Law professor/blogger Ann Althouse has written a devastating review of Jeffrey Toobin's new book The Nine:
It may well be that judicial intuition and ideology have more effect on the cases than do the arguments based on precedent and statutory and constitutional texts, but "The Nine" doesn't put the reader in any position to reach a fair conclusion about that. Mr. Toobin spares us any tedious development of the legal issues and arguments as he dishes up the lively, impressionistic quotes and images that suggest decisions are a very personal expression of the nine individuals who sit on the Court. It's just one big psychodrama — a psychodrama in which some justices — notably Justice Souter and John Paul Stevens —maintain an emotional commitment to the preservation of legal principles while others — Justice Thomas and Antonin Scalia — feel the pull of political conservatism. Others — Justice O'Connor and Stephen Breyer — seem instinctively to know what will work well, and one — Anthony Kennedy — is infatuated with law as "poetry."
You'd never know from reading the book there was a complicated federal statute that affected how the Florida Supreme Court decided Bush v. Gore. The constitutional law in that case? There was "an obscure provision of Article II." The crucial constitutional precedent interpreting Article II? A "nearly incomprehensible opinion of the Court from 1892." With these descriptions, Mr. Toobin expresses contempt for the reasoning. His approach asks the reader to accept the view that legal methodology doesn't matter much.
Instead, human individuals drive the law, as Mr. Toobin tells it...
Mr. Toobin ends his story with a climactic scene, vividly written to show the long-dreaded "conservative onslaught" hitting at last. It's June 28, 2007, and the liberal justices have lost the important case about school integration in Louisville and Seattle. Mr. Toobin works with the only evidence of judicial emotion he has: the faces of the nine justices visible above the bench.
Ruth Bader Ginsburg is staring "in evident fury straight ahead of her." So, she's sitting there with her eyes open? But Mr. Toobin concludes, "The term had been a disaster, and she had no intention of pretending otherwise." Justice Scalia seems to have moved his eyebrows: Toobin has his eyebrows "dancing in satisfaction." Justice Breyer's "sunny disposition" had "darkened." He had a dissenting opinion to read. What did it say? You will have to look elsewhere if you want that legal analysis. All you need to know to understand things, apparently, is that Justice Breyer's opinion was lengthy and that he announced it with "such passion."
And then Justice Alito "roused himself and stared across the bench at Breyer." Heavens! So, Breyer was reading, and Justice Alito looked at him. And then — oh, my! — a muscle in Justice Roberts's face twitched. And that "face was as unlined as when he'd carried Rehnquist's casket."
"It was his Court, and everyone knew it."
You will know it too, if you can swallow this argument by impressionistic psychodrama.
Indeed, this is a recipe for becoming a big-shot political or legal journalist. First, focus on personalities rather than policy or ideology. There's a little problem, however -- you know very little about your subjects as people. So you construct pleasing narratives and fit the facts into those narratives. And when there aren't facts you can adapt to your purposes, you develop mysterious abilities to read the minds of your subjects. Voila! Time to call the Pulitzer committee (Maureen Dowd, 1999) and wait for the royalty checks to start pouring in.
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