The Square Circuit

Academia, parenthood, living in a bankrupt city, and what I read in the process.

Tuesday, March 11, 2008


Just finished Jeffrey Toobin's THE NINE, a personality-driven history of the Supreme Court since the Reagan years. Toobin writes on legal affairs for the NEW YORKER and is a TV talking head, so his take on many of these issues has become pretty familiar. Basically, the book argues that the Rehnquist court got more and more liberal over its history, largely because the most conservative voices (Scalia and Thomas) were either so bombastic or so extreme that they could never really dominate and because Rehnquist himself was a much better leader in an administrative rather than an ideological sense. So although for a while eight of the Justices were Republican appointees, the court kept moving to what Toobin sees as the left. This happened because the intellectual and practical center of the court became Sandra Day O'Connor, whose country-club Western Republicanism started to look more and more like liberal Republicanism. Her legal philosophy, according to Toobin, came from her experience as a legislator in Arizona: she was always looking to split differences, compromise, get things done, rather than to make the sweeping decision that would overturn precedent. And because of this moderation, she was able to get the other moderates (Souter, Kennedy) to go along with her for the most part, and they tended to side with Stevens and Breyer and Ginsburg, because the other side was so extreme. He argues that things continued to get even more liberal up until the time that O'Connor and Rehnquist left the court essentially simultaneously, bringing Roberts and Alito to the court--Justices whom nobody doubted would side with Thomas and Alito most of the time. How did this happen? Toobin traces the genesis and ultimate success of the Federalist Society, the reactionary legal organization born around the time of Reagan's ascension largely in response to the utter domination of law schools by the left. By the time Bush II took office, the Federalist Society had 40,000 members and it essentially became the sole source of personnel for Bush II legal jobs, from the Justice Department to the courts to the White House.

It's a smart book and, much like a New Yorker article, focuses much more on personality than on nuts and bolts. But Toobin is good with the context of landmark cases like Casey, Hamdan v. Rumsfeld, and Lawrence v. Texas. It's a profile, not a scholarly book (not that I WANT a scholarly book on this topic).



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