Justice on the Couch

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William Rehnquist “was a brutal editor, stripping his clerks’ words down to the essentials, taking out what he called, with some contempt, ‘the reasoning,'” Jeffrey Toobin writes in “The Nine: Inside the Secret World of the Supreme Court” (Doubleday, 384 pages, $27.95).

Did Chief Justice William Rehnquist really have contempt for reasoning when he decided cases? Even if he said it in a contemptuous tone, perhaps he was mocking a clerk’s overcautious demonstration of authority and suggesting that the more you write, the more readers skip past as they head for the meat of an opinion.

But Mr. Toobin’s juicy nugget about Rehnquist keeps you reading. Such a little quote with such big implications. This book has lots of details that seem to lay open the minds of the justices. Clarence Thomas makes his law clerks watch the movie “The Fountainhead.” He was obsessed with his black Corvette and had his chair adjusted so he could to lean way back. David Souter eats an apple — seeds and all — for lunch every day, and avoids all speaking engagements, saying “I need some period of the year when I can make a close approach to solitude.”

Sandra Day O’Connor has thrown some oddball parties, like one where the men wore top hats and tails along with white shorts and tennis shoes. For Halloween, she made her clerks decorate news-themed pumpkins. Mr. Toobin seems to think it’s cute that in 2001, they made “Osama Bin Pumpkin.”

It’s a good read, but Mr. Toobin —à la Rehnquist — is stripping the reasoning out of his book.

It may well be that judicial intuition and ideology have more effect on the cases than do the arguments based on precedent and statutory and constitutional texts, but “The Nine” doesn’t put the reader in any position to reach a fair conclusion about that. Mr. Toobin spares us any tedious development of the legal issues and arguments as he dishes up the lively, impressionistic quotes and images that suggest decisions are a very personal expression of the nine individuals who sit on the Court. It’s just one big psychodrama — a psychodrama in which some justices — notably Justice Souter and John Paul Stevens —maintain an emotional commitment to the preservation of legal principles while others — Justice Thomas and Antonin Scalia — feel the pull of political conservatism. Others — Justice O’Connor and Stephen Breyer — seem instinctively to know what will work well, and one — Anthony Kennedy — is infatuated with law as “poetry.”

You’d never know from reading the book there was a complicated federal statute that affected how the Florida Supreme Court decided Bush v. Gore. The constitutional law in that case? There was “an obscure provision of Article II.” The crucial constitutional precedent interpreting Article II? A “nearly incomprehensible opinion of the Court from 1892.” With these descriptions, Mr. Toobin expresses contempt for the reasoning. His approach asks the reader to accept the view that legal methodology doesn’t matter much.

Instead, human individuals drive the law, as Mr. Toobin tells it. The story of Jay Sekulow, “a nice Jewish boy from Brooklyn” whose “ignorance” was “his best weapon,” swells the 12-page chapter on the Supreme Court’s religion cases, but there isn’t a word about the Rehnquist Court’s most important Free Exercise case, Employment Division v. Smith. Smith, written by the conservative Justice Scalia, said religion was not entitled to special exceptions from generally applicable laws. (You can’t avoid the Controlled Substances Act, for example, by saying you need to use peyote in a religious rite.)

Smith doesn’t fit the theory that the conservatives are out to favor religion or the proposition that the religion cases “usually come down simply to ‘What will Sandra do?'” Justice O’Connor opposed the doctrinal shift in Smith, as did the three most liberal justices: William Brennan, Thurgood Marshall, and Harry Blackmun. It was a liberal tenet that the Free Exercise Clause relieves religious practitioners from requirements the law imposes on everyone else. To bring up Smith would require Mr. Toobin to acknowledge that conservatives favor equality and liberals want to favor religion and that would mess up the narrative arc of his story.

John Roberts and Samuel Alito don’t appear on the scene until late in these pages, and most of the material is about the appointment process. Mr. Toobin concludes that conservatives have figured out how to get what they want from their nominees. After showing us how the Rehnquist Court failed to achieve a conservative “revolution,” he surveys the early work of the Roberts Court and sees revolution breaking out everywhere. Of course, there were points along the way in the Rehnquist years when observers thought that conservative ideology had taken hold. It didn’t happen.

Mr. Toobin ends his story with a climactic scene, vividly written to show the long-dreaded “conservative onslaught” hitting at last. It’s June 28, 2007, and the liberal justices have lost the important case about school integration in Louisville and Seattle. Mr. Toobin works with the only evidence of judicial emotion he has: the faces of the nine justices visible above the bench.

Ruth Bader Ginsburg is staring “in evident fury straight ahead of her.” So, she’s sitting there with her eyes open? But Mr. Toobin concludes, “The term had been a disaster, and she had no intention of pretending otherwise.” Justice Scalia seems to have moved his eyebrows: Toobin has his eyebrows “dancing in satisfaction.” Justice Breyer’s “sunny disposition” had “darkened.” He had a dissenting opinion to read. What did it say? You will have to look elsewhere if you want that legal analysis. All you need to know to understand things, apparently, is that Justice Breyer’s opinion was lengthy and that he announced it with “such passion.”

And then Justice Alito “roused himself and stared across the bench at Breyer.” Heavens! So, Breyer was reading, and Justice Alito looked at him. And then — oh, my! — a muscle in Justice Roberts’s face twitched. And that “face was as unlined as when he’d carried Rehnquist’s casket.”

“It was his Court, and everyone knew it.”

You will know it too, if you can swallow this argument by impressionistic psychodrama.

Ms. Althouse is a professor at the University of Wisconsin Law School (visiting this year at Brooklyn Law School) and a blogger at http://althouse.blogspot.com/.


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