Toobin’s The Nine: Lost Illusions
posted by Frank Pasquale
I thoroughly enjoyed my speed-read of Jeffrey Toobin’s The Nine. Few books wrap so many deliciously gossipy details about the justices’ life and work around one fundamental insight, which I’ll relate upfront:
[Chief Justice Roberts has said] “Judges are like umpires. Umpires don’t make the rules; they apply them.” [But] Supreme Court justices are nothing at all like baseball umpires. . . . When it comes to the core of the court’s work, determining the contemporary meaning of the constitution, it is ideology, not craft or skill, that controls the outcome of the cases. As Richard A. Posner. . . has written, “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly. . . . [They] can be decided only on the basis of a political judgment. . . . “. [W]hen it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.
Toobin shows how the justices’ stands are deeply rooted in their biographies, ideologies, and personalities. For example, Thomas loathes Yale (he placed a “Yale Sucks” bumper sticker “on the mantel of his chambers for some time”) and loves Red State NASCAR culture. Breyer’s cosmopolitan views reflect bien pensant Cambridge (Mass.) and Oxford (England). It would take a minor miracle to get these two men to see affirmative action, campaign finance regulation, or abortion in the same way. And frankly, their divergent worldviews will often lead to irreconcilable conflicts on statutory interpretation as well.
Toobin’s book accelerates the classic dynamics of celebrity: it feeds public interest in the justices’ quirks and peccadilloes, then leaves us wondering: why are these people so powerful, anyway? As Britney wilted under constant media scrutiny, so too do the justices appear all-too-human under the glare of Toobin’s meticulous reporting. Toobin claims that the last five justices appointed have “turned out precisely as might have been expected by” their presidential sponsors. He gives the impression that they mechanically advance the interests of the political machines that elevated them.
So where does this leave lawyers? Perhaps a bit more comfortable with the administrative state, which can be more frankly (and accountably) political. Some agencies may also find their legal “freedom of maneuver” more constrained by science and expertise than the Supreme Court would. As Cass Sunstein has stated, “the law’s meaning is not a ‘brooding omnipresence in the sky’–and . . . the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends.” Until a book like The Five (about, say, the Federal Communications Commission) shatters our faith in their capacity to escape capture and promote the public good.