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Toobin on Chief Justice Roberts:

I have finally had the chance to read Jeffrey Toobin's recent New Yorker profile of Chief Justice Roberts. (Ah, the joys of flight delays.) The premise of the article, "No More Mr. Nice Guy," is that Chief Justice Roberts was a "stealth" nominee who is only now showing his true colors. As with all Toobin articles, it is well written, engaging, and filled with interesting tidbits. Like much of what Toobin writes about the Court, it is also infected with a subtle spin that results in a distorted picture of the Chief Justice and the Court.

My full take on Toobin's piece, after the jump.

levisbaby:

Like much of what Toobin writes about the Court, it is also infected with a subtle spin that results in a distorted picture of the Chief Justice and the Court.

Thank you for you unbiased, spin-free analysis.
6.3.2009 12:10pm
Volokh Groupie:
@levisbaby
What exactly in Adler's post did you see as spinning? He freely admitted Roberts was a conservative but objected to the 'stealth' premise.

Nice name by the way--really helps us understand you when you opine on the loss of civility in comments.
6.3.2009 12:20pm
einhverfr (mail) (www):
See but the Wisconsin Right to Life doesn't count because it was the right wing interests that won that case! [/sarcasm]

I think that Toobin's article more or less amounts to a common fallacy that what matters is WHO won the appeals to the Supreme Court, rather than WHY......

In reality, I think that Roberts has been very modest. I think he was wrong regarding Kennedy v. Louisiana, but to say he has always deferred to existing power relationships is quite disingenuous. Between Heller and O Centro.......
6.3.2009 12:21pm
Goliath of Gath:
I only object to the "subtle" part. I think Toobin's spin is obvious.
6.3.2009 12:26pm
srg2 (mail):
Toobin's entire book "The Nine," while entertaining, was unreliable because of its spin.
6.3.2009 12:37pm
Toobin Doubter:
The bias in the article reminds me of my impression of Toobin after reading his puff piece on Prof. Laurence Tribe in 1996 (see here) in which Toobin failed to mention something that few readers would know: that while in law school Toobin was one of Tribe's chief research assistants (as mentioned in the preface to Tribe's treatise).

Is it fair to say that journalistic ethics require that if one does a puff piece on a public figure one has earlier worked for, it should be disclosed? But then again, I guess Toobin's less of a journalist, more of a liberal hack.
6.3.2009 12:42pm
martinned (mail) (www):
I actually thought the most interesting thing in Toobin's article was the way he described the Chief's isolated life, particularly given the recent discussion about empathy in the courts:


Congress, however, snubbed the Chief Justice. Six-figure salaries, lifetime tenure, and the opportunity to retire at full pay did not look inadequate to the elected officials, who make the same amount as judges and must face ordinary voters. Roberts's blindness on the issue may owe something to his having inhabited a rarefied corner of Washington for the past three decades.
(...)
In one respect, Roberts's series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions. During the heart of his career, Roberts's circle of professional peers consisted entirely of other wealthy and accomplished lawyers. In this world, a hundred and sixty-nine thousand dollars a year might well look like an unconscionably low wage.
6.3.2009 1:00pm
Edward Lunny (mail):
Apparently I have been sorely misinformed about the workings of courts in the United States, in particular the Supreme Court. I wasn't aware, for instance, that there were percentages of rulings that predetermined to favor the prosecution over the defendent, the individuel over the government, or consumers over a business. Foolishly, I thought that the justices would look at the relevant law ,it's proper applicabilty, and render a judgement. If ,as Mr. Toobin appears to assert, there are relevent ratios as to how a decision is rendered the court begins to sound very much like a lottery. Who knew ! I am glad that this was pointed out to a lay person so that I can properly understand. One would think that Mr. Toobin or an editor would have questioned this position prior to publication.
6.3.2009 1:04pm
martinned (mail) (www):
O, and by the way, where in 15 USC 1 does it say that only contracts that harm consumer welfare count? The word "collusion" appears nowhere in the statute. I agree that it is not unreasonable to imply such a requirement in the text, but even then a rule of reason does not become inevitable. Rather, whether to apply a rule of reason to a certain situation or a per se rule depends on one assessment of the relative likelihood and relative cost of type I and type II errors, not to mention the difference in total litigation costs. A rule of reason approach increases overall litigation costs, and it increases the likelihood of not finding a violation while there is one, while decreasing the likelihood of finding a violation while there isn't one. (I always get confused about which of these is a Type I error.) Some behaviors are sufficiently likely to be welfare decreasing that a per se rule is appropriate even though welfare enhancing cases are imaginable.

Long story short: I don't think Toobin's characterisation of Leegin was wrong.
6.3.2009 1:08pm
keypusher64 (mail):
In this world, a hundred and sixty-nine thousand dollars a year might well look like an unconscionably low wage.

This was a low point in Toobin's article. The problem with $169,000 is that the class from which judges are drawn (which consists largely of well-compensated lawyers) makes a lot more money (or did, until very recently). So it becomes more difficult to recruit and retain intelligent judges.

Toobin makes his living writing about appellate courts, so of course he knows this. Rehnquist made similar appeals to Congress for more money for federal judges for years. If Roberts dies tomorrow, you will hear the exact same appeal for more money from Chief Justice Sotomayor. Toobin knows this too. But he still chose to spin Roberts' statement as a sign of how elite and out of touch he is.

So, you got spun, martinned. Only you can say whether it was just because you wanted to be spun.
6.3.2009 1:16pm
PLR:
As a reader, I find subtle spin much more entertaining than the obvious spin.

But I'd still like to see a VC topic about whether the Supreme Court should have yet another Catholic on it.
6.3.2009 1:17pm
martinned (mail) (www):
@keypusher64: I didn't mean to comment on whether or not the Justices' salary claim was justified. (I think the prestige of the job is such that most top lawyers would do it for free, and quite a few might be willing to hack of a limb for a seat on the Court.) I meant to point out the description of the relatively isolated life the Chief has lead, especially when contrasted with the life story of Judge Sotomayor (Jon Stewart: "Did Oprah focus group a justice???"). I thought this section of the article was food for thought, which is why I already quoted it once before in a thread about Sotomayor and empathy.
6.3.2009 1:19pm
dmv (www):

Foolishly, I thought that the justices would look at the relevant law, it's proper applicabilty, and render a judgement.

All due respect, but that is pretty foolish. Or at least a naive view of what courts are actually doing, as opposed to what they "should" be doing.
6.3.2009 1:20pm
keypusher64 (mail):
O, and by the way, where in 15 USC 1 does it say that only contracts that harm consumer welfare count? The word "collusion" appears nowhere in the statute.

Plumping for "plain meaning" jurisprudence of the Sherman Act, martinned? Since even in the 1890s everyone knew that was a non-starter, I can only conclude that you're just amusing yourself in this thread. I had better get back to paying work.
6.3.2009 1:21pm
martinned (mail) (www):
@Keypusher64: No, plumping a common law approach where there is room for per se rules with regard to certain behaviors, and where a precedent that is almost a century old does not get overruled very easily.
6.3.2009 1:23pm
Guest101:
"The problem with $169,000 is that the class from which judges are drawn (which consists largely of well-compensated lawyers) makes a lot more money (or did, until very recently). So it becomes more difficult to recruit and retain intelligent judges. "

How is that not exactly what Toobin said?
6.3.2009 1:24pm
scosm:
Toobin noted the special importance of standing to Roberts. In fact, according to the article, Roberts argued Lujan as a deputy solicitor general: "One case that Roberts argued during his tenure in the Solicitor General's office in George H. W. Bush's Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him."
6.3.2009 1:30pm
PatHMV (mail) (www):
Some of those Senators DID vote against Roberts twice, Jonathon. First they voted to filibuster the nomination, then, when that failed, they voted against the nomination itself.
6.3.2009 1:34pm
Guest for today only:
Please don't defend Leegin by saying that you can construct a way in which Toobin was right. He clearly missed the essence of the case, which wasn't about "proving" collusion but was instead about whether a certain type of economic arrangement, even if shown to exist, is unlawful. You can debate whether they should have overruled it, etc., but this was not a case where they were deciding whether conscious parallel conduct is sufficient, etc., where the existence of a conspiracy was at issue. It was a case about the effect of the combination and its legal ramifications. For someone like Toobin, that is a bad miss.
6.3.2009 1:35pm
martinned (mail) (www):
@guest for today only: Toobin wrote "That same day, the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations." That's it, one line.

Is it how I would have put it? No. But it is correct in the sense that the Court now requires additional facts to be proved, in addition to the proof of an actual vertical price maintenance.

The way prof. Adler wrote it up suggests that per se rules are somehow contrary to the Sherman act, "outliers" that need to be cleaned up. That is as much of a mischaracterisation of the law as Toobin's one sentence.
6.3.2009 1:41pm
Guest82 (mail):
Toobin Doubter said:

Is it fair to say that journalistic ethics require that if one does a puff piece on a public figure one has earlier worked for, it should be disclosed? But then again, I guess Toobin's less of a journalist, more of a liberal hack.


Thanks for the link to the article. You might have noticed page 44:

"In 1985, I took Tribe's constitutional-law course at Harvard and then worked briefly for him as a research assistant."
6.3.2009 1:47pm
levisbaby:
blinks
6.3.2009 1:53pm
BerkeleyBeetle:
It seems that the two examples he leads with refute his own view of Roberts deferring to "the existing power relationships in society." He's siding with a state government over the federal government, and individuals over a government agency. I suppose Toobin is arguing that he is deferring to the existing power relationship of white over black, but that's just a reminder of how silly it is to try to paint "existing power relationships" so one-dimensionally.
6.3.2009 2:25pm
wva (mail):
Johnathan Adler suggested that-
"[It [the Toobin New Yorker piece] is also infected with a subtle spin that results in a distorted picture of the Chief Justice and the Court."
As one of the respondents has already noticed, I would agree that there was little that was "subtle," and a very great deal that was "distorted," as tends too generally to characterize Jeffrey Toobin's profiles on various judge and nominees.
6.3.2009 2:37pm
Force Majeure:

Toobin's entire book "The Nine," while entertaining, was unreliable because of its spin.

I read the book shortly after reading Jan Crawford Greenburg's book on the same subject. While Toobin's book was interesting and informative, as was Greenburg's, if I had to recommend one over the other it would be Greenburg's. Hers presented the information in an objective, "reportorial" manner, while Toobin's was laced with his editorializing. Even if I agreed with Toobin's point of view, I would have found the editorializing a distraction.
6.3.2009 3:18pm
martinned (mail) (www):

I read the book shortly after reading Jan Crawford Greenburg's book on the same subject. While Toobin's book was interesting and informative, as was Greenburg's, if I had to recommend one over the other it would be Greenburg's. Hers presented the information in an objective, "reportorial" manner, while Toobin's was laced with his editorializing. Even if I agreed with Toobin's point of view, I would have found the editorializing a distraction.

Good to know. I have them both here in a yet-to-read stack somewhere. So far I've only read The Brethren.
6.3.2009 3:39pm
Angus:
Re: Toobin vs. Greenburg. I suspect such a recommendation might come down to one's ideological leanings. Toobin's definitely comes at things from the left, but Greenburg just as strongly comes at things from the right.
6.3.2009 3:47pm
The Unbeliever:
It is also not true that "in every major case" Roberts has sided with "existing power relationships."
Ok, and I think your counterexamples make your case, but shouldn't there be an objection to the idea that deliberately attempting to alter "existing power relationships" is a self-evident, self-justifying positive endeavor?

There are certainly cases where justice demands such interference, but why is there an implicit assumption the majority of cases trigger this need? For example:
Roberts has sided with... the executive branch over the legislative
I know, BUSH BAD and all, but is Toobin saying it would be better for whatever reason to give legislatures more power than they already have in relation to the executive? Why? If the Founders set up an "existing power relationship" between the branches as an intentional system of checks and balances, then why should there be an imperative to break those relationships--in fact, I'd argue there should be an imperative to preserve existing power relationships.

It might be revealing to ask Toobin which institutions, existing power relationships, and status quo's he does see worthy of actively preserving.
6.3.2009 4:04pm
idgaf:
Toobin citing Winter v NRDC as a 5-4 decision is disingenuous considering that Stevens concurred in the judgment and Breyer agreed with most of the majority's reasoning. But why let the facts get in the way of a good smear?
6.3.2009 4:18pm
paul lukasiak (mail):
his was a low point in Toobin's article. The problem with $169,000 is that the class from which judges are drawn (which consists largely of well-compensated lawyers) makes a lot more money (or did, until very recently).

while it may be true that $169K isn't a lot of money for the kind of lawyers that Republicans like to nominate for the federal bench (i.e. GOP greedhead ideologues like Roberts who took advantage of the revolving door between corporate law and Republican administrations), the same cannot be said for the kind of lawyers Democrats prefer to see on the bench (those who practice "public service" law, civil rights law, and academics).

The solution isn't more money for judges, its more Democratic presidents, and more judges who became lawyers not to become rich, but to provide justice.
6.3.2009 4:41pm
Edward Lunny (mail):
"All due respect, but that is pretty foolish. Or at least a naive view of what courts are actually doing, as opposed to what they "should" be doing."...I should have noted that my comment was couched in a certain amount of sarcasm. That being said, the comment likely accurately describes the opinion of most Americans.
6.3.2009 4:45pm
ruuffles (mail) (www):

while it may be true that $169K isn't a lot of money for the kind of lawyers that Republicans like to nominate for the federal bench (i.e. GOP greedhead ideologues like Roberts who took advantage of the revolving door between corporate law and Republican administrations), the same cannot be said for the kind of lawyers Democrats prefer to see on the bench (those who practice "public service" law, civil rights law, and academics).

This explains why conservatives like Luttig and McConnell resigned, whereas liberals have not.
6.3.2009 4:50pm
Floridan:
I do question JA's use of the word "spin," which connotes that Toobin was being deceitful in his article.

Since there is little evidence that Toobin did not write what he thought, wouldn't it be better to characterize certain aspects of his article as either "factually wrong" or open to other interpretations?
6.3.2009 5:06pm
JonC:

Re: Toobin vs. Greenburg. I suspect such a recommendation might come down to one's ideological leanings. Toobin's definitely comes at things from the left, but Greenburg just as strongly comes at things from the right.


Can you find an example of Greenburg writing anything as critical of the "liberal" Justices as Toobin's writing about C.J. Roberts?
6.3.2009 5:26pm
JonC:

This explains why conservatives like Luttig and McConnell resigned, whereas liberals have not.


Souter doesn't count as a liberal, or a Republican appointee?
6.3.2009 5:28pm
Calderon:
On the judicial pay issue, I'm not so sure without some statistics one can simply assume that judges are pulled from big firm law partnerships where $169k would be considered unconscionably low pay. Many judges (including those appointed by Republicans) come from government positions, including having been prosecutors, where judicial salaries are either in line or higher than their prior jobs. One would think somewhere there are actual statistics on what judges did before they became judges. Needless to say, I also don't think you can draw conclusions from an entire 2 judges deciding to leave their jobs.

On the other hand, it would be great if we could have data on the first choices for judgeships, to see if there are big firm attorneys turning down those opportunities for pay or other reasons, but such statistics would be more or less impossible to collect.
6.3.2009 5:44pm
mariner:
Isn't Toobin one of those "journalists" who for years told us that Clarence Thomas was basically Antonin Scalia's lackey?
6.3.2009 6:36pm
Force Majeure:

Re: Toobin vs. Greenburg. I suspect such a recommendation might come down to one's ideological leanings. Toobin's definitely comes at things from the left, but Greenburg just as strongly comes at things from the right.

I understand what you're saying. For years, liberals have, in good faith, told me that they saw no bias in the coverage of the NY Times, Wash. Post, CBS, MSNBC, et al. I'll acknowledge that, coming from the other side, I might overlook what liberals see as having a right-lean. But with respect to the Greenburg book, I simply can't remember anything comparable to the slanted characterizations in Toobin's book.
6.3.2009 6:51pm
Splunge:
Consider that Toobin and his ilk are preparing the ground for a more openly liberal appointee to the Court, on the grounds of compensating for a "twice as conservative as we thought" Chief Justice.
6.3.2009 7:24pm
Toobin Doubter:
At 12:42 p.m. I commented:

The bias in the article reminds me of my impression of Toobin after reading his puff piece on Prof. Laurence Tribe in 1996 (see here) in which Toobin failed to mention something that few readers would know: that while in law school Toobin was one of Tribe's chief research assistants (as mentioned in the preface to Tribe's treatise).

Is it fair to say that journalistic ethics require that if one does a puff piece on a public figure one has earlier worked for, it should be disclosed? But then again, I guess Toobin's less of a journalist, more of a liberal hack.

At 1:47 p.m., Guest82 (who, I suppose, might well be Toobin) responded:

Thanks for the link to the article. You might have noticed page 44:

"In 1985, I took Tribe's constitutional-law course at Harvard and then worked briefly for him as a research assistant."

I stand by my comment: in his puff piece on Tribe, Toobin failed to mention that in law school he was one of Tribe's CHIEF RESEARCH ASSISTANTS. The ethical problem with Toobin's article is that Toobin tried to minimize his connection with Tribe by saying he worked only "briefly" for Tribe. In fact, according to Tribe, Toobin's work was "extensive." Footnote 1 of Tribe's preface to the 1988 edition of his treatise thanks 33 research assistants who helped on the treatise. Toobin is one of only 10 who is thanked for "expecially extensive work." Here's the relevant language (from page xii of the 2000 edition, which reprints the 1988 preface):

"To all of these talented individuals [i.e., the total of 33] go my sincere thanks. And I want to single out for special appreciation, for work especially well done, and for help above and beyond the call of duty, a few of those named above: . . . Jeffrey Toobin (for work on Chapter 5 and especially extensive work on Chapter 12)."

I suppose one could say that Toobin did not literally lie, in that in theory Toobin could have "briefly" (relative to his total lifespan) worked for Tribe while still packing so much work into the period that it qualified as "especially extensive" (e.g., by working 16 hours a day for 30 days straight). But Toobin's clear implication was he'd only done a minor amount of work for Tribe, which is clearly false if one credits Tribe's preface.

It seems Toobin was one of apparently less than a dozen (judging from Tribe's preface) students who were talented enough writers that they did ghostwriting for Tribe (a practice which was documented by the Weekly Standard, which reported awhile back that Tribe apparently had much of a book ghostwritten for him by Ron Klain while Klain was a first-year law student, see here and here). (To the best of my knowledge, in the nearly 5 years since the Weekly Standard article came out, Tribe hasn't publicly denied that Klain ghostwrote much of that book for him, nor has he denied that he's used numerous ghostwriters; if anyone has any information to the contrary, please post it.)

If Toobin indeed did "especially extensive" ghostwriting for Tribe, presumably he was later rewarded with a glowing recommendation which helped his professional advancement. None of this is even hinted at by Toobin in his puff piece on Tribe; instead, Toobin affirmatively worked to minimize his strong connection to Tribe. So I stand by my initial suggestion that Toobin's puff piece on Tribe presents serious journalist ethics issues.
6.3.2009 7:39pm
Desiderius:
"existing power relationships."

Ah, the poor and huddled New Yorker readership. What utter horseshit.
6.3.2009 11:05pm
Ohio Scrivener (mail):
Toobin's bias against conservatives is so transparent that he sometimes stoops to making arguments that assume conservatives cannot have certain basic human values:


His jurisprudence as Chief Justice, Roberts said, would be characterized by "modesty and humility." After four years on the Court, however, Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative.
1

Toobin, of course, never explains how "modesty and humility" are inconsistent with conservatism. He simply assumes it, and expects his readers to agree. Any notion that Roberts could be a "humble conservative" is completely foreign to Toobin's world view. To Toobin, one can only be a "humble moderate" or liberal.
6.4.2009 12:34am
Bill Dyer (mail) (www):
Toobin is a dangerous tool. After the incredible series of whoppers and mistakes in "The Nine," it's hard to believe that anyone takes him seriously. Of course, the people who do are those who want to believe what he writes because of his spin, and without regard to the truth or accuracy of his assertions.
6.4.2009 2:17pm
Guest for today only:
Martin --

Sorry but that's almost as weak as Toobin. In Leegin, the conspiracy was not what the case was about. What made the case signficant was that the Court said "even if you prove that there was an agreement, that is not per se unlawful." It doesn't make it harder to prove a conspiracy. It makes it harder to prove that an agreement restrains trade in an unreasonable manner.

It's a miss. I'm happy for you to put the "miss" in context by noting that it was only one miss, but for someone criticizing a Supreme Court justice on the law, it's a pretty egregious miss.
6.4.2009 9:08pm
Christopher Cooke (mail):
Roberts is very conservative. I think Toobin and some others thought he would be more bound by precedent than he has been. He started out that way, but has shown less respect for it since then.

As for standing, I think that is a much abused way for the court to disguise its real reason and to hide its political biases, and it is not consistently followed except in a results-oriented way.

If Roberts is trying to bring some logical consistency to the doctrine, more power to him.

If he is using it as it has been used in the past --to mask a political design in jurisprudential garb--we should be able to tell by predicting who wins and loses under this doctrine using politically conservative vs. politically liberal litmus tests. E.g., environmentalists lose, consumers lose, criminal defendants lose, gun owners win, the executive power wins over congress, landowners win vs. government, states win over federal government, etc.

I haven't applied that methodology to Roberts' opinions, but I suspect that is what Toobin means by "power" relationships.

I commend Greenburg's book; I found it better than Toobins --more insightful-- although both are well written. Check them out of the library, and form your own view.
6.4.2009 9:11pm

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