Saturday, March 29, 2014

Review of "The Nine", by Jeffrey Toobin

The author is one of the most respected commentators on the Supreme Court, and he has written an extremely readable and informative book.

Toobin undertakes to discuss four eras in the Supreme Court since 1980. First is the one initiated by the Reagan years; then there is the disastrous Bush v. Gore case in 2000, which resulted in the Court losing much of its prestige due to its blatantly political decision. Third is the four-year period after Bush vs. Gore, and finally the three years after that, when George W. Bush got to appoint two new justices.

Toobin discusses individual cases, but only as a way of illustrating the trends occurring in each of the four eras he discusses. Similarly, he discusses the personalities of the individual justices, and the nomination and confirmation process for justices during this time period; but all this is for the purpose of illuminating how the court works and trying to explain the reasons for the trends he sees in the evolution of the court over the years. All the while the prose flows along smoothly, and Toobin never gets lost in the weeds.

It is clear to me that Toobin has a lot of admiration for the centrist justices, like O/Connor, Breyer, and Kennedy, and he praises the way these justices work hard at finding a sensible middle ground on which to decide cases. In a case involving the display of religious figures on public grounds, Justice Breyer came up with a middle-of-the-road decision, about which Toobin states: "As a political compromise, if not constitutional jurisprudence, it made total sense."

One comes away from the accounts of many cases like this with the feeling that Toobin feels the Supreme Court is more of a political institution than a legal institution. In other words, reaching a common sense conclusion is more important than coming up with sound legal reasoning to support that conclusion. And in many cases the Court's reasoning is indeed tortured and even incomprehensible. Yet, the Court somehow retains our respect, even though at times it has not been worthy of it.

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