Jeffrey Toobin's The Nine: Inside the Secret World of the Supreme Court:
I'd heard great things about this book, and so I read it with high expectations. It is indeed well-written, interesting, and, though it's opinionated, it is generally fairly balanced (though not entirely so). I didn't find much that was strikingly new there, but I've followed the Court quite closely; I expect that others will find a good deal of new material there, and I found some myself.
Still, I was in many instances disappointed by the book. I'm not sure whether I might have been in too nitpicky a mood, or perhaps had my expectations set too high. Still, there were more than a few instances in which I saw some pretty significant omissions or misdescriptions — sometimes in situations when the facts were seemingly being shoehorned into the theory that the book was at that point propounding. Let me give four examples.
1. On p. 301, the book is setting forth the theory that Justice O'Connor moved to the left in the early 2000s. The theory itself may well be sound, to some degree. But consider the following passages that seem to be framed as support for the theory:
For all of O'Connor's fondness for Roberts, his appointment did not restrain  the move to the left that characterized her jurisprudence and  thus  the Court's. Indeed, as Rehnquist and O'Connor prepared to leave, there was a quality of a Prague Spring in the Court's decisions —  a last gasp of liberalism before a likely surge to the right. At the end of his tenure,  Rehnquist was never more beloved, but also never more irrelevant. [Bracketed numbers added. -EV]
Take, for example, the chief's vaunted federalism revolution. [Some details that go into the federalism debate and mention the Raich medical marijuana possession case, and that don't mention O'Connor, omitted. -EV]
In Gonzales v. Raich, six justices, including Kennedy and Scalia, said that Congress could indeed prohibit private, doctor-authorized pot farming....
The trouble is that Raich is a counterexample for three of the five assertions in the first paragraph, not an example. Raich might be seen as an example of "the Court's [move to the left]" (assertion 3), if one treats the rejection of a judicially enforceable enumerated powers doctrine as a left position, and of Rehnquist's "irrelevan[ce]" (assertion 5). But consider the other three assertions:
- O'Connor didn't move to the left (assertion 1) in Raich: She took the "right-wing" restraints-on-government-power position in Raich (something the book never explicitly says).
- The Court's move to the left in Raich did not stem (in a "thus" relationship, as assertion 2 posits) from O'Connor's position — it moved in spite of O'Connor's vote.
- Even setting aside the singularly inapt Prague Spring metaphor (Prague Spring was a brief moment of democracy, preceded by dictatorship and followed by foreign tanks), Raich is not an example of "a last gasp of liberalism before a likely surge to the right" (assertion 4): The six Justices in the Raich majority remain on the Court, so Rehnquist's and O'Connor's retirements would either not affect the Raich lineup or turn it into a 7-2 or 8-1 case (if Roberts and Alito are more like Scalia than like Thomas).
So the example undermines three of the five claims that it's supposed to exemplify, and supports only the other two. Yet a casual reader who doesn't know the Raich
lineup (and doesn't infer it from the ambiguous "six justices, including Kennedy and Scalia") might well assume that the example does fully support the opening paragraph.
2. On p. 90, the book talks, with some admiration, about the strategy of Jay Sekulow, one of the leading lawyers of the Religious Right. Sekulow's first Supreme Court case, the book says, was the Jews for Jesus' challenge to a Los Angeles International Airport ban on all "First Amendment activities":
The original theory of the case was straightforward. Proselytizing was a form of religious activity among Jews for Jesus followers. A blanket ban on the practice thus interfered with their First Amendment right to the "free exercise" of their religion. That was how these cases had customarily been argued. Religious expression was always defended under the Free Exercise Clause.
But Sekulow's relative ignorance about the Constitution turned out to be his best weapon. Sure, cases involving religion were always argued under the Free Exercise Clause. But Sekulow came up with a different theory. The First Amendment, after the religion clauses, goes on to say that Congress shall make no law "abridging the freedom of speech." (In a series of cases after World War II, the Court said that the First Amendment was binding against states and localities as well as Congress.) Sekulow thought the eviction of the Jews for Jesus minister was a speech case, not a religion case....
[Later on p. 94, following a discussion of Sekulow's other free-speech-based victories for religious speech:] By the midnineties, the issue was settled. According to the standards of Supreme Court litigation, Sekulow had emerged out of nowhere to revolutionize an important rule of law. As a result of his efforts, it was clear that if a school, airport, or other public forum was going to open up its facilities to some individuals or groups, the authorities couldn't exclude religious speakers from the list.
But of course religious speech cases had long been argued under the Free Speech Clause as well as under the Free Exercise Clause. The 1943 West Virginia Board of Education v. Barnette case — which the book discusses just three pages earlier — struck down a compulsory flag salute as a violation of Jehovah's Witnesses' free speech rights; the Witnesses had lost on a religious freedom theory just three years before, in another case the book cites. In fact, many of the leading free speech cases of the late 1930s and 1940s, such as Schneider v. New Jersey (which upheld the right to leaflet) involved "religious expression" "defended under the Free [Speech] Clause," not the Free Exercise Clause. Some other leading cases of that era, such as Cantwell v. Connecticut, involved religious speakers who successfully sought protection both under the Free Speech Clause and the Free Exercise Clause.
What's more, in 1981, just six years before the Jews for Jesus case reached the Supreme Court, the Court's Widmar v. Vincent decision had upheld religious speech rights on public property — there, university classrooms rather than airports — based on the Free Speech Clause, on the theory that religious speech couldn't be discriminated against in a publiuc forum. The same year, the U.S. Court of Appeals for the Fifth Circuit upheld (in Fernandes v. Limmer) the rights of speakers to leaflet in airports; the case was brought by a religious group (the Hare Krishnas), relying on the Free Speech Clause as well as on religious freedom. And the same year, 1981, the U.S. Court of Appeals for the Ninth Circuit (in Rosen v. Port of Portland) reached the same result, relying entirely on the Free Speech Clause, in a case involving the Jews for Jesus themselves. Sekulow became general legal counsel for the Jews for Jesus in 1986; in mid-1980, when the Rosen case was briefed, Sekulow had apparently just graduated from law school, and was on his way to a job as a lawyer for the IRS.
So it may well be true that Sekulow is, as the book suggests, a skilled and important legal strategist for the Religious Right. But his supposed great innovation — which changed the way "[r]eligious expression was always defended" — seems to have been no innovation at all.
3. On p. 194, the book says:
Even without outright opponents of the death penalty like Brennan, Marshall, and (eventually) Blackmun, the Court in the Bush years imposed new limits on executions. In 2002, the Court said judges alone, without the concurrence of jurors, could not impose death sentences; also that year, the justices ruled that the execution of the mentally retarded violated the Eighth Amendment's ban on cruel and unusual punishments. These rulings all came over the vigorous dissents of Rehnquist, Scalia, and Thomas — sometimes joined by Kennedy or O'Connor, who was an especially strong supporter of the death penalty — but the shift on the Court as a whole was unmistakable.
But the 2002 decision holding that there's a right to jury trial in death sentencing was joined by Justices Scalia and Thomas (Rehnquist and O'Connor were the lone dissenters).
4. On p. 309, the book describes the Solomon Amendment case, Rumsfeld v. FAIR, by saying
In short, Roberts said that he who pays the piper calls the tune. "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept," he wrote....
Yet the Court actually refused
to rest on the proposition that "he who pays the piper calls the tune," and instead held that the government could mandate access to universities by military recruiters even if this was a flat mandate rather than a condition on federal assistance
This case does not require us to determine when a condition placed on university funding goes beyond the "reasonable" choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.
The "Congress is free" quote is from Grove City
, and was quoted by Chief Justice Roberts only as part of his description of Grove City
* * *
So how big a deal is all this? Maybe not that much; maybe these errors and some others I found are about par for the course even for a well-written book. Still, they made me worry how accurate some of the other material was — material that I didn't know as much about, and thus couldn't fact-check myself.
Jeffrey Toobin's The Nine and Justice Thomas:
I blogged below about some factual errors in The Nine that worried me. But I was also troubled by a couple of other things; they are judgment calls, and perhaps you might agree with the author's judgment more than mine, but I thought I'd mention them.
In particular, let me start with the book's treatment of Justice Thomas, which at times strikes me as not entirely fair. Let me offer a few example:
1. On pp. 109-10, the book discusses Justice Thomas's speech in which he asserts "my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black." Justice Thomas, the book argues, "chose to attack straw men. No one quarreled with Thomas's right to his own views; no one said black people had to speak with one voice; no one asserted that support for causes like affirmative action was obligatory for Thomas or anyone else .... It was the substance of Thomas's views, not his right to hold them, that his critics attacked."
Is that really right? Unless I'm mistaken, Justice Thomas has quite often been faulted for his positions not just substantively, but by being damned as a traitor to his race, Uncle Tom, house Negro, and the like — statements that do suggest that he should have had certain ideas precisely because he's black, and that black leaders did indeed have to speak with one voice on those issues. As leading liberal black professor Randall Kennedy put it (describing the phenomenon, not endorsing it), "[a]mong professional blacks, especially lawyers, he is widely ostracized and routinely vilified as an 'Uncle Tom.'" Former Surgeon General Joycelyn Elders publicly called Thomas an "Uncle Tom" (see Wash. Post, May 2, 1995); the Rev. Joseph Lowery publicly said (see Atlanta Journal & Constitution, June 4, 1996) that Thomas "has become to many in the African-American community what Benedict Arnold was to the United States, a deserter; what Judas was to Jesus, a traitor, and what Brutus was to Caesar, an assassin." Is Justice Thomas really attacking straw men when he responds to this the way he did? Is it really the case that "no one [has] asserted that support for causes like affirmative action was obligatory for Thomas" and other blacks like him?
2. Likewise, on p. 112, the author dismisses Julianne Malveaux — who said in a cable interview that "I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do" — as "an obscure columnist." Her columns have appeared roughly once a month in USA Today, one of the highest-circulation newspapers in the country.
3. On p. 111, the book describes how Thomas received a $1.5 million book advance for his memoirs from Rupert Murdoch, and adds in a parenthetical, "More than three years after the contract was announced, and $500,000 paid to him, Thomas had still not delivered a manuscript." If that's just faulting Justice Thomas for being a slow writer, that's fine, though I expect that three years isn't that long a time for writing a manuscript. But if the claim is that he's somehow taking money and delivering only vaporware — which I think is the impression the parenthetical leave — might it have been worth mentioning that the book is coming out just a few weeks after The Nine? The author might not have known this when he was writing the manuscript, but I'd think it could have been checked before The Nine went to press.
4. On p. 111, the book also reports that
Thomas received even more direct financial benefits from his job [besides the payment for the book].... Thomas received $42,200 in gifts over a six-year period. This was more than seven times as much as any of his colleagues, whose gifts tended to consist of crystal figurines and plaques. (Most of the justices accepted all-expenses-paid trips to destinations around the world, where they lectured at universities and met with judges ....)
So with the parenthetical, what's the point of the material that goes before? An all-expenses-paid trip is also a gift; if a Justice (say, Kennedy, O'Connor, or Breyer) got a couple more such trips a year than Thomas did, it would easily make up for the $7000 per year in gifts that Thomas got.
Now likely on balance Justice Thomas got much more "tangible, as well as psychic, rewards" stemming from his service, given the book proceeds. But why then the focus on the $42,200 in gifts over six years (nearly half of which, incidentally, involved one gift the value of which was likely psychic more than tangible — a $19,000 Bible once owned by Frederick Douglass)? And if one focuses on the gifts, why not estimate the value of the trips received by the other Justices?
5. On p. 108, the book acknowledges that, "To say that Thomas opposed affirmative action is not to say that he fought all efforts to help poor people, especially blacks," and gives examples of his personal attempts to help black youngsters. Now this is even more of a judgment call, but wouldn't this have been a great opportunity to mention Justice Thomas's specifically judicial attempts to help blacks, by fighting doctrines that he thought unfairly limited government action that would be helpful to blacks?
The most obvious example is his concurrence in Zelman v. Simmons-Harris, which argued that liberal readings of the Establishment Clause that restricted school choice programs were both constitutionally unsound and harmful to poor people, especially blacks. Here's how the concurrence began:
Frederick Douglass once said that "[e]ducation ... means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court's observation nearly 50 years ago in Brown v. Board of Education, that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education," urban children have been forced into a system that continually fails them. These cases present an example of such failures. Besieged by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emergency when Ohio enacted its scholarship program.
The dissents and respondents wish to invoke the Establishment Clause of the First Amendment, as incorporated through the Fourteenth, to constrain a State's neutral efforts to provide greater educational opportunity for underprivileged minority students. Today's decision properly upholds the program as constitutional, and I join it in full.
There were other examples, too: Consider his solo dissents in Dawson v. Delaware
and Virginia v. Black
that would have upheld sentence enhancements for racist prison gang members and punishment for cross-burners. In both cases, Justice Thomas thought that the other Justices' interpretation of legal doctrine stymied worthwhile governmental attempts to protect blacks against white violence and threatened violence.
Now, Justice Thomas might have been wrong in some or all of these cases. (I agree with him on Zelman, disagree on Black, and am not sure about Dawson.)
But they, together with Zelman, strike me as important elements of the way in which Thomas did indeed defend, rather than fighting, "efforts to help poor people, especially blacks." They illustrate that Thomas seemed to take seriously various problems facing American blacks, even though he had a different sense of how they could best be solved (and how they could constitutionally be solved). And they show that Thomas thought about this within his judicial role, not just in his personal life. It's to the book's credit that it shows his personal actions along these lines. But when you're writing about a Justice, why not also show what the Justice has done as a Justice in this area?
6. On p. 101, the book writes that "Thomas always joined these states' rights rulings but often wrote concurring opinions urging the Court to cut back even more on federal authority"; it gives as an example a federalism opinion, but then goes on to Justice Thomas's concurrence in the Brady Bill case, Printz v. United States:
Thomas signed on to Scalia's majority opinion, of course, but in a brief concurrence suggested an even broader point, that all gun control was unconstitutional. He wrote, "Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right."
But where, other than in the author's mind, is any suggestion that all
gun control was unconstitutional? Not in Justice Thomas's opinion. Not in the inherent logic of the "personal right" view: As the author points out, Justice Thomas takes a broad view of free speech, and surely he, alongside everyone else, believes that free speech is a personal right — but that doesn't mean that all speech controls are unconstitutional. It may well be that Justice Thomas takes a broad view of the Second Amendment's guarantees (which is hard to tell), especially if he thinks the Brady Bill might be unconstitutional. But I see no suggestion that Justice Thomas's view would lead to the invalidation of "all gun control."
Again, these are judgment calls; maybe I'm mistaken in faulting them, or maybe I'm making too much of them. But they, and other examples like them, helped sour me on the book.
More Criticism of Jeffrey Toobin's The Nine
come from Ed Whelan in the National Review Online, here, here, and here.
My Take on -- And My Frustration With -- Jeffrey Toobin's "The Nine":
I just finished reading Jeffrey Toobin's new book
about the Supreme Court. Like Ed Whelan
, and to some extent, Eugene
, I found myself rather frustrated by it. In this post I wanted to explain why.
First some background. Books purporting to offer an "inside" picture of the Supreme Court generally mix and match three different types of reporting: first, inside reports from clerks and/or Justices willing to speak with the author (aka "the good stuff"); second, the public record of cases, arguments, opinions; and third, the author's characterization of events and efforts to fill in gaps that allow the author to weave a good narrative.
On the whole, I thought Toobin's book had some but not lots of "the good stuff," the inside scoop from Justices and clerks. The most important contribution to the book is probably its substantial material on how the world looks from the perspective of Justices O'Connor and Breyer, both presumably sources for the book. (In case you're wondering, the gist of it is that both of them envision/ed their job as finding workable and sensible solutions to practical problems and avoiding things that seem extreme.) For Supreme Court geeks, there are some interesting tidbits here and there; some I was familiar with, and some were new.
At the same time, I found myself fustrated by Toobin's overall narrative and tone. Toobin sees the Supreme Court as all politics, and his politics are obviously pretty liberal. As a result, the book follows a simplistic and sometimes caricatured political narrative. The liberal Justices tend to be portrayed quite favorably as wise and able heroes. The conservative Justices and conservative legal ideas generally tend to be seen as scary, hypocritical, and/or out of touch.
Toobin's fascination with the seemingly nonexistent
"Constitution in Exile" movement is particularly telling. VC readers will know this movement either doesn't exist or consists of three dudes meeting for dinner once in a while. But Toobin seems to think this "movement" is central to conservative legal thought. He mentions it by name 6 or 7 times, and appears to see it as an important part of the dynamic at the Supreme Court. For example, Toobin writes that Justice Souter "moved left" after 2000 because he "had a visceral horror of such conservative undertakings as the Constitution in Exile." (p245) In discussing how little was known of President Bush's legal views, Toobin writes: "As for a more detailed philosophy, like whether Bush supported the Constitution in Exile — and a return to a 1930s conception of the role of the federal government — no one really knew." (p260). Toobin uses this technique to make conservatives seem scary and hypocritical: he writes that although the jurisprudence of traditional "conservatives like Potter Stewart" (?) embraced judicial restraint and deference to other branches, "the new generation of conservatives . . . did not believe in judicial restraint, and they represented a new kind of judicial activism themselves." (p14) Subtle, eh?
I thought Toobin's caricature of Justice Thomas was particularly unfair. Eugene has mentioned
some of the difficulties with Toobin's coverage of Thomas. Here's another passage that gives you an idea of the problem:
Probably the greatest contrast between Thomas and his colleagues was that he fundamentally did not believe in stare decisis, the law of precedent. If a decision was wrong, Thomas thought it should be overturned, however long the case may have been on the books. . . . All justices of the Supreme Court, from Brennan on the left to Scalia on the right, develop something close to reverence for the Court's precedents; no one besides Thomas would have dismissed two hundred years of stare decisis in such a cavalier way. [p102-103]
I find this characterization quite puzzling. Obviously Justice Thomas believes in stare decisis: If you read his opinions, every single one cites precedents for positions that he is accepting without reconsidering them. Justice Thomas believes less in stare decisis in some contexts where other Justices believe in it much more, but it's inaccurate to suggest this means Justice Thomas has no belief in stare decisis at all. Similarly, it seems quite odd if not completely bizarre to suggest that Justice Brennan had "reverence" for stare decisis. Elsewhere in the book, Toobin notes Justice Brennan's famous line that the most important rule of law at the Supreme Court was the "rule of five" — with five votes, you can do anything. Kinda hard to square that with reverence for precedent, eh?
More on Jeffrey Toobin's The Nine and Justice Thomas:
In my post on this last week, I forgot to include one item that strikes me as especially telling. It's from p. 102:
Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects -- "dogs," in the Court's parlance. When asked which of his opinions was his favorite, Thomas would usually cite a 1996 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a "knuckle" between two cars. "It was a little case that didn't matter to anyone," Thomas said in a speech. "It's almost inconsequential. It was a fun little opinion. I went back into the history of trains." (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas's opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)
This is precisely the sort of thing you wouldn't expect in a book that takes the Supreme Court seriously. The first sentence is probably right, and a sensible evaluation of Justice Thomas's influence as a majority opinion writer (as opposed to as one of nine votes, or as a dissenter). It's a judgment call, of course, but my sense is that indeed Justice Thomas had not been assigned to write the majority opinion in the most high-profile, controversial, or otherwise important cases.
Look, though, at the parenthetical. The case, we're told, is not inconsequential because it had an effect on some litigants, and because the particular litigant in this case couldn't recover for his serious injury. But Justice Thomas was of course talking about how inconsequential the case was by the standards of the Court. He and other Court-watchers know that the Court agrees to about 1% of all the cases it's asked to take. It doesn't take cases, especially cases on statutory interpretation, just to resolve an error below, or even set forth the right rule; it takes them to set the lower courts straight on an important topic that is likely to arise repeatedly.
And by the standards of the Court's cases, this particular case, Nortfolk & Western Ry. Co. v. Hiles, is indeed of little consequence. Consider one measure of consequence -- the degree to which the case is cited by other cases. (This isn't a perfect measure, but it's a good first cut.) Hiles is in volume 516 of U.S. Reports, which contains 33 cases decided by opinion. Those 33 cases put together were cited in 1769 cases in 2006, for an average of about 50 yearly cites per case. Hiles was cited in 1 case in that year, a little below the average of 2 cases per year since it was handed down.
I can understand how an average editorialist who wants to complain about Justice Thomas could make this sort of argument. No case in which people were maimed and as a result of which others would be denied recovery, the argument would go, should be treated as inconsequential or insignificant. Justices should treat each case as important. Oh, and let's add a whiff of "the youngest, cruelest justice" -- how could Justice Thomas be so insensitive to the plight of poor William Hiles?
But someone who is writing a serious book about the Supreme Court can't, I think, take this sort of view. The Justices are asked to hear several thousand cases each year. Many of them center around one or another tragedy. Consequence to one or a few people, while enough to bring a tear to the eye of some journalists, can't be the measure of a case's significance to a serious commentator on the Supreme Court.
And of course Jeffrey Toobin takes precisely this view in the opening sentence: None of Justice Thomas's majority opinions were "truly significant." Of course all of them affected the litigants, and affected the law, but significance is a comparative matter. Yet let Justice Thomas refer to the "[not] truly significant" cases as "almost inconsequential," and he gets condemned for apparently neglecting the importance of horrific accidents and an injured plaintiff (a plaintiff whose legal claim, incidentally, was rejected by a unanimous Court, not just Justice Thomas).
All this, I think, reinforces my diagnosis: What is otherwise a serious book about a serious subject doesn't seem able to maintain its seriousness when it comes to this particular Justice.
Jeffrey Toobin Looking for Corrections:
Jeffrey Toobin writes:
I've been reading your posts on The Nine with interest. I am serious about correcting errors in my books, and I intend to fix anything I can. (Differences of opinion and interpretation are another story, of course.) In any event, I'd continue to welcome your thoughts or those of your colleagues. You can also post this email if you like.
I much appreciate the sentiment, and want to urge readers to pass along, in the comments to this post, any other errors they might have found. Please limit this to items that you think are genuine errors that require correction, and of course please be polite and substantive.