TBA Law Blog

Posted by: Gary Shockley on Jun 11, 2008

Journal Issue Date: Jun 2008

Journal Name: June 2008 - Vol. 44, No. 6

A generation ago, Bob Woodward and Carl Armstrong shined an unaccustomed light onto the Supreme Court in The Brethren (1979). Now, 30 years later, New Yorker journalist and CNN analyst Jeffrey Toobin has written a new exposé that purports to take the reader "inside the secret world of the Supreme Court." Whether the book lives up to its tantalizing subtitle or not, it does offer a fascinating glimpse of the strong and sometimes quirky personalities of the justices and of the tidal forces that swirl around the court at the start of the 21st century.

Toobin frames his book with scenes from the 2005 funeral of Chief Justice William Rehnquist, whom he sees as an ambiguous figure. Originally selected by President Nixon to help rein in the perceived excesses of the Warren Court and later named by President George H. W. Bush to succeed Warren Burger as Chief Justice, Rehnquist instead presided over a court that expressly declined to overturn the cornerstones of the Warren era, including Miranda v. Arizona and Roe v. Wade. As Toobin sees it, the Rehnquist Court was really the O'Connor Court, with the centrist Justice from Arizona making majorities in support of her instinctively moderate positions. Toobin often notes that Justice O'Connor was not only the first female justice but perhaps the most powerful woman in American history. If his tales of O'Connor's leadership on various issues are accurate, it is an assessment hard to dispute.

Toobin also focuses on a series of blockbuster cases, offering behind-the-scenes tales of how the court wrestled with the most difficult political and social issues of the day. These include the reaffirmation of Roe in Planned Parenthood v. Casey, 505 U.S. 833 (1992), abolition of the juvenile death penalty in Roper v. Missouri, 543 U.S. 551 (2005), reversal of Bowers v. Hardwick in Lawrence v. Texas, 539 U.S. 558 (2003), limited approval of affirmative action in Grutter v. Bollinger, 539 U.S. 306 (2003), and, of course, the selection of a president in Bush v. Gore, 531 U.S. 98 (2000). Having written on the disputed 2000 Florida recount in Too Close to Call (2001), Toobin's account of Bush v. Gore is a highlight of the book. In that case, he sees the court's moderates as losing their instinct for finding sensible compromise in an unseemly rush to resolve a perceived crisis. Toobin suggests that Justice Souter came close to resigning over the result and posits that Justices Kennedy and O'Connor were permanently estranged from their more conservative colleagues who formed the 5-4 majority in that case. Ironically, he sees Bush v. Gore as a major turning point that pushed the court in a more moderate direction and led to many of the surprising decisions of the following term.

In addition to a detailed review of some of the court's more important decisions over the last decade, Toobin gives nuanced portraits of the Justices themselves. Each has his or her own strengths and flaws and most come across as sympathetic figures. Again, the tales of their complex and shifting alliances makes for fascinating reading for anyone interested in the court or the dynamics of nine over-sized and sometimes prickly personalities charged with safeguarding the Constitution.

Finally, Toobin also makes clear that the court remains at ground zero of our current political and culture wars. His discussion of the nomination and confirmation battles over John Roberts, Harriet Miers and Samuel Alito show that conservative forces remain bent on reshaping the court and its jurisprudence on abortion, church-state relations, executive power, the death penalty, and a score of other areas. He sees the triumph of the O'Connor era as its commitment to a middle course that enjoyed wide support from the public. He also anticipates a new era in which that instinct for broad-based compromise may give way to a conservative counterrevolution, with uncertain consequences for the court and the nation.

GARY C. SHOCKLEY is a lawyer with Baker, Donelson, Bearman, Caldwell & Berkowitz PC in Nashville.