Toobin, a legal analyst at CNN and The New Yorker, is the third author this year to dish on the inner workings of the Supreme Court. Last winter Jan Crawford Greenburg of ABC News (“Supreme Conflict”) and Jeffrey Rosen of The New Republic (“The Supreme Court”) also made personality studies of the justices and their relationships with each other. The conceit, usually unspoken, is that inside dirt on their rapport helps us understand the court’s jurisprudence. But should we treat O’Connor the same way we treat Britney and Lindsey?
Although these character portraits may constitute pop psychology, they still have their rewards. Justice Anthony Kennedy’s boundless vanity (all three authors barely conceal their contempt for him; an unnamed justice reports that Kennedy works hardest on the passages he thinks The New York Times will quote) accounts for his grandiose rulings and florid prose. Meanwhile, students of the court are still sorting out why Chief Justice William Rehnquist’s opinions became terse and uninspired in his last years. Rosen contends that his ideas moderated. But Toobin argues compellingly that Rehnquist’s failure after Bush v. Gore to forge conservative majorities—on the death penalty, gay rights, abortion, and the war on terror—left him gloomy and cynical. He horrified a colleague when he confided, “Don’t worry about the analysis and the principles in the case. Just make sure that the result is a good one … Those principles you announce will be ignored.” Where once he fought to preserve his majority (Rehnquist to Antonin Scalia: “Nino, you’re pissing Sandra off again. Stop it!”), he now aspired merely to be a good manager.
There are revelations in these books, too, perhaps none more surprising than the picture that emerges of the paleoconservative Clarence Thomas. He may be silent on the bench and dour on the page, but at the court Thomas is a rollicking presence. He takes the time every year to befriend the clerks (not just his own) and the court’s staff. He drives to NASCAR races in his RV, a photo of which is displayed on his desk next to a likeness of Frederick Douglass. For a time it sat next to a picture of the girlfriend of a colleague’s clerk he’d come to adore (and who just happened to be a lesbian).
He is also stalwart. While Thomas—who has endured years of mockery as Scalia’s clone—won’t compromise his opinions to win votes, his polemics actually moved Scalia rightward when he came to the court in 1991. Scalia had originally planned to join the majority in two cases about a sane man held in a mental institution and a prisoner who’d been beaten by guards. But when he saw Thomas’s conservative dissents (the patient was a policy problem, not a legal one; the prisoner’s beating was a criminal assault but not an unconstitutional dose of “cruel and unusual punishment”), he switched sides in both cases.
Still, personality-driven histories are useful only to a point. Sometimes they distract from larger story lines. In a reductive trap that Rosen escapes (his more sober book contrasts pairs of justices from the court’s history; the final chapter concerns the dialectic between Rehnquist and Scalia), Toobin and Greenburg lose focus on the rise and triumph of modern judicial conservatism. It lurks in the background of both books (Greenburg’s endless subtitle is “The Inside Story of the Struggle for Control of the United States Supreme Court”), and Toobin even promises up front to deliver. But neither devotes ample space, for example, to the Constitution-in-Exile movement, a wonky but powerful group of conservatives who want to reverse the New Deal by changing the way the court interprets the Commerce Clause. In another oversight, Toobin learns that Bush v. Gore nearly occasioned Souter’s resignation, but his reconstruction of the case races past this shocker.
What’s more, anecdotes aren’t always instructive. O’Connor is such a fitness freak (she led morning workouts at the court) that her entrance into a room once prompted a frightened clerk to shove an ice-cream cone into his desk. Does this help us understand her jurisprudence?
Yet this isn’t quite voyeurism, either—at least, not the cable-news variety. There is cognitive dissonance in learning that Thomas isn’t the unalloyed sourpuss his rulings evoke, and it tells us something: his fiery dissents flow more from principle than temperament. (Conversely, we learn that O’Connor’s flowed more from temperament than principle.) Scalia famously refuses to consider how the laws he interprets were enacted—speeches for and against them, revisions in committee—saying that atmospherics never matter. But he’s wrong: gossip about him may not always distill his complex legal reasoning, but it certainly explains the wise-guy delivery.
