Andrew's Reviews > The Nine: Inside the Secret World of the Supreme Court

The Nine by Jeffrey Toobin
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's review
May 16, 2008

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bookshelves: history-skim

More of a liberal rant about the Roberts Court than an impartial history or analysis. It is aggravatingly and stupendously biased. When my blood cools perhaps I will read some more.

(For the record, I am neither a knee-jerk liberal nor an arch-conservative; I am an independent with libertarian leanings. However, in the realm of the law, my feelings align much more with "conservatives", in that I believe that judicial restraint must be the sine qua non of the legal system. The unelected judiciary must be deferential to the elected branches in the absence of a clear or at least somewhat clear constitutional mandate.)

Toobin quickly reveals that he is a staunch liberal, and that The Nine is a political diatribe against "the conservative counterrevolution" in which, Toobin believes, nefarious conservatives are nominating their ilk to the court with the single-minded intent to "reverse Roe v. Wade and allow states to ban abortion, expand executive power, end racial preferences intended to assist African Americans, speed executions, and welcome religion into the public sphere." What a parody of the right. I can almost see Dr.Evil aka Bush cackling in the background. Ah yes, you have got to love those Christian fundamentalist racist pro-death penalty conservatives. The simple fact of the matter is that Bush (please help us) is President, and as such gets to appoint, with advice & consent of the Senate, federal judges. The personal political opinions of a judge should always be irrelevant. What is relevant is whether a judge can rise above personal feelings to apply the word of the law, insofar as possible. Now it may well be that the Court is becoming increasingly political, but it just so happens that any "pro-lifers" on the Court have the Constitution on their side.

What Toobin fails to recognize is that, while the "discovery" of rights by the liberal Warren Court can be accurately labeled "judicial activism", the mantra of "judicial restraint" espoused by "conservative" judges is not, at least theoretically, affiliated with a politically "conservative" (or any other substantive) agenda. A "conservative" judge would overturn Roe v. Wade (stare decisis notwithstanding) not because she is "pro-life", but because the Constitution has nothing to say about abortion and therefore it is not an unelected judges place to overturn the considered will of an elected state legislature.

Ironically, Toobin seeks to challenge the anti-Roe movement (judicial and political) by claiming that "most people" support the right to choose. Again, the issue of abortion is NOT the issue for a conservative judge. The issue is whether the constitution has anything to say about abortion. All Roe does is prevent the will of the majority from mattering. In a post-Roe world each state would be free democratically to set abortion policy. (In fact, the many embarassing law-making revisions by the court since Roe has essentially set up a framework that does mirror what most states probably would do anyway - legal but heavily restricted abortion.)

Liberal supporters of Roe just want abortion protected by constitutional fiat because they support the right to an abortion (perhaps insurance just in case a majority ever disagrees). They probably don't know or care that the Court had to tendentiously analogize the right to an abortion to an already tendentious right to privacy that had also been "discovered" in the Constitution. I dig privacy, but I don't think the act of terminating a fetus (or, in pro-life terms, murdering a cute, defenseless unborn child that would grow up to be another Einstein) has much to do with it.

But in any event, to accept this constitutional protection for abortion, you have to accept the principle that judges can "discover" constitutional protection for things they think should be constitutionally protected. That works fine as long as judges of your philosophical persuasion dominate the bench(i.e., during the Warren Court). But don't start complaining once Warren and his idea of what the Constitution should say is replaced by Roberts and his idea (if, in fact, Roberts et al ARE politically motivated, which is a possibility and perhaps unavoidable to some degree, but I do not believe generally to be the case). Stare decisis (deference to previous judicial pronouncements) is only as strong as the Court say it is. That is what judicial activism means.

Abortion is an exceedingly contentious and difficult policy matter that needs to be addressed in the public arena, not by the courts.
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message 1: by Min (new)

Min The line of cases that preceeded Roe -- that held that decisions about how to order your family affairs free from government interference -- fits neatly within the phrase "No person ... shall be deprived of ... liberty." Griswold aside, the Moore v. Cleveland line of cases demonstrates the need for some kind of safety-valve against majority "Big Brother" types of decisions.

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