Wednesday, March 1, 2017

"The Nine", by Jeffrey Toobin

Like Greenburg's book "Supreme Conflict", Toobin's book "The Nine: Inside the Secret World of the Supreme Court", also came out in 2007, and many of the same anecdotes can be found in both, sometimes word-for-word the same. However, Toobin's book concentrates less on the nomination and confirmation process, and more on the actual functioning of the court. Also, it covers a smaller time period, ending at the same time but only starting in 1991 with the appointment by Bush, Sr. of Souter and Thomas. Toobin uses his top-notch legal analysis skills to craft an extremely informative account of this 1991-2007 time period.

This period roughly corresponds to what is called "The Rehnquist Court", which actually ran from Rehnquist's elevation to Chief Justice in 1986 to his death in 2005. The last 11 years of the Rehnquist Court represent the longest tenure of an unchanging nine-member court in U.S. history, so the evolution of the court during this time period reflects the evolution of the justices themselves, rather than any change in personnel.

The 1992 case of Planned Parenthood v. Casey presented the issue of the legality of a number of restrictions on abortion which Pennsylvania had enacted. Chief Justice Rehnquist tried to keep it off the court's docket so as not to interfere with the 1992 election (if Roe v. Wade were overturned, he feared a backlash against Republicans at the polls). However, Justice Stevens threatened to write a dissenting opinion on Rehnquist's decision to "relist" the case, something which had never been done before, and in the face of that threat Rehnquist backed down. The case was then heard on April 22nd, the final day to have the case decided before election day.

The litigants presented the question as an either/or proposition--either the court throws out the Pa. law, or the court overrules Roe v. Wade. However, O'Connor, Kennedy and Souter wanted to find a middle ground between these two extremes. At the court's conference, four justices were for overruling Roe--Rehnquist, White, Scalia and Thomas.  Stevens and Blackmun wanted to strike down the Pa. restrictions. The other three wanted to uphold most of the restrictions, so there was a tenuous seven-justice majority. Rehnquist assigned the opinion to himself, intending to write an opinion that allowed states a free hand in regulating abortion; i.e., he would overturn Roe, but not explicitly say so.

The three moderates started communicating with each other and ended up writing their own opinion. In particular, Toobin says that O'Connor "was appalled by the provision of the Pennsylvania law that required married woman who were seeking abortions to inform their husbands....She saw this provision as paternalism at best and sexism at worst". In the end, the moderate view held the balance of power, and O'Connor's "undue burden" test became the law of the land; i.e., state regulations which imposed an "undue burden" on a woman's right to abort a nonviable fetus were not permissible.

O'Connor's view was based on a strong concern for women's rights. She wrote that "Women do not lose their constitutionally protected liberty when they marry". She observed that women "may have good reasons for not wishing to inform their husbands of their decision to obtain an abortion...We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases."

The next significant step in the story is the appointment of two new justices by President Clinton, who had of course prevailed in the 1992 election, and Justices Ginsburg and Breyer joined the court. The first case Toobin discusses under this new court is one which arose under the Gun-Free School Zones Act of 1990, which prohibited the possession of a gun at or near a school. The problem with this law was that it was a federal law, passed under the commerce clause. The court used the opportunity to strike down a law based on the commerce clause, the first time since 1935 that the court had done so. The three conservatives were joined by O'Connor and Kennedy, while Breyer wrote a vigorous dissent in this 5-4 decision.

Next there follows a number of cases involving the first amendment. Attorney Jay Sekulow took on these cases with the support of a conservative organization, and he had great success in presenting them as free speech issues instead of freedom of religion issues. For example, the case of a Jews for Jesus group which was banned from distributing literature at an airport came before the court, and resulted in a 9-0 decision for the religious group.

Sekulow's winning streak finally ran out in a case involving prayer at a high school football game. The court ruled 6-3 against the high school, with the three conservatives of course dissenting. Sekulow's argument that the prayers were merely "private speech" was roundly rejected. The principle put forth by the majority was that "the government had to allow genuinely private religious activity, but at the same time could not sponsor or endorse such rituals".

The next case of significance was the decision in the Paula ones case against President Clinton. Clinton wanted to postpone the lawsuit till after his presidency, but the court ruled unanimously against him. Toobin writes that "Steven's opinion for the court in Clinton v. Jones reflected the commendable principle that no man should be above the law, but it showed a stunning naivete about contemporary law and politics." (emphasis added) This bad decision led directly to the impeachment proceeding against President Clinton, which was a horrible stain on the body politic.

But the real black eye for the court came in the Bush v. Gore case on the 2000 election. This was such a horrendous decision that it is doubtful whether the court will ever recover the esteem it once had. It revealed the court's members as nothing but partisan hacks. Toobin says the problem with Kennedy's majority opinion was that "no court, much less the Supreme Court, had ever before imposed any kind of constitutional rule of uniformity in the counting of ballots. Most states, including Florida, used different voting technologies in a single election." Toobin goes on to point out that "A recount would have been more accurate than the certified total. The court's opinion preserved and endorsed a less fair, and less accurate, count of the votes."

Toobin writes that "The tragedy of the court's performance in the election of 2000 was not that it led to Bush's victory but the inept and unsavory manner with which the justices exercised their power....Alone among the justices, Stevens was consistent and logical and constitutionally sound in his thinking." The backlash over the court's pitiful decision in Bush v. Gore caused great consternation for the centrist judges. Toobin says that "Souter was shattered", and considered quitting the court.

Toobin writes that in the years between Bush v. Gore and his death, Rehnquist became a "tired, old man who had grown cynical about the work of the court". Toobin says Rehnquist stopped writing opinions because "he didn't think the opinions mattered very much". He says that "Since Bush v. Gore, the chief had failed to command a majority in virtually all the important issues before the court."

A major development during the early 2000s was the influence on the court of foreign law. Justice Kennedy had taken to teaching in the summer at the University of Salzburg, in Austria. There he became exposed to his colleagues from other countries all around the world, and it opened his eyes to oddities in how the U.S. Supreme Court viewed certain issues, such as homosexuality and the death penalty. Similarly, Justice Breyer, who is married to an English woman, also took a worldwide perspective on issues. This contributed to liberalizing the views of these two justices, and consequently the court as a whole.

For example, in the 2003 case of Lawrence v. Texas, the court, by a 6-3 vote, struck down laws against gay sex, overturning a precedent from only 17 years earlier. In his decision, Kennedy referred to a European Court of Human Rights decision which struck down laws against gay sex under the European Convention of Human Rights. Scalia replied with a typically caustic dissent.

But Toobin writes that it was actually Breyer who was "the first justice in modern times to invoke foreign law as an aid to interpreting the American constitution". Dissenting in a 1999 death penalty case, Breyer quoted legal opinions from Jamaica, India, Zimbabwe, and the European Court of Human Rights, prompting Justice Thomas to declare that the Supreme Court should never "impose foreign moods, fads, or fashions upon Americans".

In the early 2000s, the court made a series of decisions limiting the use of the death penalty, with heavy reliance on foreign law in determining what punishment was "unusual" under the Eighth Amendment. One case involved execution of the mentally retarded, and another execution of offenders who were minors at the time of their offense.

Another development, which contributed to Justice O'Connor's growing disillusionment with her Republican party, was the threat to civil liberties in the wake of the 9/11 terrorist attacks. In two cases, Rasul and Hamdi, the court ruled 6-3 that the Guantanamo detainees had the right to challenge their incarceration in a U.S. district court, dealing the Bush administration a huge setback.

So what we have, then, is a situation in which the court's moderates have prevailed over the two extremes. This seems odd to us only because the country itself seems to be so polarized between the two extremes. In reality, I think a lot of this seeming polarization is a result of the middle being relatively silent compared to the energized partisans on either extreme. On the Supreme Court, however, the middle speaks loud and clear, and usually carries the day.

Since the time period covered in the Greenburg and Toobin books, George W. Bush has appointed two conservative justices, and Barack Obama has countered with two liberal justices. As might be expected, the dominance of the middle continues unabated.When I did a detailed analysis of ten significant cases decided in 2013, I found that there were three reliable liberals--the three women; three reliable conservatives--Scalia, Alito, and Thomas; and three in the middle--Breyer, who tended to vote with the liberals, Roberts, who tended to vote with the conservatives, and then Kennedy, who was pretty much right in the middle. If Gorsuch is confirmed to replace Scalia, the balance of power will surely remain as it was before Scalia's death. The danger for liberals is not with this current group, but rather that the old liberals on the court will die or retire during the current administration, giving Trump the chance to appoint more conservatives.

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