Thursday, August 27, 2009

On "The Nine" by Jeffrey Toobin *****

I ran through this book on the Supreme Court in four days, which means that I was either utterly without anything to do or absolutely fascinated. Luckily, it was the latter. It's one of the few books in the recent past that I hated to put down and took up again as soon as I could whenever I could.

What makes Toobin's account of the Supreme Court so fascinating? That, on reflection, is somewhat hard to say. After all, I was familiar with many of the events that the book recounts. I think it was that Toobin brought to the story some insight that perhaps one doesn't get from the basic news. He brings us into contact with the people themselves, with what makes them tick, and with who they are. Each justice comes off, in some manner, pretty well, though some come off much better than others, particularly those on the left.

That Toobin sympathizes with those on the left seems evident from the book's early pages, when he talks about the Court being separated by a single vote, about the Federalist movement, and about Roe v. Wade. But the "single vote" discussion is also his way to frame the narrative. A single vote changes the court from liberal to conservative, and in Toobin's estimation the court has changed to be exactly that.

What strikes me, however, as the bigger tragedy in all of this is the final conclusion that Toobin reaches--that in the end, all court decisions are about ideology, that they are--in the end--political (something seen quite well in the 2000 election). And it's true. But the sad part about the 5-4 votes that now seem to dominate the judiciary isn't so much that those 5-4 votes are now favoring the conservative side rather than the liberal (with Anthony Kennedy's vote the only one that occasionally swings to the other side). It's that those are 5-4 votes at all and that those so much reflect our own political culture these days. There isn't much space for people in the middle anymore. In a television news commentary culture dominated by Keith Obermans and Glen Becks, politics has become the domain of ideological purists, and so too has the Court. We don't talk to one another anymore to come to a reasoned middle ground. We yell over one another and hope that our yell is the strongest. For the moment, the conservatives, when it comes to the Court, at least according to Toobin, have the upper hand.

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