A sensationalist view of the Supreme Court

Review Law

September 23, 2007|By David J. Garrow

The Nine

By Jeffrey Toobin

Doubleday / 384 pages / $27.95

In recent years the annual workload of the U.S. Supreme Court has shrunk further and further. In the 1980s, the court was hearing and deciding as many as 175 cases a year; in its two most recent terms the totals have dropped to 82 and now a century-long low of 68. The justices insist that the shrinkage is not intentional, and legal scholars cite a bevy of reasons, such as fewer disagreements among lower courts, for the reduced numbers.

But the "incredible shrinking docket," as some wags now call it, hasn't led to a decline in the volume of critical commentary about the high court. When the latest term ended June 28, a flock of op-ed articles denounced its rulings, including one that makes pay discrimination more difficult to litigate and another that curtails school districts' ability to consider race when assigning students to campuses. Both decisions could turn out to have far less impact than critics fear, but as ABC News correspondent Jan Crawford Greenburg observed, "some of the liberal commentary" at term's end was "almost breathtaking in its over-the-top-hysteria."

An example might well be Jeffrey Toobin, a staff writer at The New Yorker and a legal analyst for CNN, who calls the year just ended an "epochal term" for the court in his new book, The Nine. Toobin's fifth book - previous ones include accounts of the O.J. Simpson case, the impeachment of President Bill Clinton and the 2000 presidential election - showcases debatable opinions rather than thorough research or original reporting.

Some shortcomings immediately stand out. Almost a decade ago, another book on the court wrongly alleged that the late Chief Justice William H. Rehnquist repeatedly tried to delay the court's consideration of an important abortion case so that it could not be decided before the 1992 presidential election. The docket sheet on the case has disproved that claim, but Toobin repeats the erroneous story, notwithstanding the now-available papers of former Justice Harry Blackmun, which document that the only delay - of just one week - stemmed from Justice David H. Souter's request to restate the questions presented in the case.

Toobin also writes that Rehnquist, who died in 2005, suffered from diminishing "intellectual energy" and "stopped trying" to influence the outcome of cases as early as 1998. Reporters who have covered the court on a daily basis during those years scoff at Toobin's unsupported contention. (He also asserts that one law clerk pushed another into a courtyard fountain during the 1999-2000 term. But those who cover the court say the only such incident they know of occurred in 1989, a full decade earlier.)

Toobin devotes two chapters to Bush v. Gore, the case that decided the 2000 presidential election. He asserts, based on unidentified sources, that Justice Anthony M. Kennedy was overly eager for the court to resolve the dispute even before it came to them. He also stresses that Justice Stephen G. Breyer felt that the Florida Supreme Court's decision to order a statewide recount "didn't pass the smell test." He relies heavily on not-for-attribution comments from law clerks who worked for the court that year, and he states that the clerks "set the tone in the building" each year, not the justices.

Toobin decries as "inept and unsavory" the way the court reached its 5-4 decision, swinging the election to George W. Bush. He suggests that Justice Sandra Day O'Connor's vote sprang from the fact that "she still loved" the Republican Party. More notably, he claims that Souter was so "shattered" that he "seriously considered resigning" and "wept" over "his colleagues' ... crudely partisan" actions in the case. Souter is well-known for spurning the private, off-the-record chats that most of the justices regularly have with reporters, so journalists often turn to Souter's friend, former GOP Sen. Warren B. Rudman of New Hampshire, for guidance on Souter's views.

Rudman has denounced Toobin's claims that Souter cried and considered resigning as deserving of "the Pulitzer Prize for fiction." "Nobody is closer to David Souter than I am and that story is false," Rudman angrily told the New Hampshire Union Leader this month. Toobin, he added, "never talked to me. You'd think he would have called me," rather than make such a dramatic claim based solely on some anonymous source. Toobin, in an e-mail to The Wall Street Journal's legal blog, responded: "I trust that when [Rudman] reads The Nine in its entirety, he will find the portrait of his friend Justice Souter nuanced and accurate."

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