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.

Raich, that's the case in which the plaintiff must have marijuana on account of various physical conditions, including a brain tumor, multiple sclerosis, fibromyalgia, multiple chemical sensitivities, wasting syndrome, and more, but a look at the medical records that have been proffered make very clear psychiatric problems greatly overshadow whatever physical problems the lady may in fact have, and those physical problems neither threaten her life, nor are of the sort to account for severe, enduring pain of the sort she claims to suffer, and undoubtedly believes she suffers.

As her attorney has pointed out, and I fully agree, little if any of the above is immediately pertinent to the legal issues taken up on appeal. I do think it unfortunate, however, that this plaintiff is so poor a standard bearer for the cause. Those who worry that there will be no effective controls on the medical use of marijuana if anyone with MD or DO after their names, and perhaps others, is allowed to prescribe marijuana, can support their argument with Ms. Raich. (see the recent episode of Entourage in which Drama and Turtle go to Bob Baliban to get killer medical marijuana and the cap? Right, fictional, and a parody at that, but not a pure flight of fantasy, as the Raich case will attest.)

Ms. Raich's well-meaning family physician in Berkley, where he was voted doctor of the year, does not know of what he speaks. The UCSF physicians, in particular the neurologists there who worked her up for "seizures" which proved to be "pseuoseizures" and those who assessed her for the meningioma that is sitting quietly at the base of her skull, where it is causing no signs or symptoms, do know of what they speak, but what they have said is inconvenient to the plaintiff's case. Again, bad facts can make for bad law, so why go forward with bad facts?

OK, the medical bit is my contribution here, and I will leave it to those like EV and plaintiff's counsel RB, far, far more knowledgeable than I about the relevant law, to opine about the law.
9.21.2007 2:26pm
David Huberman (mail):
I'm only 100 or so pages into it, but I am really unhappy with the lack of respect Toobin shows for Justice Thomas. The book is beginning to feel very biased, as if written by a staunch liberal.
9.21.2007 2:27pm
I'm also reading the book, and so far it is disappointing in several ways; I hope to have a blog post up on it next week.

9.21.2007 2:32pm
Once again I have to laugh that the books editor of the newspaper of record, Michiko Kakutani, assigned herself to review this book. God forbid that the NYT should hire a constitutional law expert.
9.21.2007 2:55pm
I look forward to Orin's review. And I promise not to take the author's disdain for Justice Thomas's jurisprudence of convenience as evidence that the book is also accurate on other matters.
9.21.2007 2:59pm
Minnesota Reader:

The New York Times occasionally publishes 2 book reviews. One in the Arts section of the newspaper during the week and the second in the Book Review section on Sundays. Michiko Kakutani is often the author of weekday reviews, while non NY Times staff review in the Book Review section. Hold out to see who is going to do the Sunday review.
9.21.2007 4:24pm
Kent Scheidegger (mail) (www):
"In 2002, the Court said judges alone, without the concurrence of jurors, could not impose death sentences...."

That is not an accurate description of Ring. Once a jury has found that a defendant has committed an offense eligible for the death penalty, the state may still vest the actual sentence choice in the judge alone. Ring held that the "offense" for this purpose would be defined functionally, rather according to the state's definition of what is an element and what is a sentencing factor.

See also the Los Angeles Times review.
9.21.2007 4:51pm
Mac (mail):
This from the Wall Street Journal.

Times book critic Michiko Kakutani has another gem of a review today, this one of Jeffrey Toobin's new book, "The Nine: Inside the Secret World of the Supreme Court":

Mr. Toobin--a former assistant United States attorney who is now a staff writer at The New Yorker and senior legal analyst at CNN--uses his familiarity with the law not to deliver a partisan brief (as he did with "A Vast Conspiracy," his ham-handed 2000 book on the Clinton scandals) but to illuminate the dynamics of the Supreme Court and to situate key decisions made by the court within a political, social and historical context.

But then comes this:

The story of Justice O'Connor, who helped tip the Bush v. Gore case in favor of President Bush and whose 2005 decision to retire (to spend more time with her ailing husband) would give the president a crucial seat to fill, is in many ways Shakespearean. Mr. Toobin writes that "the hiring of John Ashcroft, the politicized response to the affirmative action case, the lawless approach to the war on terror, and the accelerating disaster of the war in Iraq all appalled O'Connor." He says she regarded the Terry Schiavo case as "the latest outrage from the extremists who she believed had hijacked her beloved Republican Party" and adds that she was deeply distressed over the administration's efforts to undermine judicial independence.

It's a good thing Kakutani told us that Toobin's book is not "a partisan brief," because her description of the book's contents could easily have led us to think otherwise.
9.21.2007 8:10pm
Add this to the list of factual errors:

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.

The free speech clause was incorporated by Gitlow v. New York in 1925, free press by Near v. Minnesota in 1931, freedom of assembly by DeJonge v. Oregon in 1937, free exercise by Cantwell v. Connecticut in 1940. The petition clause has never been specifically incorporated. The only clause incorporated after WWII was the establishment clause in 1947. What series of cases is he talking about?
9.21.2007 8:43pm
Not on the Justices' respective positions <i>Raich</i>, but on the controversy surrounding the medical use of marijuana...

How many saw the <i>60 Minute</i> piece with Morely Safer last night (9/23) which looked at what has happened with the medical marijuana scene in California since they passed that proposition allowing it for just about everything, so long as a doctor is willing to prescribe it, and there is no shortage of them willing to, even for such things as sore feet. I thought the segment on <i>Entourage</i> in which Drama and Turtle are after the cool cap that one marijuana shop sells to its clients and some killer weed in the bargain was funny, but well over the top. It seems that it wasn't over the top at all, it was the scene as it is there, just from a comedic perspective.

The facts in <i>Raich</i> appear very consistent with what was portrayed on <i>60 Minutes</i>, and were I the attorney representing Ms. Raich, I would not want any judge hearing her case to see that program or the <i>Entourage</i> segment.

If Supreme Court judges as aware of how the nation votes, as they are said to be, is it so improbable that they watch
television? And though their focus is supposed to be on the legal issues raised, not the instant facts, the case file includes does it not medical reports which purport to support Ms. Raich's need for marijuana to save her life and/or spare her otherwise unavoidable suffering. If a judge were wavering on how to come down on the law, might not their thinking be affected by what in fact is going on in California (presuming the <i>60 Minute</i> piece was not wildly misrepresentative) and Ms. Raich's own medical condition?

Sorry, not trying to hijack this thread. But since some attention is being given to <i>Raich</i>, I think the facts of that case warrant some attention, even if the Supremes and other appellate courts only have to decide the law.
9.24.2007 2:36pm

If you're interested in the facts of Raich, you should also look at the other respondent, Diane Monson. If I recall, she had some sort of spinal condition. I'm not a doctor, but her medical claim seemed more legitimate. It was also a better legal claim because she grew her own pot, rather than buying off the black market.

I'm not sure how the medical facts were relevant to the legal issue though. I doubt they did much to color the justices' views either. The justices in the majority didn't appear hostile to medical marijuana; they were concerned with the impact the case might have on other federal programs under the commerce clause. Such hostility may have motivated Scalia's concurrence -- it was a complete departure from his normal jurisprudence -- but since the case ended up 6 to 3 his support wouldn't have made a difference.
9.24.2007 4:21pm
Huberman has a good point. I have not bought the book but did hear the author interviewed on NPR. My goodness, he was so full of himself and so entirely smug in his pinko-ness. He dismissed Justice Thomas as a crank because, you know, Thomas doesn't embrace post-FDR pro-government thinking. How rude. Toobin is the crank.
9.24.2007 5:35pm