The United States Supreme Court inspires millions and millions of words of commentary --most of them unreadable by a lay audience (and even among law scholars.) The culture of secrecy surrounding the Court that has developed over the centuries has helped to imbue the Court with a crucial authority, but it also obscures the reality that the nine justices, while smarter than most, are as equal as the rest of us when it comes to the ups and downs that life throws at everyone. Except that one justice has climbed a longer and harder road than any of his predecessors save perhaps one, who left no first person record of that struggle.
Now not one but two books about the Court and its members arrive. One reminds us that a robe does not necessarily bring wisdom, confer strength, or erase pride or ambition. The other confirms that character is the product of many influences, most of them within the family, and that strength in the face of adversity is a learned behavior.
Both are wonderful reads. One will be read for generations as one deeply biased but nevertheless entertaining and informative view of how the Supreme Court has been working for the past twenty-five years.
The other will be read for even longer as one of the most arresting works of political autobiography a major American public figure has ever penned.
Jeffrey Toobin's The Nine: Inside the Secret World of the Supreme Court is a riveting, gossipy, and as I noted above, wildly biased account of why the Rehnquist Court acted as it did. A superb reporter and writer, but also a transparent man of the left, Toobin had access to at least Justices O'Connor and Breyer (or is a fraud rivaling Clifford Irving and I don't believe that for a second) and uses these highly valued sources to create an account of the Court's tumultuous past two-plus decades. Along the way portraits of each of the current justices plus the retired O'Connor and the deceased William Rehnquist emerge that will impact their public perceptions for many years to come.
Unfortunately for Justices Breyer, Kennedy, O'Connor and Souter, the impressions Toobin leaves are not favorable ones, though Toobin seems unaware of what he has done to the reputation of the quartet.
Did he intend to diminish the reputations of the justices, I asked Toobin in an interview the transcript of which is here. Toobin seemed nonplussed by the question, and objected that many had thought he'd paid too much homage to Justice O'Connor, though he admitted to roughing up Anthony Kennedy.
I explained to him why President Reagan's first nominee will regret the cooperation he extended to him, and also provided him with honest reactions to the targets the bulls-eyes of which he so accurately hit. When I pointed out to him that it is hard to credit Justice Breyer's pean to stare decisis at the conclusion of last term when Justice Breyer bemoaned the Court's upholding of the federal statute banning partial birth abortion in what Breyer said was a break with binding precedent, Toobin concurred.
"[I]t’s not terribly persuasive to hear Justice Breyer talk about stare decisis," Toobin replied, "as he did at great length and with great emotion last June at the end of the Supreme Court term, saying, you know, that in his famous quote, he said it is not often in law that so few have changed so much so quickly, talking about Alito and Roberts. But when it came to Lawrence v. Texas, he was only too happy to usher out Bowers V. Hardwick, because he thought it was wrong."
The exchange continued:
HH: So you know these guys, and it’s clear to me, and I know you won’t confirm this, that Justice Breyer is one of those you spoke with, that he’s fooling himself? Or does he not…JT: Well…
HH: …is he capable of carrying these two completely contradictory arguments in his head without noticing the conflict?
JT: I think it’s more the latter. It’s not that he doesn’t notice the conflict, it’s that he can parse the circumstances when stare decisis should control, and when it shouldn’t. I mean, look, as I tell you, I’m not persuaded by his interpretation, but I think he would not recognize that it is completely contradictory. He would say well, there’s certain circumstances that applies, and certain circumstances it doesn’t.
HH: And that really takes us back to the fact it’s really not a judicial theory, it’s really a casting vote of convenience.
JT: Well, and this is one of the main themes of my book, is that you cannot look at law, particularly Constitutional law, as independent of politics and ideology. I mean, these are political, ideological decisions, and there’s no point in pretending otherwise.
I recommend this book highly for it confirms every conservative critique of the Court's "jurisprudence" from Roe forward. Toobin's writing talent and reporting skills are beyond dispute, but his awareness of the impact of what he has produced is limited.
At the same time I am not sure if Justice Clarence Thomas or even his most admiring reviewer quite grasps yet what the justice has produced in his new autobiography My Grandfather's Son. Ask serious readers and writers who care about the issue of race in America since emancipation, and most will agree that certain books have to be read: Richard Wright's Native Son, Ralph Ellison's Invisible Man, The Autobiography of Malcolm X, and Harper Lee's To Kill a Mockingbird among them.
Justice Thomas's memoir is now on that list.
I read the book in two sittings, going back and forth to the United States Air Force Academy last weekend. Flight attendants on both trips as well as a passenger asked what book could possibly be so riveting. When I told them the book and its author, the reaction was both shock and in one instance quite obviously dismay --a continuation of the public assault on Thomas that began in 1991, the period at which the book concludes.
But though the attempted "high tech lynching" was a brutal experience, it is just the continuation of a life long series of struggles that leaves the fair reader exhausted and humbled at the road Clarence Thomas has traveled. I cannot do the narrative justice in a couple of paragraphs, and won't try. But if you are at all interested in understanding --really understanding-- not just Justice Thomas but far more importantly the terrible problem of race that our country's founders, then its framers, and then generations of political leaders have constructed for us, you will read this book and insist on others reading it.
But the attempt by the snarling left to destroy Thomas in order to save the unfettered "right" to destroy unborn life is just side-lighting to the drama that Thomas lived prior to his confirmation, and of almost no use whatsoever in understanding his jurisprudence, easily among the most interesting in decades, and of far more long term consequence than the difference splitting of Justice O'Connor so completely recounted by Jeffrey Toobin.
Clarence Thomas has penned a classic work of American political biography which will rank with Grant's and Nixon's in enduring interest. It is being treated as a dissent now by an elite ideological orthodoxy as rigid as the segregationist south's in its day.
But like Justice Harlan's dissent in Plessy v. Ferguson, My Grandfather's Son is a great work that will have its day. "[I]n view of the constitution," Justice Harlan thundered in denouncing his colleagues acceptance of "separate but equal" segregation in 1896, "in the eye of the law, there is in this country no superior, dominant, ruling class of citizens." He continued:
There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved.
Justice Thomas began life, truly, as the humblest of Americans, in a poverty of material and spiritual wealth so complete I cannot imagine how he survived it much less rose up from it. The answer, of course, is the God working through the man Thomas credits in the title, as well as his grandmother, and some amazing people along the way, including former Senator John Danforth whose example in this book is a rebuke to anyone blessed with privilege who has not used it. (And to Bobby Knight, in a fashion I will leave to the reader to discover.)
No matter what you think you know about Clarence Thomas, you don't know the half or tenth of it unless and until you have read this book.