Bench Memos

Jeffrey Toobin’s The Nine—Part 4

Of the several mainstream-media reviews I’ve read of The Nine, the best is law professor (and blogger) Ann Althouse’s “Justice on the Couch” in the New York Sun.  Althouse calls The Nine “argument by impressionistic psychodrama” and faults Toobin for “stripping the reasoning out of his book.”

 

Consistent with Althouse’s criticism is Toobin’s strange praise for Justice O’Connor.  O’Connor is the hero of Toobin’s book.  Why?  Because she “steered the Court in line with [her] own cautious instincts—which were remarkably similar to those of the American people.”  Because “for 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.” 

 

It is a curious conception of the Supreme Court’s role that its judgments should reflect American public opinion.  If there is a single point on which conservative and liberal students of the Supreme Court would most agree, it may well be that the Court’s role in enforcing constitutional rights is inherently countermajoritarian.  Proponents of judicial restraint, on the one hand, and of the “living Constitution,” on the other, have very different views of how the Court should construe the Constitution, but they broadly agree that the Court should protect constitutional rights even—or, rather, especially—in the face of contrary public opinion, not tailor its views to reflect public opinion. 

 

Toobin might well be able to offer a coherent argument for his position, but he doesn’t even try to.  I will therefore not bore the reader with a comprehensive refutation of the many respects in which I believe his position makes no sense.  Because I consider the question irrelevant, I also have little interest in examining whether O’Connor in fact ruled in a way that mirrored American public opinion.  I’ll instead confine myself to a couple further observations.

 

In his chapters on Bush v. Gore, Toobin excoriates the Court for the “inept and unsavory manner with which the justices exercised their power.”  He argues that “the Republicans’ [i.e., Bush team’s] appeal to the Court, and especially to O’Connor, was more political than legal,” since “as always for O’Connor, the practical consequences would matter more than the legal theory.”  Perhaps I missed it, but I don’t see where Toobin rests his negative assessment of Bush v. Gore on its being out of step with “what most people wanted or at least would accept.”  What this suggests is that Toobin himself rightly doesn’t take seriously the stated basis for his overall celebration of O’Connor. 

 

In discussing the Court’s 2000 ruling in Stenberg v. Carhart, Toobin concedes that O’Connor’s vote to strike down Nebraska’s partial-birth abortion ban “was not supported by public opinion.”  If reflecting public opinion is the hallmark of a good Supreme Court ruling, then Toobin ought to welcome the fact that Justice Alito’s replacement of O’Connor helped produce the Court’s decision last term rejecting a facial challenge to the federal partial-birth abortion law.  Indeed, contrary to what Toobin asserts, the Court’s current precedents on abortion prevent the American people from enacting all sorts of laws that large majorities favor:  as documented here, well in excess of 60% of Americans believe that abortion should be illegal in the very circumstances that actually account for well over 90% of this country’s abortions.  Since Toobin regards abortion as the “central legal issue before the Court,” Toobin’s anticipation that Alito will help restore abortion policy to the democratic processes ought to lead Toobin to celebrate Alito’s replacement of O’Connor, not to cast him as the anti-hero.

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