“The Nine. Inside the Secret World of the Supreme Court” by Jeffrey Toobin, 411 pp., Anchor Paperback, 2008. Supreme Court nomination hearings have become a game of charades. The senators preen and pontificate and the nominees are evasive and disingenuous. When nominee Sonia Sotomayor was grilled recently, a senator asked: “Can you be objective?” Sure, she said, in an appeasing way. But she should have replied: “As objective as Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito.” Such an answer, while true, would not have been politic. But the Reactionary Five is hardly objective. It is as partisan as any politician. Roberts, in his nomination hearing, said “judges are not politicians” but simply umpires. Malarkey. Judge Learned Hand, one of America’s best jurists, who never served on the Supreme Court, observed: “It is the way of judges to disguise what they are doing and impute to it a derivative far more imperative than their personal preferences, which are all that lie behind their decisions.” And Chief Justice Hughes told a young Justice Douglas when he joined the court: “At the constitutional level where we work, 90 percent of any decision is emotional. The rationale part of us supplies the reasons for supporting our predilections.” After the egregious Bush v. Gore decision in 2000, former Justice Souter called the majority opinion what it was: crudely partisan. The Toobin look, an inside look at the Supreme Court, tells similar truths “The Brethren” did. Written by Bob Woodward and Scott Armstrong 20 years ago, “The Brethren” described Chief Justice Burger as the “pompous, egomaniacal and bumbler” he was. Toobin’s frankness is in the same vein. He writes: • Former Justice O’Connor, no radical, called G.W. Bush “arrogant, lawless, incompetent and extreme.” • Justice Kennedy has “a weakness for high-flown, sometimes meaningless rhetoric.” • Justice Stevens is “dignified, clear-headed … his eloquence honors the court.” • Justice Scalia displays juvenile impetulance, calling people idiots when they disagree with his originalist view of the Constitution.” • Justice Thomas, a “white black,” is so retrograde that just one of his first 40 clerks was black. “Men in Black, How the Supreme Court Is Destroying America,” by Mark Levin, 208 pp., Regnery, 2005. Any book with an introduction by Rush Limbaugh is a bad book. Levin approvingly quotes Bill Buckley as saying that sodomy should be outlawed because it violates the moral principles of America. He approvingly quotes conservative guru Milton Friedman saying, “Economic freedom is an indispensable means toward the achievement of political freedom.” Limbaugh, buffoon of the Right, defers to the masses. He declares that the Supreme Court “is disenfranchising the will of the people.” But the people are often asses or they wouldn’t elect so many cretins. Limbaugh and Levin ignore the court’s key role: to strike down the tyranny of the majority. Many Americans, wedded to the status quo, will never understand a justice like Louis Brandeis who urged “legal justice to conform to our contemporary notions of social justice.” Or, as his partner in dissent, Justice Holmes, put it: the law must respond to the “felt necessities of the time.” The Roberts court rarely responds to such necessities. Yet Levin still sees the Supreme Court as drifting to the Left. Edwin Meese, former attorney general, writes an afterward endorsing such absurdity. Meese says the court is the “driving force for social engineering.” No, it’s a driving force for reaction. “The Supreme Court and the American Elite, 1789-2008,” by Lucas Powe, 350 pp., Harvard Press, 2009. Powe is a frightful conservative, putting property over people. He is on the side of capitalism in its efforts to exploit labor. He calls the Justice Blackmun opinion in Roe “the worst of the 20th century,” ungrounded in the text of the Constitution. On the contrary, it was one of the best decisions the court ever made. It liberated women. Powe gives Brandeis the back of his hand. He quotes Chief Justice Hughes calling him a nightmare. No. Brandeis was the greatest of the 111 justices. But Powe is right about one thing: The law of the land changes as the members of the court change. That change is often for the worse, as the Roberts court shows. Witness what happened on gun control. Judges and scholars agreed that the Second Amendment granted the right to bear arms to militias, not the people. Conservative luminaries called any other interpretation of the amendment ridiculous. Yet the Five Horsemen of Reaction last year struck down a District of Columbia gun control law, calling it a violation of the Second Amendment. It does indeed matter who is elected president.
Jake Highton teaches journalism at the University of Nevada, Reno.