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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 [1] the move to the left that characterized her jurisprudence and [2] thus [3] 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 — [4] a last gasp of liberalism before a likely surge to the right. At the end of his tenure, [5] 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.

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