The U.S. Supreme Court is a notoriously closed institution. Cameras are not allowed inside the courtroom, the justices rarely give media interviews and are neither required nor expected to explain their thoughts on a given case beyond what is written in an official decision. Clarence Thomas, for instance, famously went seven years without uttering a single word in court. That is what makes journalist Jeffrey Toobin’s behind the scenes look at the court all the more impressive. Through interviews with many of the justices and a wide range of people with first-hand knowledge of the court including clerks, Toobin is able to piece together an incredibly readable narrative that shows the readers who the justices are and how they thought about some of the most important cases of the 2000’s.
Through vignettes and riveting storytelling, Toobin teaches the reader quite a bit about the court’s history touching on seminal cases such as Griswold v. Connecticut, the New York Times v. Sullivan and Miranda v. Arizona.
A lawyer and longtime television legal analyst, Toobin had remarkable access and sprinkles the story with details like the fact that John Paul Stevens has the boxscore from the 1932 game when Babe Ruth “called his shot” to hit a homerun in the World Series. Toobin also illustrates the central thesis of his book which is that the court has become more politicized and more partisan than ever before with 5–4 rulings becoming the norm. Toobin attributes the rancorous environment to a muscular and intellectually-daring group of conservative jurists who came of age in opposition to Jimmy Carter and were acolytes of Ronald Reagan. Additionally, the bruising confirmation hearings of Robert Bork, who was not confirmed by the Senate in 1987 and Thomas who was confirmed after a skewering in 1991 served to politicize the court in a way it never had been before.
“A conservative movement was cresting,” Toobin wrote of the early years of Bill Clinton’s term. “Democrats still controlled the White House and both houses of Congress, but the momentum was with their adversaries. To some extent, the shite reflected the immediate political problems of a new administration, but there were deeper trends at work, too. The judicial counter-revolution had been in the making for a long time.”
The height of this partisan divide occurred in the aftermath of the closely contested 2000 presidential election with the decision of whether to allow the Florida recount to go forward. Toobin releases telling details showing that the justices, who are supposed to be independent, are often political beings. He noted that Sandra Day O’Connor referred to Republicans as “us” or “we” when the judges held betting pools on elections. He also noted that O’Connor was a close personal friend of the Bush family. In painting a picture of the frantic days in December 2000, Toobin interviews law clerks, the lawyers for both sides and numerous political operatives. He dissects how Anthony Kennedy ultimately decided that the Equal Protection clause promising one person, one vote justified halting the recount. He also notes that a proposed footnote by Ruth Bader Ginsburg suggested that if any party violated the equal protection clause it was likely the state of Florida since numerous voters in black districts were disenfranchises. Toobin said the footnote sent Antonin Scalia into a rage and was ultimately removed.
The result is a portrait of the wrangling and bickering that is disheartening to those who would like to see a firewall exist between party politics and the nation’s highest court.
Toobin said the partisan nature of the Bush v. Gore decision was so abhorrent to David Souter that he actually wept. “He came from a tradition where the independence of the judiciary was the foundation of the rule of law,” Toobin wrote. “And Souter believed Bush v. Gore mocked that tradition. His colleagues actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.”
Salem Solomon is a journalist, graduate student and a teaching assistant at the University of South Florida St. Petersburg. She is currently based in Washington D.C., working at the Voice of America’s Horn of Africa Service. You can find her reports in English here, in Amharic here and in Tigrigna here. For daily updates, here’s her Twitter account: @salem_solomon