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Skewing the Supreme Court

The opinions expressed by columnists are their own and do not necessarily represent the views of

Often, people are surprised to learn that I much prefer reading fiction to non-fiction. The main reason is that those who write fiction tend to be people who write for a living, whereas the folks who crank out history books and biographies are very often those whose first love is research.


The other reason is that in a novel, the author is free to divulge everything the characters know, think, feel and do. When it comes to non-fiction, we are often dealing with what the writer imagines took place, and we may not be aware of his bias. There is a reason, after all, why there are so many different accounts of different historical events.

A German historian is probably going to have a different take on the Third Reich than an Englishman will. A devout Christian will not write the same book about Jesus that an atheist will. Someone once observed that history is written by those who win the wars. That’s not entirely true. But those on the winning side certainly write from a very different perspective from those whose countries were vanquished.

I just finished reading Jeffrey Toobin’s “The Nine,” a book sub-titled “Inside the Secret World of the Supreme Court.” I have no way of knowing if what he wrote about the various justices is true. A lot of it sounds like gossip, which I don’t mind. After all, I didn’t read it because I’m prepping to argue a case before the Court, but because I was curious to know more about these people who, in many ways, have a greater influence on our lives than the president or the hundred members of the Senate.

The problem, I found, is that Mr. Toobin, who writes for the New Yorker, couldn’t keep his liberal bias under wraps for more than a couple of pages at a time. But, that’s the way it is with the New Yorker. In case you stopped reading the magazine in the days when it was best known for fiction by James Thurber and J.D. Salinger and cartoons by Peter Arno and Charles Addams, those days are long past. For the past several years, it has proudly carried the water for the far left. Things reached a point where you couldn’t get through reviews of books and movies that had nothing to do with politics without coming across a paragraph bashing Bush and the Republicans. The first few times, I thought there had been a mix-up at the printer, and that these attacks were supposed to appear elsewhere in the magazine.


Toobin wears his partisanship so blatantly that whereas justices Scalia and Thomas are constantly being identified as conservatives, Souter, Kennedy, O’Connor, Stevens and Ginsburg, are praised for being moderates and middle of the road.

Toobin devotes a great deal of time and space to a rehashing of the Florida vote in 2000. He keeps insisting that it was strictly a state issue, while at the same time ignoring the fact that by Florida law, the final nose count had to be determined within seven days of the election, but the Florida Supreme Court, which consisted entirely of Democrats, arbitrarily granted an additional five days for the recount.

Although Sandra Day O’Connor walked on water so far as Toobin was concerned, he could barely find it in his heart to forgive her for granting Bush the fifth vote he needed to be declared the winner in that election.

Frankly, I would have thought that it was worth at least a footnote for Toobin to have noted that if Gore had carried his home state that year, we would all have been spared the endless yakking about chads. On the other hand, had he carried Tennessee, he wouldn’t have won an Oscar or a Nobel Prize.

Justice Kennedy comes in for high praise because, as an inveterate tourist, he begins basing his decisions on what European Socialists believed, pretty much ignoring our own Constitutional guidelines. In similar fashion, Stephen Breyer, who like Toobin, opposes capital punishment, gets high marks for quoting legal opinions from Jamaica, India and even Zimbabwe. But you know that if Scalia, Thomas, Alito or Roberts, based their own decisions on what Polish or Australian conservatives believed, Toobin would rake them over the coals.


When Thomas opposed colleges and universities using race as a basis for admission, Toobin dismisses him as representing “only a fringe view -- on the court and in the nation at large.” Not only is that a questionable conclusion regarding the nation, but one that is of no concern to Toobin when it comes to, say, capital punishment, which public opinion very much supports, or same-sex marriage, which is opposed by the overwhelming majority of Americans.

He writes: “One reason the U.S. military refused to treat the Guantanamo detainees as POWs was because under the Geneva Conventions, such prisoners may not be interrogated.” No mention of the fact that they were in fact enemy combatants, not soldiers. They didn’t wear uniforms or carry a flag, and were therefore not covered by the Geneva Conventions.

When Toobin mentions the Washington Times, he refers to it as “a sort of house organ of the conservative movement,” but he doesn’t dismiss the Washington Post, the New York Times or, God forbid, his own magazine as house organs of the liberal movement.

After spending the better part of 300 pages fawning over Justice O’Connor for the sublime role she played in bringing about 5-4 Court rulings with which he agreed, Toobin bemoans the fact that Roberts and Alito are responsible for a number of 5-4 votes that don’t really create precedents, that serve only to point out how divided on important issues the Court seems to be.

Now I hope you have a better idea of why I prefer reading fiction. When I read that someone is an arch villain who deserves to be pilloried, I prefer knowing it’s because he’s committed a violent crime, betrayed a friend or loved one, or at least evicted an old lady from her home on Christmas Eve, and not simply because some left-wing schnook on the New Yorker didn’t agree with his vote on racial quotas or eminent domain.


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