Sunday

IN CASE YOU FORGOT... IT IS CRUCIAL TO KNOW WHAT THEY HAD FOR BREAKFAST

I have just finished reading The Nine, Jeffrey Toobin's widely acclaimed portrait of how the United States Supreme Court really functions. Based on a series of exclusive interviews with the justices, this is a book that every American should read as a matter of citizenship.

Make no mistake- this is not a gushing, fawning, tribute to a group of reclusive, detached, scholars -embarked on a mission to discover legal rules. To the contrary, the justices are on display as unmistakeably human- and often deeply flawed. Toobin traces the history of the Court from 1994-2005 to express his deep concerns about the present Court. In his view the evangelistic conservatism of the Court's new majority is undermining much of the Court's own precedent, in a manner that is abhorrent to Sandra O'Connor and other conservatives such as justice Rehnquist. Along the way, Toobin insightfully describes how the personalities and experiences of the justices influence the process by which they decide cases.
Through him we also gain access to the group dynamics of the Court- and how those dynamics change over time.
There is even a brief mention of a copyright case. In profiling justice Souter, Toobin applauds his performance in MGM v Grokster.

Ironically, Toobin also mentions Critical Legal Studies, a scholarly movement of the early 1980's that has strongly influenced my understanding of the law. This movment has been roundly criticized, with good reason- but for a moment, during its reign, we were forced to confront the fact that law is not separate from politics; rather law is but often the masked expression of political power.

This is a truth that we as a culture are loath to accept. We deeply want to believe that the process of judicial decisonmaking is a fundamentally different process from all other forms of decisionmaking. As Toobin documents, those on the left AND the right desperately seek to appoint judges who will adhere to predetermined beliefs in their rulemaking. Yet at the same time, liberals, conservatives and even the judges themselves, will speak of adhering to the rule of law -without regard to their own personal views. Part of the answer to this can be found in what I have seen called the relative autonomy of the law. Under this notion judges can indeed ignore their own beliefs..... SOMETIMES.....
On other occasions the judges will be unable to escape their own values or beliefs. Toobin cites the fascinating example that arose from a decision by justice Alito, when he served on the Third Circuit. One of the many abortion decisions that came before the Supreme Court involved a provision that required a married woman to get permission from her husband before she got an abortion. The provision was a minor part of legislation that otherwise reflected changing attitudes in America about abortion- keep it legal with some restrictions.

But for O'Connor, with her background of struggle as a woman, this provision was anathema. And so, as the swing vote, she shot down much of the legislation and overruled justice Alito. And she never forgot it. Indeed one of the other major themes of the book is how the old line conservatives on the court became more liberal as they were exposed to other cultures and other judicial systems. Influences that were seen as deeply UnAmerican by fundamentalist conservatives.

So, while I was deeply moved by the book, I was saddened by its truths. For I too would like to believe in an apolitical rule of law. But I cannot do so.


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