I just finished reading Jeffrey Toobin’s new book about the Supreme Court. Like Ed Whelan, and to some extent, Eugene, I found myself rather frustrated by it. In this post I wanted to explain why.
First some background. Books purporting to offer an “inside” picture of the Supreme Court generally mix and match three different types of reporting: first, inside reports from clerks and/or Justices willing to speak with the author (aka “the good stuff”); second, the public record of cases, arguments, opinions; and third, the author’s characterization of events and efforts to fill in gaps that allow the author to weave a good narrative.
On the whole, I thought Toobin’s book had some but not lots of “the good stuff,” the inside scoop from Justices and clerks. The most important contribution to the book is probably its substantial material on how the world looks from the perspective of Justices O’Connor and Breyer, both presumably sources for the book. (In case you’re wondering, the gist of it is that both of them envision/ed their job as finding workable and sensible solutions to practical problems and avoiding things that seem extreme.) For Supreme Court geeks, there are some interesting tidbits here and there; some I was familiar with, and some were new.
At the same time, I found myself fustrated by Toobin’s overall narrative and tone. Toobin sees the Supreme Court as all politics, and his politics are obviously pretty liberal. As a result, the book follows a simplistic and sometimes caricatured political narrative. The liberal Justices tend to be portrayed quite favorably as wise and able heroes. The conservative Justices and conservative legal ideas generally tend to be seen as scary, hypocritical, and/or out of touch.
Toobin’s fascination with the seemingly nonexistent “Constitution in Exile” movement is particularly telling. VC readers will know this movement either doesn’t exist or consists of three dudes meeting for dinner once in a while. But Toobin seems to think this “movement” is central to conservative legal thought. He mentions it by name 6 or 7 times, and appears to see it as an important part of the dynamic at the Supreme Court. For example, Toobin writes that Justice Souter “moved left” after 2000 because he “had a visceral horror of such conservative undertakings as the Constitution in Exile.” (p245) In discussing how little was known of President Bush’s legal views, Toobin writes: “As for a more detailed philosophy, like whether Bush supported the Constitution in Exile — and a return to a 1930s conception of the role of the federal government — no one really knew.” (p260). Toobin uses this technique to make conservatives seem scary and hypocritical: he writes that although the jurisprudence of traditional “conservatives like Potter Stewart” (?) embraced judicial restraint and deference to other branches, “the new generation of conservatives . . . did not believe in judicial restraint, and they represented a new kind of judicial activism themselves.” (p14) Subtle, eh?