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Friday, September 14, 2007

"The Nine"

I just received in the mail a copy of Jeffrey Toobin's new book, The Nine:  Inside the Secret World of the Supreme Court. I am kind of a sucker for these "behind the scenes" Court-related books, so I will probably read it soon.  I really enjoyed Jan Crawford Greenburg's Supreme Conflict (link), and so I'm interested to see how Toobin's book compares, particularly when it comes to the Roberts, Alito, and Miers nominations.

I shouldn't hold it against the book, I know, but some of the blurbs and bits in the Doubleday release that accompanied my copy were a bit eyeroll-inducing -- at least, they would be to those who, like me, think that all this talk about the Supreme Court's "dramatic turn to the right" misses the mark, or is at least premature.  It's a bit much, I think, to promise "the story of Samuel Alito's decades-long role in the fight to overturn Roe v. Wade based on his Casey opinion.  And, Toobin's publicists -- looking for human-interest bits, I suppose -- describe as "unlikely" a friendship between Justice Thomas and a lesbian law clerk whose parter was a professional snowboarder.  Of course, those who know Justice Thomas know that there is nothing "unlikely" about a friendship between Justice Thomas and, well, anyone.

At the "heart" of Toobin's account, apparently, is the "personal transformation of one person -- Sandra Day O'Connor."  A big part of his story is what he claims was Justice O'Connor's increasing "alienation" from the Bush Presidency.

We'll see . . .

Posted by Rick Garnett on September 14, 2007 at 10:41 AM in Current Affairs | Permalink


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I know exactly what you mean about the eye-rolling stuff. I'm about halfway through it, and it seems somewhere between Greenburg's book and Tushnet's - but much closer to Tushnet's, I think, in terms of tone. The author's position is not even thinly-disguised - he doesn't like the new majority, he doesn't like the federalist society, and so forth - nothing we didn't already know. I find myself scribbling in the margins at stuff that's accurate but misleading - discussing Justice Thomas, whom Toobin seems particularly hostile towards, he asserts that Thomas takes more financial gifts than other members of the court. I don't know if that's true, but it seems unmoored from the fact that Thomas is, IIRC, the least financially-secure member of the court. In the photo supplement in the middle of the book, we get photos of the Justices - which picture of Justice Scalia do they select? The one from the incident in Boston, titled something to the effect of "Scalia in a characteristic pose." There's dozens of these little eye-rolling incidents. The unhidden grudges of the author makes the reader a little suspicious about the author's motives when he skips key details.

I was intrigued that he at least hints at a grudging concession that at least three of the five in Bush v. Gore had good faith motives (although that seems at odds with the overall tone), and was astonished by the (unsupported) suggestion that Scalia encouraged the equal protection argument in the per curiam. If that holds up, I'll be pretty disappointed - I had concluded a while ago that the three reluctantly joined the two out of sheer ignominious necessity (as Prof. Althouse has well-put the point, the 5-4 result was not the worst possible outcome - "imagine if the Court’s critics had been able to say that the Court gave the presidency to Bush citing two completely different reasons, both of which were rejected by a majority of the Justices!" Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court, 61 Md. L. Rev. 508 (2002)).

It's certainly an enjoyable read, but I keep seeing these nagging little problems that suggest that Toobin either just doesn't get the point (for example, he twice so far seems to have missed what seems to me to be the significance of Rehnquist's opinion assignment), or is deliberately skewing by misrepresentation.

Posted by: Simon | Sep 14, 2007 12:56:05 PM

I'm still waiting for the great "turn to the right" that David Savage predicted fifteen years ago.

Posted by: Adam | Sep 14, 2007 1:52:06 PM

Adam, the Court is always turning to the right.

Posted by: Orin Kerr | Sep 14, 2007 3:35:53 PM

yeah, it's not like abortion rights have been limited, voting rights rulings going to the right, affirmative action limited, criminal procedure moving in favor of the police, and so on. There really is no reason anyone might think the court has moved to the right over the last 25 years or so. It's all just people's imagination.

Posted by: Matt | Sep 14, 2007 5:38:38 PM

Matt, I can just as quickly rattle off cases like Lawrence, the Gitmo cases, the death penalty cases, the reaffirmation of Miranda, the entrenchment of affirmative action, the entrenchment of abortion rights in Casey and the first partial-birth abortion case, to demonstrate that if there's been any move to the right, it's been marginal at best. Far short of the hellfire-and-brimstone that Savage and others predicted in the late 1990s.

Posted by: Adam | Sep 14, 2007 11:44:23 PM


If you could choose between the state of constitutionl law today and the state of constitional law in 2000, 1990, or 1980, which would you pick and why?

Posted by: Orin Kerr | Sep 15, 2007 12:01:52 AM

Actually, Matt, feel free to also pick from 1970, 1960, 1950, or any other period before then.

Posted by: Orin Kerr | Sep 15, 2007 12:06:16 AM

The "reaffirmation" of Miranda, of course, is mostly smoke and mirrors- the stuff people have to stay on TV remains but pretty much every case has cut back and back from the first decision. On the death penalty we've certainly not moved much to the left from the late 70's, have we? The big anti-death penalty victories have been things like saying it's not okay to execute the mentally ill and the like, but pretty much everything else has moved against prisoners since the reaffirmation of the death penalty. It's not clear the Guantanimo cases are move to the left as much as refusals to move to the craziest positions on the right. There are a few areas of improvement in constitutional doctrine- mostly in regard to rights for homosexuals, but it's a narrow area. Over all the doctrine of the court (not the larger law in general, of course, which changes independently of the court, but the doctrine of the court itself) was pretty much obviously more left than now in the late 70's. Would you really deny that, Orin? Can you think of many general and important areas where the court (not the law in general) has clearly moved to the left over the last several years? I'd be surprised to hear.

Posted by: Matt | Sep 15, 2007 12:25:21 AM

One more thought: even in an area like free speech, where a superficial look seems to indicate a move to the left by the court over the last 25+ years this is less clearly so than a quick glance might lead one to think. This is in part because much of the free speech doctrine of the last 25+ years has largely been directed at protecting corporate interests. There's nothing inherently wrong with that, of course, but protecting commercial speech isn't obviously a left priority while it certainly is a priority of the business wing of the Republican party. To see this one needs only compare the free speech decisions of the last 25+ years with, say, the views put forward by Cass Sunstein in his book on free speech or, even more, Owen Fiss in his book on the subject.

Posted by: Matt | Sep 15, 2007 11:29:49 AM


Taken historically, most areas of law have not really changed much since the late 1970s. There were truly revolutionary changes from 1960 to the late 1970s, and then very few changes since then. The most notable areas that have moved to the "left" since the late 1970s are gay rights (Romer, Lawrence, etc.), and the death penalty (significantly diminished since the Supreme Court restored it in '76, including cases like Ford v. Wainright, Atkins v. VA, Roper v. Simmons, Coker, all designed to chip away at the death penalty so that it can only be used in a very narrow category of cases), with lots of pockets of important decisions like race-based jury selection (Batson wasn't decided until 1986), sentencing law (the quite unexpected Blakely revolution), the confrontation clause (gutted by Justice Blackmun in 1980, resurrected by Justice Scalia in 2004), and the like.

But most areas of law haven't changed much, certainly nothing like the changes from 1960 to the late 1970s. In recent years, the Supreme Court has been a mixed bag in a political-valence sense. Some terms the law has moved to the "right" on the whole (e.g., OT00), and in other terms the law has moved on the whole to the "left" (e.g., OT03). The more remarkable historical trend is that the Supreme Court is doing so little these days. The Court is taking so few cases, and its Justices are far more interested in legal craft than any Court in U.S. history, resulting in very little happening. Of course, the message "Nothing happening at the Supreme Court these days" sells very few books.

Posted by: Orin Kerr | Sep 15, 2007 11:41:49 AM


Your point about First Amendment law is a good reminder -- don't forget Free Speech Coalition v. Ashcroft, ACLU v. Reno, Ashcroft v. ACLU, etc. I don't know what Owen Fiss thinks about these cases, but even without his guidance I think they are generally seen as liberal First Amendment decisions.

Posted by: Orin Kerr | Sep 15, 2007 11:47:52 AM

I'd respectfully submit that you'd not think that "nothing happen[ed]" at the Supreme Court in the last several years if you were, say, a woman in need of an abortion, a criminal defendant, a minority having trouble being fairly represented in congress or applying to college, and so on. If it seems like nothing has happened this might well have to do with the situation you stand in as a privileged white man.

The first amendment issues are clearly more mixed, as I noted, but also not all clearly to the left.

Posted by: Matt | Sep 15, 2007 5:06:55 PM


Your rhetoric is strong, but I don't think the cases back them up. That's why I have been commenting in this thread: I see a very big gap between what the cases say and the rhetoric used by critics. Your response to this alleged gap is to rev up the rhetoric again and toss in an ad hominem argument for good measure. My sense is that this brings us to an impasse: You seem to think your statement proves your point, whereas I think your statement nicely demonstrates mine.

Posted by: Orin Kerr | Sep 16, 2007 1:30:46 PM


Are you actually saying that the average liberal democrat or left-wing activist would welcome the loss of the decisions in Lawrence v. Texas, the reaffirmation of affirmative action, the Gitmo cases, and such cases in exchange for rolling back the cases you cite as evidence of a rightward shift? That strikes me as preposterous.

This can be settled easily enough: Just name five right-wing cases so egregious that their reversals would be worth dissenters' victories in Hamdan, Rasul, Grutter, Lawrence, and Casey. (Which is not to say that those are the five most "left-wing" cases of the last 25 years -- they're just the first five that come to mind.)

Posted by: Adam | Sep 16, 2007 7:33:47 PM

Regarding the "rightward shift" issue: I personally find the usual journalistic coverage of these issues quite shallow, since I think there are many cross-cutting cleavages within the groups usually lumped in together as left/right, Democrats/Republicans. For just one example, see Greenspan's critique of Bush in his recent memoir, or Reich's critique of Clinton & Rubin.

But Cass Sunstein appears to offer some evidence of a "rightward shift" for those who accept the conventional dichotomy; see

"In 1980 Stevens often operated as the Court's median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. If he qualifies for that position, it is not because of any significant change in his own approach, but because of a massive shift in the Court's center of gravity."

"A quiz question: Of the nine members of the Court, who have been the most likely to strike down decisions by executive agencies, such as the Environmental Protection Agency, the National Labor Relations Board, and the Federal Communications Commission? Would you be surprised to hear that the answer is Scalia and Thomas? (It is.) And would you be stunned to learn that they were more likely to strike down such decisions made by the Clinton administration than by Republican administrations? (They have been.)"

Posted by: Frank | Sep 16, 2007 9:13:23 PM

Frank, Sunstein'a article seems very nearly as evenhanded, dispassionate and credible as Toobin's book. ;)

Posted by: Simon | Sep 16, 2007 11:43:52 PM


I thought Sunstein's piece was weak, for reasons I blogged about here.

Posted by: Orin Kerr | Sep 17, 2007 2:35:09 AM

Corrected link to Orin's post.

Posted by: Simon | Sep 17, 2007 9:06:40 AM

"Are you actually saying that the average liberal democrat or left-wing activist would welcome the loss of the decisions in Lawrence v. Texas, the reaffirmation of affirmative action, the Gitmo cases, and such cases in exchange for rolling back the cases you cite as evidence of a rightward shift?"

Of course I'm not saying that. I suppose you'd be hard pressed to find that in my remarks above. Also, similar to the Miranda issue, the "reaffirmation" of affirmative action is probably better seen as a very significant reduction in it. It's a funny sort of reaffirmation, at least.

Orin- I suppose we just disagree. My last point wasn't to attack you personally and I appologize as much as it seems to be so. But really, to see these changes as minor I think you have to be in a certain position, one where the changes _are_ minor. You are pretty clearly in that position and I don't see pointing that out as being irrelevant.

Posted by: Matt | Sep 17, 2007 10:15:36 AM

Orin, you are correct that moving from left to right does not necessarily entail moving across the centerline. That fact alone, however, does not address whether in any particular instance a move to the left does or does not result in a hemispheric shift. Thus, I don't see how your response to Sunstein's post does anything other than suggest that it is possible that he is incorrect. Further, Sunstein's post does actually address changes in the law that suggest the shift is at least significant; whether it crosses the center may depend on who draws that line.

Posted by: Jim Green | Sep 17, 2007 10:33:38 AM

This is an interesting thread, but I have to confess that some of the debate seems beside the point. The Court has become increasingly conservative since, roughly, the Nixon Four were appointed; this much is empirically demonstrable and any position to the contrary can't be taken seriously. The Republicans, save for Clinton, have held the White House for over thirty years and they have placed justices on the Court that are, more or less, conservative.

That said, I agree that liberals have, any time a conservative decision comes down in an "important" case, decried the state of the Court and predicted the "great turn to the right." I don't know what that means. A roll-back of all the major Warren Court precedents? Reversing the New Deal Constitution? Of course none of those are going to happen.

Moreover, calling Lawrence a liberal decision (it is) somewhat misses the point. The Lawrence decision is better seen as a reflective of changing societal mores that no longer accepts criminalizing one's sexual preference as acceptable. Well, I don't get paid for blogging so I need to get back to work, but I'd love to hear more from Professor Kerr (and Im going to read your response to Sunstein (soon)).

Posted by: Calvin TerBeek | Sep 17, 2007 10:56:41 AM

"Of course I'm not saying that. I suppose you'd be hard pressed to find that in my remarks above."

Actually, you've said precisely that. Your point has been that, for the last couple of decades, things have gone better for the conservatives than for the liberals. But, as reference to those cases illustrates, liberals' victories have been far more precious to them than have any losses (and vice versa for the conservatives). I would say that if conservatives could reverse the course of the Court's decisions since Savage's "Turning Right" was published, reversing the Gitmo cases, Lawrence, Grutter, Dickerson, Casey, etc., they would, even at the expense of some of their more treasured "wins."

Posted by: Matt | Sep 17, 2007 11:12:29 AM

Whoops. I meant to start my 11:12 post with "Matt:", but I accidentally typed it into the Name field instead. That post was by my, obviously.

Posted by: Adam | Sep 17, 2007 12:00:10 PM

Matt Lister says: "I'd respectfully submit that you'd not think that "nothing happen[ed]" at the Supreme Court in the last several years if you were, say, a woman in need of an abortion, a criminal defendant . . . ."

1. Shouldn't that be "woman professing to be in need of a partial-birth abortion but not so much that her life is endangered and not so much that any doctor would have ever thought to bring an as-applied challenge regarding that heretofore-unknown condition"? That is, unless you know of some other conservative S.Ct. decision that involved abortion.

2. Orin Kerr would know much more about this than I, but what's the basis for your claim that the Supreme Court has shifted to the right as to "criminal defendant[s]" in the past few years? Do the decisions you have in mind collectively outweigh Apprendi/Booker/Blakely, and Kyllo, and Crawford v. Washington (FYI, pay attention to how Scalia and Thomas tend to vote in such cases)?

Posted by: Stuart Buck | Sep 17, 2007 2:28:10 PM


I am most curious: How is it that you escaped the limitations that so blind me from recognizing how much the law has changed? Given your reasoning, can I assume that you are not only 1) a woman in need of an abortion, but also 2) a criminal defendant, and at the same time 3) a minority having trouble being fairly represented in congress or applying to college?


You raise one of my favorite one-way ratchet arguments. When the country becomes more liberal on an issue, the argument runs, a Supreme Court decision moving the law to the left isn't actually liberal: it simply is moderate, as it matches the law to changing public preferences. Curiously, I have never heard this argument used when the country becomes more conservative on an issue. Public opinion often shifts to the right; in many ways the public is much more conservative than in the late 1970s. Do you think the law must turn to the right just to be moderate when public opinion shifts to the right, and that such a turn isn't actually conservative?

Posted by: Orin Kerr | Sep 17, 2007 2:37:57 PM

Professor Kerr,

In short, Yes (that the law must turn to the right when public opinion shifts that way (and, by "must" i mean *will* given the political realities of the way justices are confirmed)) and No (that a such a turn isn't actually conservative).

I say no because, while I understand your "relative baseline argument" (my label, sorry if it's no good) that turns, left or right, are relative to the state of the law previously, I think that using that rubric prevents us from being able to talk about the Court as a political institution as profitably as we could.

For example, I think that we need to be able to say that the Court is now a moderately conservative court, and has been since the 90s, and that this is reflective of era of (more) conservative government. Compare: what if the Scalia/Thomas jurisprudence were the state of the law. Then we would have to say that the Court was an extremely conservative court. However, the country, for better or worse, isn't that conservative. So would the relative baseline rubric (or whatever you'd like to call it) just say that that turn isn't really actually conservative? I wonder if what's at work here is a resistance to politicized conception of the law/SCOTUS ???? Thoughts?

Posted by: Calvin TerBeek | Sep 17, 2007 3:34:23 PM

Criminal defendants have it much worse pre-trial, but things are somewhat better during trial. I don't think Orin would argue that the law of search and seizure has not moved to the "right" over the past two or three decades. Since we're (properly) devaluing rhetoric and valuing examples:

* the creation of the good faith exception to the exclusionary rule;
* the numerous cases that create an almost irrebuttable presumption that the good faith exception applies;
* the road side/sobriety checkpoint stop cases;
* the illogical definition of "seizure" (if you're on a bus and cops are blocking both exits, you are nonetheless free to leave!);
* the cabined definition of "in custody" for purposes of Miranda;
* trial tax, whereby a person can face times or more punishment for exercising his right to trial, is constitutional, because said exponentially greater sentence isn't really a penalty.

And, of course, you have gems like Atwater v. Lago Vista (of course it's reasonable to seize someone for not wearing a safety belt, even when state law does not provide for jail time for such infractions) and Hope to Pelzer (dissenters wanted to hold that chaining a man to a hitching post and denying him water for several hours is constitutional; or, if not, no reasonable officer could have known that such conduct was unconstitutional). Admittedly, Roberts and Alito did not join in these opinions. But I assume when we talk about a move to the right, we are talking about the Court qua Court.

I would encourage anyone who does not notice a trend to the right in search-and-seizure cases to cite lines of cases supporting that argument.

Of course, the Confrontation Clause cases stand somewhat in contrast. Still, conservatives, for whatever reason, tend to view rape and molestation cases with suspicion (as I do, but for different reasons, I imagine). So the CC cases are still very "conservative." Of course, liberal critics are still left with the Blakely cases, as well as the recent choice-of-counsel case. I suppose the rejoinder would be: "Conservatives like/worship/serve the rich. Thus, the choice of counsel case ensures that Scalia's rich friends will be able to hire top lawyers to trick the lay people into setting them free!" But that's not at all satisfactory to me. So even critics like me are left wondering why there are a couple of lines of cases supporting accused criminals. I suppose even the Devil has a good day. ;-)

In fairness, of course, the modern Court as a whole is very conservative on law and order issues. Stevens is no Brennan. Breyer is no Marshall. And the country as a whole doesn't really care about people charged with crimes - except rape cases involving white males, which causes people on the Fox Channel to side with accused criminals! See, also, William Kennedy Smith. Of course, even the "scary looking black man," Mike Tyson had his supporters on the Right. So there is something interesting going on with conservatives and sex crimes. But that's a whole different issue.

Anyhow, if the country is shifting to the Right, and if we want the Court to remain consistent with the country's values (there is much talk of the Court not being "mainstream," where "mainstream" is defined as some supposedly held popular values), then we, to be intellectually consistent, would have to welcome this Shift to the Right.

Posted by: Mike | Sep 17, 2007 3:35:02 PM

Mike, thank you for making substantive arguments. You're definitely right that Miranda protections have been watered down over time after their creation in 1966.

The Fourth Amendment is a really interesting case. On one hand, the Fourth Amendment generally has been weakened somewhat following the Warren Court expansions. The basic framework created by the Warren Court has remained in place, but the Burger and Rehnquist courts took a broader view of exceptions to these doctrines than the Warren Court eras probably would have produced. On the other hand, consider that one of the most pro-law enforcement Fourth Amendment decisions on the books is Terry v. Ohio, written by Chief Justice Warren with substantial input from Justice Brennan. Like a lot of the post-Warren court Fourth Amendment changes, Terry was sort of fall out from Mapp: Mapp made the Court consider questions it had never had to consider in a pre-Mapp world, in this case how the 4A applies to street encounters. In Terry, the court wasn't so much "changing" the law as reaching an issue it had never had to reach that had become important thanks to Mapp. So it's interesting to ponder how many of the later cases would have been treated by Warren Court like Terry if they had come up in the post-Mapp, pre-Burger Court window.

Posted by: Orin Kerr | Sep 17, 2007 3:59:28 PM

After reading both "Closed Chambers" by Edward Lazarus and "The Nine" by Jeffrey Toobin, I discovered that apparently Supreme Court clerks push each other into fountains every ten years...In "Closed Chambers" Lazarus noted that in 1989 two clerks "traded taunts and epithets before graduating to shoves and swings that drove them into the courtyard fountain." ("Closed Chambers," pg. 419). In "The Nine" Toobin notes, "In 1999-2000, the term before the election, everyone got along pretty well, though there was one notorious incident when a clerk pushed another into one of the Court's fountains." ("The Nine," pg. 156).

Posted by: Kent Young | Sep 30, 2007 12:35:14 AM

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