as they think they are; after all, they’re not privy to their bosses’ deliberations. And they can be very full of themselves, priggish and protective, even proprietary, about the court. Just ask Edward Lazarus, who in 1998 published an account of his year clerking for Justice Blackmun; for his breach of omertà, his fellow clerks shunned him at Blackmun’s funeral.
But there are many, many clerks; they heard — and still hear — a lot; and for all the sycophants and careerists, kingmakers and aspiring federal judges among them, some are surprisingly independent and outspoken, believing that excessive deference to even the most necessarily private branch of government ill serves our democracy. Toobin says he spoke to 75 of them, but anyone writing a book like this simply has to telephone them all, even if 9 of every 10 hang up in a huff. I wish Toobin had done this, because it would have made his book even better. When it comes to covering the United States Supreme Court as a living, breathing, human institution rather than as a collection of icons, “The Nine” is state of the art. But it’s an art in need of a renaissance.
David Margolick is a contributing editor at Vanity Fair and the author of “Beyond Glory: Joe Louis vs. Max Schmeling, and a World on the Brink.” He once covered legal affairs for The Times.