I just finished reading The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin, a great read. The book looks at the Rehnquist Court, which covers the period from William Rehnquist’s confirmation as chief justice in 1981 to his death in 2005.
The Nine presents the judicial personalities in all their messy glory, from Antonin Scalia’s verbal swordplay in case arguments and opinions, to Sandra Day O’Connor’s constant tack toward public opinion in her decisions, to David Souter’s quaint 19th century lifestyle. Toobin also does an excellent job summarizing the gist of arguments and their importance, both to the law in general and to our day to day lives, without bogging down in lawyer speak.
After reading the book, three points stick most strongly in my brain.
1. O’Connor’s success highlights the ascendance of the middle
It is not news to anyone that followed the court over the last twenty years that Sandra O’Connor dominated its proceedings, especially when it came to controversial decisions such as abortion. Case after controversial case, lawyers on both sides tailored arguments toward O’Connor, and justices writing opinions often had to fit her middle-leaning views into their arguments in order to gain her concurrence, and thus a majority of the court. The Rehnquist Court was, in fact, O’Connor’s Court, and O’Connor was quite possibly the most powerful woman in the nation’s history.
It shows the power of the middle when two sides are evenly matched, or when one side is tantalizingly close to reaching a cherished goal, as the Democrats are in the Senate. Dems are a toenail’s breadth away from a filibuster-proof majority that would rely on the support of two independents. Yet the Democratic caucus put on their little sham theater, putting Joe Lieberman on trial for crimes against Obamanity, threatening to withdraw his chairmanship of the Homeland Security Committee because of comments he made about Obama while on the campaign trail for John McCain. At least those on the left can only hope it was a sham. I understand the need to enforce some degree of party discipline (or, in Lieberman’s case, caucus discipline), but to seriously consider insulting Lieberman and driving him to the GOP would show a startling lack of political sense.
2. It always comes down to politics
Toobin’s disdain for the results of the controversial Bush v. Gore decision seems well founded. In December 2000, a 5-4 court majority ended the Florida recount of “undervotes,” and thus the presidential election, based largely on reasoning that seems riddled with Swiss cheese holes.
Justices Rehnquist, Scalia and Thomas leaned largely in their opinion on Article II of the Constitution, which says that state legislatures, not state judiciaries, are responsible for directing how electors are chosen. Therefore, the three argued, the Florida Supreme Court was out of line when they ordered a recount. But the state court was simply doing what courts always do: interpreting laws that come down from the corresponding legislature.
Justices O’Connor and Kennedy took another course, latching onto the Equal Protection Clause of the Fourteenth Amendment. In their interpretation of the clause, votes must be counted uniformly, and the Florida high court had erred in not setting a single standard for ruling on contested votes. But, like most states, Florida used different voting technologies throughout its territory. How could one standard be used for both punch cards and optically scanned ballots, for example? Such a stance endangers the very possibility of recounts in general, an outcome that is fraught with concern, especially in light of the numerous close races in the most recent national election.
Though she signed on to back the Bush team’s case to stop the election, O’Connor felt queasy enough about the decision and its possible consequences in future cases that she convinced Kennedy to amend his opinion with one of the most chicken-hearted sentences in Court history: “Our consideration is limited, for the problem of equal protection in election processes generally presents many complexities.” In other words, no precedence was being set. The decision was made for that one case only, and therefore to help one person only: George W. Bush. That’s not what O’Connor meant to do, but that was the result, and she and her four mates have been rightly criticized for it.
The Supreme Court in late 2000 looked very political, as do both major party campaigns during the current Minnesota senatorial recount. I won’t bore you with my thoughts of the recount in general, only with one thought: that neither party has the decency to be consistent in its application of the law or the stances it takes from election to election. In Florida eight years ago, Democrats fought hard to keep thousands of rejected absentee ballots from military personnel out of the presidential recount. Those voters had not followed clearly laid-out rules, the Democrats argued, and so their votes should have been nullified to avoid voter fraud. Forward to Minnesota 2008 and listen to the Franken campaign sing sad songs of voter disenfranchisement in a bid to add thousands of rejected absentee ballots into the mix.
I suppose I should not be surprised at such an about face. But note: it was the same, now despised Senator Lieberman, then the second name on the Democratic presidential ticket, who went on Sunday talk shows during the 2000 recount to argue for the inclusion of the military absentee ballots, knowing that they would naturally tilt for the Republicans. I didn’t agree with his argument, but at least he had the decency to stand up for his principals over his political gain.
3. Attacking straw men should be avoided, but still…
Among Bush’s few victories in his second term has been his choice of Supreme Court justices. The choice of Roberts and Alito were home runs in his bid to adhere to the conservative agenda. The additions had an immediate effect on court decisions, from corporate law and gun control to the Mother of All Issues, abortion.
And this new course is unlikely to change under Obama. The three judges most likely to resign in the next eight years — Stevens, Souter and Ginsberg — are all solid liberals. The two oldest conservatives — Scalia and Kennedy — are in their early 70s and likely to hang on until a Republican once again sits in the Oval Office. Barring, that is, death or illness, which, I’m sure, some extremists on the left are hoping, even praying for.
Which angers me. I can’t abide it when people disregard the humanity of others because they don’t share the other’s politics. To paraphrase Jacob Marley’s ghost, “Mankind is our business.” People are people first; political views should matter little in our judgment of their souls, if we dare to judge at all. Yet I heard acquaintances rejoicing upon the death of Ronald Reagan, a man whose political danger had long since been buried beneath the gray tangles of Alzheimer’s disease.
I’m sure there would be rejoicing in a few liberal streets if Scalia fell ill after January 20. I’m sure those revelers would use the plight of women or the ongoing struggles of minorities as justification for their celebration. But that is not the type of left I lean toward, nor the type of America I believe in.
