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.

Jeffrey Toobin's The Nine and Justice Thomas:

I blogged below about some factual errors in The Nine that worried me. But I was also troubled by a couple of other things; they are judgment calls, and perhaps you might agree with the author's judgment more than mine, but I thought I'd mention them.

In particular, let me start with the book's treatment of Justice Thomas, which at times strikes me as not entirely fair. Let me offer a few example:

1. On pp. 109-10, the book discusses Justice Thomas's speech in which he asserts "my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black." Justice Thomas, the book argues, "chose to attack straw men. No one quarreled with Thomas's right to his own views; no one said black people had to speak with one voice; no one asserted that support for causes like affirmative action was obligatory for Thomas or anyone else .... It was the substance of Thomas's views, not his right to hold them, that his critics attacked."

Is that really right? Unless I'm mistaken, Justice Thomas has quite often been faulted for his positions not just substantively, but by being damned as a traitor to his race, Uncle Tom, house Negro, and the like — statements that do suggest that he should have had certain ideas precisely because he's black, and that black leaders did indeed have to speak with one voice on those issues. As leading liberal black professor Randall Kennedy put it (describing the phenomenon, not endorsing it), "[a]mong professional blacks, especially lawyers, he is widely ostracized and routinely vilified as an 'Uncle Tom.'" Former Surgeon General Joycelyn Elders publicly called Thomas an "Uncle Tom" (see Wash. Post, May 2, 1995); the Rev. Joseph Lowery publicly said (see Atlanta Journal & Constitution, June 4, 1996) that Thomas "has become to many in the African-American community what Benedict Arnold was to the United States, a deserter; what Judas was to Jesus, a traitor, and what Brutus was to Caesar, an assassin." Is Justice Thomas really attacking straw men when he responds to this the way he did? Is it really the case that "no one [has] asserted that support for causes like affirmative action was obligatory for Thomas" and other blacks like him?

2. Likewise, on p. 112, the author dismisses Julianne Malveaux — who said in a cable interview that "I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do" — as "an obscure columnist." Her columns have appeared roughly once a month in USA Today, one of the highest-circulation newspapers in the country.

3. On p. 111, the book describes how Thomas received a $1.5 million book advance for his memoirs from Rupert Murdoch, and adds in a parenthetical, "More than three years after the contract was announced, and $500,000 paid to him, Thomas had still not delivered a manuscript." If that's just faulting Justice Thomas for being a slow writer, that's fine, though I expect that three years isn't that long a time for writing a manuscript. But if the claim is that he's somehow taking money and delivering only vaporware — which I think is the impression the parenthetical leave — might it have been worth mentioning that the book is coming out just a few weeks after The Nine? The author might not have known this when he was writing the manuscript, but I'd think it could have been checked before The Nine went to press.

More Criticism of Jeffrey Toobin's The Nine

come from Ed Whelan in the National Review Online, here, here, and here.

My Take on -- And My Frustration With -- Jeffrey Toobin's "The Nine": 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?

More on Jeffrey Toobin's The Nine and Justice Thomas:

In my post on this last week, I forgot to include one item that strikes me as especially telling. It's from p. 102:

Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects -- "dogs," in the Court's parlance. When asked which of his opinions was his favorite, Thomas would usually cite a 1996 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a "knuckle" between two cars. "It was a little case that didn't matter to anyone," Thomas said in a speech. "It's almost inconsequential. It was a fun little opinion. I went back into the history of trains." (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas's opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)

This is precisely the sort of thing you wouldn't expect in a book that takes the Supreme Court seriously. The first sentence is probably right, and a sensible evaluation of Justice Thomas's influence as a majority opinion writer (as opposed to as one of nine votes, or as a dissenter). It's a judgment call, of course, but my sense is that indeed Justice Thomas had not been assigned to write the majority opinion in the most high-profile, controversial, or otherwise important cases.

Look, though, at the parenthetical. The case, we're told, is not inconsequential because it had an effect on some litigants, and because the particular litigant in this case couldn't recover for his serious injury. But Justice Thomas was of course talking about how inconsequential the case was by the standards of the Court. He and other Court-watchers know that the Court agrees to about 1% of all the cases it's asked to take. It doesn't take cases, especially cases on statutory interpretation, just to resolve an error below, or even set forth the right rule; it takes them to set the lower courts straight on an important topic that is likely to arise repeatedly.

And by the standards of the Court's cases, this particular case, Nortfolk & Western Ry. Co. v. Hiles, is indeed of little consequence. Consider one measure of consequence -- the degree to which the case is cited by other cases. (This isn't a perfect measure, but it's a good first cut.) Hiles is in volume 516 of U.S. Reports, which contains 33 cases decided by opinion. Those 33 cases put together were cited in 1769 cases in 2006, for an average of about 50 yearly cites per case. Hiles was cited in 1 case in that year, a little below the average of 2 cases per year since it was handed down.

I can understand how an average editorialist who wants to complain about Justice Thomas could make this sort of argument. No case in which people were maimed and as a result of which others would be denied recovery, the argument would go, should be treated as inconsequential or insignificant. Justices should treat each case as important. Oh, and let's add a whiff of "the youngest, cruelest justice" -- how could Justice Thomas be so insensitive to the plight of poor William Hiles?

But someone who is writing a serious book about the Supreme Court can't, I think, take this sort of view. The Justices are asked to hear several thousand cases each year. Many of them center around one or another tragedy. Consequence to one or a few people, while enough to bring a tear to the eye of some journalists, can't be the measure of a case's significance to a serious commentator on the Supreme Court.

And of course Jeffrey Toobin takes precisely this view in the opening sentence: None of Justice Thomas's majority opinions were "truly significant." Of course all of them affected the litigants, and affected the law, but significance is a comparative matter. Yet let Justice Thomas refer to the "[not] truly significant" cases as "almost inconsequential," and he gets condemned for apparently neglecting the importance of horrific accidents and an injured plaintiff (a plaintiff whose legal claim, incidentally, was rejected by a unanimous Court, not just Justice Thomas).

All this, I think, reinforces my diagnosis: What is otherwise a serious book about a serious subject doesn't seem able to maintain its seriousness when it comes to this particular Justice.

Jeffrey Toobin Looking for Corrections:

Jeffrey Toobin writes:

Hi Eugene,

I've been reading your posts on The Nine with interest. I am serious about correcting errors in my books, and I intend to fix anything I can. (Differences of opinion and interpretation are another story, of course.) In any event, I'd continue to welcome your thoughts or those of your colleagues. You can also post this email if you like.

Best, Jeff

I much appreciate the sentiment, and want to urge readers to pass along, in the comments to this post, any other errors they might have found. Please limit this to items that you think are genuine errors that require correction, and of course please be polite and substantive.