Bench Memos

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Jeffrey Toobin’s The Nine—Part 1


In this and some additional posts, I’m going to discuss The Nine:  Inside the Secret World of the Supreme Court, a new book by Jeffrey Toobin (of CNN and the New Yorker).  Drawing heavily on interviews with some (unnamed) justices and lots of law clerks, Toobin aims to provide an insider’s account of the Supreme Court over the past two decades.  His basic thesis is that Justices O’Connor, Kennedy, and Souter “doomed the counterrevolution” that conservatives sought, but that with President Bush’s appointments of Chief Justice Roberts and Justice Alito that counterrevolution “has now begun.” 


O’Connor is the hero of Toobin’s book.  She “steered the Court in line with [her] own cautious instincts—which were remarkably similar to those of the American people.”  Intending it as praise, Toobin states:  “[F]or O’Connor there was little difference between a judicial and a political philosophy.  She had an uncanny ear for American public opinion, and she kept her rulings closely tethered to what most people wanted or at least would accept.”  (I’ll critique this conception of the judicial role in a later post.)


Alito, by contrast, is a prime villain, or at least anti-hero, of Toobin’s story.  According to Toobin, O’Connor regarded President Bush’s nomination of Alito as “a direct affront,” and his replacement of her threatens to undue the supposed “centrism and moderation” that Toobin regards as her legacy.


The topic of abortion plays a central role in Toobin’s book—and in the sharp contrast he draws between O’Connor and Alito.  For this reason, I’d like to draw attention to the slippery anecdote with which Toobin introduces Alito.


Five pages into his first chapter (on page 16), Toobin discusses this May 1985 memo that Alito, as an assistant to the solicitor general in the Reagan administration, wrote regarding the United States’s participation in the Thornburgh abortion case. The Third Circuit had struck down the informed-consent provision and several other provisions of Pennsylvania law. In his memo, Alito agreed with the recommendation of the Justice Department’s Civil Division and Office of Legal Policy that the United States file an amicus brief in support of the constitutionality of the Pennsylvania provisions.


Toobin states, correctly, that Alito faced the question “how best to persuade the Court to overturn Roe v. Wade—all at once or a little bit at a time.”  Toobin then asserts that “Alito wound up recommending an aggressive line of attack against Roe.”  But Alito was expressly arguing against an aggressive attack on Roe—and in favor of “nudg[ing] the Court toward the principles in Justice O’Connor’s [1983] Akron dissent, to provide greater recognition of the states’ interest in protecting the unborn throughout pregnancy, or to dispel in part the mystical faith in the attending physician that supports Roe and the subsequent cases.”  As Alito put it, “I find this approach preferable to a frontal assault on Roe v. Wade”—an approach that others were advocating.  (Quotes are from page 17 of his memo.)


So, from the outset, Toobin’s reader is misled into thinking that Alito, in faithfully advancing the legal positions of the administration for which he worked, was aggressively seeking to overturn Roe when he was in fact pursuing an incrementalist approach designed to advance the principles that O’Connor had espoused.  And the reader, informed only that the “solicitor general filed a brief much in line with what Alito recommended” and that the case “turned out to be a clear defeat for the Reagan administration,” does not learn that the positions that Alito advanced on informed-consent regulations were essentially the same ones that Justice O’Connor adopted in her dissent in Thornburgh and in her 1992 opinion in Planned Parenthood v. Casey.


Of course, stating these basic points clearly and accurately would rather have undermined Toobin’s primary narrative line.  Inconvenient things like facts can get in the way of a story.

I’ll deal in a later post with the defects in Toobin’s account of the differences between O’Connor and Alito (as a Third Circuit judge) over the spousal-notice provision at issue in Planned Parenthood v. Casey.  I’ll also present a slew of other factual errors and distortions that ought to make the reader leery of placing trust in Toobin’s stories.  And I’ll discuss broader questions of judicial philosophy that Toobin treats in an inadequate, indeed cartoonish, manner.

Tags: Whelan


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