Following up on “The Nine”

Editor’s note. Please send me your thoughts at daveandrusko@hotmail.com.

Only the most diligent, faithful readers of Today’s News & Views will remember that back in at the end of October, I talked briefly about Jeffrey Toobin’s book, “The  Nine: Inside The Secret World of the Supreme Court,” which I was listening to on CD. 

I half-kiddingly ended by quipping that I would get back to you when I finished. Well, I finished the book this morning, and now I am convinced a follow up is in order.

As I wrote last month, if Toobin, who writes for the New Yorker and appears on CNN, is privy to any secrets, they are well kept. Although he says he's talked to 75 former clerks--and obviously with a couple three justices on the Q.T.--Toobin's "scoop" is that supposedly former Justice Sandra Day O'Connor has no use for President George W. Bush. (This, we are to believe, is part and parcel of being "increasingly alienated from the Republican Party she loved," as Nina Totenberg, NPR's legal affairs correspondent, characterized the situation in her review of The Nine.) Well, who knows. What we do know is that The Nine is replete with factual errors, some of which Toobin has already acknowledged, others he's finessed.

There are lots of observations that could be said (besides the fact that the book pales in comparison to Jan Crawford Greenburg's, “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court”), but let me just mention a couple.

Referring to the years 1992-2005, Toobin argues at one in the same time that the Court has its ear to the ground listening to the rumble of popular opinion and that its dogged defense of abortion on demand—which is NOT where the American people are--is a sterling example of “decisions that reflected public opinion with great precision.” No one, according to Toobin, better embodies this than his heroine, Justice O’Connor.

She not only “had an uncanny ear for American public opinion,” Toobin writes, she almost single-handedly staved off the Huns on the Court until called away to care for her ailing husband.

(It goes beyond our single-issue focus, but the direction the Court is taking many other issues that Toobin mentions—in direct contradiction to Toobin’s characterizations—does reflect where the position of a majority of the American people. I mention this only to reinforce the obvious: like O’Connor, Toobin takes his own pulse and concludes it is the heartbeat of America.)

While even the saintly O’Connor gets her ears boxed occasionally, Toobin falls prone at the feet of Justices Stevens and Souter. With that homage in mind, it is amusing (and puzzling) that Toobin should be so indignant that there are people who are absolutely determined that justices nominated to the Supreme Court actually pay attention to the text of the Constitution.

You might ask yourself why wouldn’t they pay strict attention to ensuring that prospective justices reflect a strict constructionist viewpoint when the alternative is to discover, much to their consternation, that the new justice doesn’t share that viewpoint?

Finally, when writing about the “extremist” conservatives on the Court, Toobin frequently employs extreme language. For example, he writes about a case which, supposedly, represented "a last gasp of liberalism before a likely surge to the right." 

Okay, Toobin doesn’t like where the Supreme Court is headed. Fair enough. But he uses what one reviewer aptly called “the singularly inapt Prague Spring metaphor (Prague Spring was a brief moment of democracy, preceded by dictatorship and followed by foreign tanks).”

And this is not some casual oversight. Toobin despises what he sees as a “counterrevolution” and makes little effort to hide it.  Wouldn’t it be interesting to inquire if he understands that this language implies a revolution—as in the radically undemocratic, foundationless Roe v. Wade decision.

Maybe if he did, Toobin would understand why the Court is so out of step with America on abortion.

Please send your comments to Dave Andrusko at daveandrusko@hotmail.com.