My Beloved World - Sonia Sotomayor

It is appropriate that My Beloved World will be my final post on Flying Houses before I leave Brooklyn Law School.  I expected to put the blog on hiatus for most of law school, but I ended up remaining somewhat prolific and increased its popularity exponentially.  "My Beloved World" refers to Puerto Rico in this book, but my beloved world will be the library at Brooklyn Law School, which I will be sad to leave.  There have been many miserable things about law school, and while aesthetically our library cannot compete with say, Pepperdine's (which features a view of the Pacific Ocean that surely puts it at the very top), I have always felt that there has been such a wealth of knowledge and information here that learning about the "legal aspect" of any topic was within my grasp.  In my case it came in the form of the biographical accounts of Supreme Court Justices--truly the best models one could hope to have in trying to achieve excellence.

Of course, it is extraordinarily unlikely that I will ever be a federal judge, but at the very beginning of this book, Sotomayor assures all that it is okay to dream:

"A student recently posed another question that gave me pause: 'Given that there are only nine Supreme Court Justices, each with life tenure, can anyone realistically aspire to such a goal?  How do we hold on to dreams that, statistically, are almost impossible?'  As I tell in these pages, the dream I first followed was to become a judge, which itself seemed far-fetched until it actually happened.  The idea of my becoming a Supreme Court Justice--which, indeed, as a goal would inevitably elude the vast majority of aspirants--never occurred to me except as the remotest of fantasies.  But experience has taught me that you cannot value dreams according to their odds of coming true.  Their real value is in stirring within us the will to aspire.  That will, wherever it finally leads, does at least move you forward.  And after a time you may recognize that the proper measure of success is not how much you've closed the distance to some far-off goal but the quality of what you've done today."  (viii)

Most striking about My Beloved World is Sotomayor's natural flair as a storyteller.  It is written almost as if it were a novel, and even has a couple of moments of "magical realism" that would not be out of place in a Marquez novel.  However, Sotomayor ends the story when she is appointed as a federal judge in the Southern District of New York in 1992.  Of course many law students and legal scholars will want to hear about Citizens United or Sebelius or other landmark decisions that were heard sufficiently long before publication, but no such treats are offered.  And it is probably for good reason: Sotomayor (like almost all federal judges) is politically savvy.  Later on in the book she rebuffs a colleague's suggestion to join the Republican party in order to have a better chance of nomination, deciding instead to register without any party affiliation.  Of course people view her as one of the "liberal Justices" and for the most part she has lived up to that stereotype.  However, I was quite surprised to read about her feelings on the criminal justice system.  While I am sure that she considers all cases fairly and without bias, I would generally presume that a "liberal Justice" would show slight bias to the Defense, and not the Prosecution.  However, Sotomayor started her career at the New York County District Attorney's Office, and I was shocked to read some of her statements regarding criminal law:

"However caustic, Judge Rothwax was no cynic, though like many a cynic he had been disillusioned, having started his career as a Legal Aid attorney and civil rights advocate before becoming a prosecutor.  That early experience led him to conclude that given all the elaborate protections of the rights of the accused, any defendant whose case eventually came to trial was almost certainly guilty.  In a controversial book, the judge proposed abolishing the Miranda warning and other rules that he believed handicapped the police and prosecutors; he also argued that a 10-2 jury verdict was close enough to unanimous for conviction.  I wasn't prepared to accept his presumption of guilt, though it is borne out statistically: policemen don't normally make arrests on sheer caprice; most defendants do turn out to be guilty.  But a probability of guilt doesn't seem reason enough to revise our standards of due process.  These are designed to protect everyone from the human frailties of those whom we entrust to enforce the state's tremendous powers.  Even if the vast majority of the law's agents exercise these powers scrupulously, it is unconscionable that anyone should pay for a crime of which he was unjustly accused.  Blackstone's famous ratio ('better that ten guilty persons escape than that one innocent suffer') still speaks to a deep-seated sense of what is just." (208)

Thus, Sotomayor covers herself--at least in this regard.  She does offer up some incredible stories and is not afraid to write about sensitive topics.  I would say that this book should be required reading for anybody that would like to be a prosecutor (or a criminal defense attorney, for that matter), if only because she offers valuable tips for success.  It is extremely difficult to argue with Sotomayor: she is wise, and what the book beautifully captures is how she turned her "humble beginnings" into an asset rather than a liability.  But first, two tips for criminal trial attorneys.  The first is emotion:

"Granting myself permission to use my innate skills of the heart, accepting that emotion was perfectly valid in the art of persuasion, amounted to nothing less than a breakthrough.  Warren [Murray] would teach me much else in the way of trial skills, as had John Fried, Katie Law, and others at the DA's Office.  But that was the single most powerful lesson I would learn.  It changed my entire approach to jurors, from the voir dire to the structure of my summations, and the results spoke for themselves: I never lost a case again.  I had hung juries a couple of times, and once or twice a conviction on fewer than all counts of the indictment, but never an acquittal.
Leveraging emotional intelligence in the courtroom, as in life, depends on being attentive; the key is always to watch and listen.  You don't need to take notes with the court reporter getting down every word.  Lower your eyes to your pad, and you're bound to miss that hint of a doubt that flits across the witness's face.  Scribble instead of listening, and you won't notice the split second of hesitation in which a witness hedges a choice of words, avoiding the ones that would flow naturally in favor of the ones whose truth he or she is more certain of." (210)

The second is jury selection, debunking a myth that still seems to creep into the minds of attorneys today:

"Other lessons I would figure out for myself, often contrary to conventional wisdom.  Some prosecutors, for instance, would look for legitimate reasons to eliminate black and Hispanic juror candidates in the voir dire, the assumption being that minorities are biased in favor of defendants.  But to me that made sense only if you saw all people of color as potential perpetrators and believed, even more implausibly, that they all saw one another that way, too.  It was obvious to me that any black or Latino who held a job, or went to school, or stay home to care for an elderly parent was likely as law-abiding as anyone in my own family and, if anything, far likelier to be the victim of a crime than to commit one.  The notion that such a person would, on the basis of racial or ethnic solidarity, let anyone walk who might pose a danger to the community would have seemed laughable where I came from.  And so I packed my juries with the kinds of people I'd grown up among; the results, again, spoke for themselves."  (211-212)

While I do not believe this book will get any "bad reviews," it is not perfect (I found two typos: "Riven" instead of "Driven" near the beginning; "judge (last name)").  Some might decry sections of the book as being too "touchy-feely" and lacking in clues to Sotomayor's jurisprudence--but she anticipates this in the preface.  I would have liked to see a section on her decision that ended the Major League Baseball strike in 1994, but perhaps we will need to wait until she retires for her "judicial autobiography."  I must say that I read the book in a week, as "pleasure reading" while studying for the Bar, and was dismayed that she did not devote a single word to her experience of taking it (perhaps some memories are better forgotten).  But while I cannot say it is one of the best books I have reviewed on Flying Houses, it contains unmistakable wisdom, clarity and value.  And I found Chapter 24 to be the single best moment of the book.  Justice Sotomayor indulges in a fair bit of self-deprecation, which is welcome in a book where she has to explain how she achieved such magnificent heights.  She is also extremely funny at times.

In Chapter 24 she describes her life after her divorce from her high-school sweetheart, moving to Carroll Gardens and getting advice from friends on dating, with which she did not have much experience.  She writes about her prospects of giving birth to a child and her life as a diabetic.  She writes about adoption.  She writes about her circle of friends and how they have kept her from feeling alone.

She also writes about smoking:

"I had been a smoker since high school, burning through three and a half packs a day for much of my life.  I made my first serious attempt at quitting in my final year of law school: every time I felt the urge, I ran around the block, often with Kevin and Star chugging alongside in solidarity.  Going cold turkey during exams may sound like a needlessly brutal rigor, but in retrospect it seems less perversely self-punishing than lighting up again two years later when Kevin and I split.  There would be further attempts, using various methods, including hypnosis, but nothing worked for good until I saw little Kiley holding a pencil between two fingers, blowing imaginary smoke rings.  The guilt of endangering the health of a loved one is by far the best motivation I've discovered." (284)

She also writes about Puerto Rico's strange situation as an American territory, but not a State.  I do not know if Puerto Rico will ever become a State, but if it does, I think Sotomayor will be considered an important figure in bringing the issue back to the forefront.  However, her feelings on the matter are somewhat masked:

"Again and again, the conversation returned to the island's political status.  Did we want to remain a commonwealth, with some self-rule and a preferential trade relationship with the mainland?  Half the class believed that was no better than being a colony of the United States, living as second-class citizens.  But if we should aspire to statehood, the full rights of citizenship would come at the price of the full obligations, including a tax burden that, arguably, might have crippled our economy at the time.  Some proposed, with passionate conviction, that full independence was the only way to preserve our culture and the proper dignity of self-determination.  The economic repercussions of each position were as inscrutably complex as they were critical to the arguments.  And for those who are eager to discern my present views on the status question, I can only advise you not to give too much weight to whatever ideas vied for prominence in a young student's mind." (152)

All I can say is that this book really made me appreciate Sotomayor and the contributions she continues to make to our country.  If I ever get the chance to meet her, I will ask her for a hug.  I would imagine she gives amazing hugs.

Here is a clip that perhaps better encapsulates what is so great about her: her willingness to be a public figure and to serve as a role model par excellence:

The Brethren - Bob Woodward & Scott Armstrong

"Justice Brennan, 

take out some insurance on me, baby, baby

it's just the i'm busted and dripping, 

my sorry lungs are all leaking, 

it's all over, it's all over i said, 

the last fair deal going down. 

you let your gown to the ground, 

but i'm not waiting around until the kiss-off. 

wasn't it you who said yeah you can shoot me lightly, 

but ask me to be excused, i won't go die politely

anytime that you want you can shoot me lightly,

but ask me to be excused, i won't go die politely. 

justice brennan, i know it's not your fault,

no baby no baby. 

it's just that you're busted and dripping, 

your sorry lungs are all leaking, 

it's not over, it's not over, i said. 

here comes the kiss-off."

-Fugazi, "Dear Justice Letter" 

This song was written at the end of the Supreme Court term in 1990, after Justice Brennan retired.  He had served more than 33 years on the Court, and was 84 years old at the time of his retirement.  He died seven years later.  It would be quite uncharitable for Fugazi to claim that Brennan quit too early, and indeed I do not think that is the point of this song.  Rather it appears to be a lamentation of the reality that the Court now had replaced Brennan, one of the strongest liberals in the history of the Court, with Souter.  Now Souter was somewhat unpredictable--but President Bush appointed him on the theory that he would be a "good right-wing vote."  Clearly this was not the result in many cases, but the Court appeared to be deprived of all its hard-line liberals: only Thurgood Marshall was left.  Harry Blackmun had skewed liberal as time progressed, and John Paul Stevens was essentially liberal, but by no means a "solid vote" for that side every time.  Sandra Day O'Connor was, like Souter, a Republican in name but perhaps the most ideological "centrist" on the Court.  While some of this may be interesting to general readers, this post is not intended as political commentary.  It is a review of The Brethren, which concerns a different Court--the Warren Burger Court from the 1969 through 1975 terms.  Now, I am studying for my First Amendment Law exam on Wednesday and some may view this review as a waste of precious studying time, so I hope you will forgive me if I skew heavily in favor of First Amendment cases so that, when I return this book to the library, I will at least have this post as a sort of "back-up file."

The first and most obvious thing to mention about this book is that it is written by 1/2 of the notorious duo responsible for All the President's Men, as well as for breaking the Watergate Scandal story in The Washington Post.  And it is quite wonderful that Bob Woodward has stayed active in the arena of political reportage.  It is always interesting to see what he has to say.  I must concede that I read All the President's Men when I was a senior in high school, for a course in journalism, and that I was unable to appreciate most of the action that took place during those tense months in Washington.  I must also concede that I am a huge fan of the film Nixon and that I am still somewhat mystified by the extraordinary distaste that the vast majority of American society has for that former President.  Indeed it appears to me that he had no reason to lose the 1972 election, had no reason to "cheat," and was simply a rather insecure candidate who was poorly advised. Frost/Nixon paints quite a different portrait of the man than the Oliver Stone biopic does.  But again, we must address the book at hand, not a political situation.

This connection between these two books is significant, however, because Woodward & Armstrong express rather uncharitable views on Warren Burger.  They glorify Earl Warren as a hero, and indeed so does almost everyone I have ever heard utter his name.  By all accounts, he was perhaps the greatest Chief Justice in the history of the United States Supreme Court.  And after reading The Brethren, most readers would be easily inclined to view Warren Burger as the worst Chief Justice in the history of the Court.  The irony is not lost on others, either, of their progression: Earl Warren - Warren Burger.

The Introduction to this book states that "[m]ost of the information in this book is based on interviews with more than two hundred people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court.  Chief Justice Warren E. Burger declined to assist us in any way." (3) They go on to state that they only make characterizations of the Justices after having several individuals from each chambers confirm that a particular view was generally held.  But the most striking thing about this book is the body blow it deals to Burger.  

Burger is absolutely torn apart nearly every single time he is mentioned.  While the events of this book may be accurate, they are certainly shocking.  And I have to believe that some of the statements are somewhat incredible.  There is one in particular that I recall being quite ridiculous (actually taken from the Memoirs of Richard Nixon):

"'Speaking in the greatest confidence, Mr. Chief Justice,' Nixon replied, 'I am realistic enough to know that if this operation [the U.S. Military incursion into Cambodia] doesn't succeed--or if anything else happens that forces my public support below a point where I feel I can't be reelected--I would like you to be ready to be in the running for the nomination in 1972."  (79)

Now perhaps this statement is in fact true, but one needs to point out the obvious: it is way better to be a Supreme Court Justice than a President!  I do not understand why millions of children across this nation are told by their parents that, "You can do anything--you could even be President of the United States one day!"  Now true, the President is ultimately the #1 most public figure in the Nation and the most powerful standing alone, but it just goes to show the irrationality of people.  It is an incredibly difficult job where you are subject to personal attacks and probably go gray and age much faster than normal people do.  You are in the limelight.  You get to live in the White House, and that is cool, but you also have to do all of these press conferences and take responsibility for all of the actions of government--some of which you have absolutely nothing to do with whatsoever.  Plus, the longest you can stay in the job is 8 years.  Afterwards of course, you are regarded as a celebrity.  But look at every President since JFK:

JFK = beloved, and assassinated.  

LBJ = did not seek second term, widely reviled.  

Richard M. Nixon = resigned.  

Gerald Ford = not viewed all that charitably, mostly remembered for his wife Betty.
Jimmy Carter = sometimes regarded as one of the "weakest" Presidents in history.  

Ronald Reagan = remembered for economic deregulation and Iran Contra Scandal, even blamed for 2008 Financial Collapse.  

George H.R. Bush = did not get elected for a second term (though history has been pretty kind to him, I must say). 

Bill Clinton = Impeached, and though fondly remembered, one cannot forget the rank arrogance of carrying on an affair while in that post--though I do credit him for opening up (later) and being honest.

George W. Bush = Often called the worst President in history while he was in office for 8 years, always mocked for his stupidity.

Barack Obama = a real triumph for America as the first black President, but always questioned about his citizenship, and bashed to all hell regarding his solution to the 2008 Financial Collapse.

By contrast you have the Chiefs since then:

Earl Warren = beloved by every account.

Warren Burger = A question mark, but for the extreme criticism in The Brethren.

William Rehnquist = Another question mark, but for some criticism in The Brethren and The Nine.

John Roberts = Did not receive the blame for Citizens United (Anthony Kennedy did), got some glory for the Affordable Care Act decision, stumbled through Obama's first inauguration--too early to tell--may serve as Chief until 2035 or later.

I think it is quite clear that it is way better to be a Supreme Court Justice than a President, and had Burger actually tried to run for President, it would have been a horrible career decision.  My point is that more parents should impress upon their children that "one day, they could even be a Supreme Court Justice!" --NOT the President!  

Moving on, I do not want to discuss how much this book disses Justice Burger, but I do want to talk about my favorite Justice in it: Justice Douglas.

Justice Douglas (along with Brennan, it must be admitted) is one of the greatest Justices in history.  He joined the Court in 1939 as the replacement for one of the other greatest Justices in history (Louis Brandeis) and he served until 1975.  He currently holds the record for the longest tenure of anyone.  He was an environmentalist before it became fashionable, loved the national parks, and most controversially was married four times (the last two being in his 60s to girls in their early 20's).  Whenever his name appears in The Brethren it is almost always automatically amusing.  One is struck by his powerful beliefs and unflinching views.  It's quite possible that he was the most hardcore liberal that has ever been on the Court (and thus comprised a powerful troika with Brennan and Marshall).  On the subject of courtroom decorum in a case involving a Vietnam War protest outside the Supreme Court building, Woodward & Armstrong reported:

"Douglas intended no delay.  He prided himself on being the fastest writer on the Court.  He often turned out an opinion the day after an assignment; his separate opinions were ready weeks, if not months, before the majority opinions.  His clerks often called these 'plane-trip specials,' because they were written after the Friday conference on an airplane, as Douglas traveled to some speaking engagement.  At times he mailed longhand drafts back to the Court, so that they could be printed and ready for revision upon his return.  The other Justices all acknowledged Douglas's brilliance and incredible productivity, White called him a 'paper factory.'  Douglas was so prolific that once when former Justice Charles E. Whittaker was unable to draft a majority opinion, Douglas finished his dissent and then wrote Whittaker's majority for him.

But the others also had come to wonder if Douglas's opinions--often disorganized treatises on sociology rather than the law--did not sometimes fall victim to his unrelenting pace and curiosity.  Declaring 'there will be no errors in my opinions,' Douglas, just the same, refused to allow his clerks to edit them." (63)

While we are on the subject of Douglas and his clerks, it bears mention that he often treated them poorly, which is quite amusing.  His clerks for the 1972-1973 term--Janet Meik and Carol Bruch--were eviscerated by him.  The book explains that Douglas's abuses of his clerks were "legendary":

"The following term [1969-1970], Douglas told one of his two clerks that he would be fired except for the fact that he was a nice boy and that he was so incompetent that he would not be able to get another job.  'I can get better legal advice from drunks in the gutter,' Douglas said."  (241)

Bruch in particular takes a lot of abuse from Douglas.  "'If you're in over your head, you can leave and I'll get someone else,' he said, hanging up in a fury." (Id.) After he wrote a cryptic note on one case that appeared to ask her to apply an area of the law that had nothing to do with the case, she said to him, "'Excuse me, Mr. Justice, I've been looking at this note and I'm afraid I don't understand it.'  

'I'm not running a damn law school,' he barked." (242) 

Later, I personally think she makes a huge mistake when she leaves him a note that says, "I'm very sorry I made a mistake on this case.  I'm sure there will be other times this year when I will make other mistakes.  However, I've found that civility in professional relationships is most conducive to improved relationships.  You can afford to be basically polite to me."  (Id.)  Later in the week, he says to her, "I gather that you think I'm not civil.  Nothing that I ever say is personal.  This is the rough-and-tumble of the law as practiced in courtrooms daily.  If my law clerks can't take it, I don't want them." (Id.)  Then she responds, "I don't need unnecessary sarcasm, Mr. Justice."  (Id.)

Their relationship further deteriorates and he begins ignoring her.  I will stop writing so much about Douglas now but I must mention the way the clerks are portrayed in this book.

They are portrayed as the "real writers" of the opinions--particularly of Marshall's.  And I often find the characterizations of them annoying and immature.  I am particularly upset that such clerks find their way into this position.  These are people that generally go to the top law schools and then seem to walk around the place like they own it.  If I were so lucky as to even be considered for a position such as that,  I would always tread cautiously--and never talk back to Douglas!  I realize things were different in the late 1960s and early 1970s, but the recent law grads of those days act more like the recent college grads of today.  Particularly lame is when they form a choir for a holiday party and sing a song about how Nixon appoints new Justices.  I cannot say anything more on the subject.

Brennan deserves to have more of a place in this post than I am giving him, but I have grown tired of thinking about this book as a whole.  It is simply worth noting that Brennan emerges as the most powerful member of the Court, and the angriest.  While Douglas's retirement would be worth noting (as would Justice Black's) I simply do not want to spoil those for the reader, as they are some of the most incredible and moving scenes in the book.  Brennan, however, remains and there has probably not been anyone as liberal as him on the Court since his retirement.  One could say that Justice Ginsburg, or perhaps Sotomayor or Kagan, approach him, but it is too early to tell for the latter two.  Justice Stevens appears at the end of the book as Douglas's replacement and is referred to as the "wild card." While I still consider Stevens to be one of my favorites of all time (indeed the one person living that I would most like to have dinner with, if I could) and was always quick to point out that he was the only one on the Court in the 2000s not to go to Harvard or Yale--I was somewhat dismayed to find that he graduated #1 in his class (from Northwestern).  Clearly, no one from Brooklyn Law School will be appointed to the Court anytime soon (except for maybe a faculty member that taught here).  

It is somewhat ironic that the book considers Brennan something of a "mouthpiece" for Marshall.  "Marshall parroted Brennan," (442) according to the unattributed thoughts of Justice Stevens, which is one of the more confusing literary techniques Woodward & Armstrong use.  It has been suggested that Brennan was something of a "reverse-Scalia" -- extremely vocal and angry -- but super liberal rather than super conservative.  And the irony appears when Marshall is replaced by Thomas, who often dispelled accusations of being Scalia's "parrot."  It's a perfect example of the moment the Court changed--not when Brennan retired, but when Marshall retired.  It hasn't really been the same since, and some people wonder whether the composition of the Court will change in the next four years.  It seems doubtful that Scalia or Kennedy would be willing to retire before 2016, but I would not be all the surprised if Ginsburg retired during Obama's next term.  There will be a very interesting same-sex marriage case next year, and though I didn't mention this above, one of the more amusing aspects of The Brethren is the way that the Justices simply do not want to retire because they love their job too much.  Once you're in, unless you have a nervous breakdown and just can't take it or have some sort of scandal (both of which are mentioned in this book), they'll probably need to wheel you out.  

The Brethren, like The Nine (reviewed here http://flyinghouses.blogspot.com/2012/01/nine-inside-secret-world-of-supreme.html) is quality reading, particularly for law students.  I would say that it is a more entertaining book than The Nine and they are pretty similar in length.  The Nine is just denser, and deals much more heavily in the appointment process, as well as the Bush v. Gore decision.  The Brethren, predictably, deals heavily in the Nixon v. United States decision--but it also discusses the voting strategies of far more cases, and is thus more revealing (if not useless) to the law student who happens to be studying them.  However, The Nine is much more "respectful" to the Justices whereas this book treats the Justices more like "human beings" or "mere mortals."  This is a nice perspective to have, but I can't help but feel that this book, more than The Nine, makes the Court appear more petulant and politically-interested than interested in applying a coherent body of law.  Regardless, it is a great book, and I am very glad it was written.  The only thing that remains to be made is a Ken Burns documentary on the Supreme Court.  That would be awesome.  

Appendix

This is for purposes of studying for the First Amendment Law.  It will mention every case that we have studied in the particular section of our course that is mentioned in this book.  Caution: there is a lot about the obscenity cases in this book so I will do my best to keep the passages limited to the essentials.

Gooding v. Wilson (1972) (this is nothing substantive: just an example of Burger's case assignment mischief...)

"In another case, the Chief had assigned a case in which he and Blackmun were a two-vote minority.  Douglas, as the senior justice in the majority, had already assigned this case at conference to Brennan."  (170)

[Note: Brennan actually did end up delivering this opinion--Burger dissented, stating that, "It is not merely odd, it is nothing less than remarkable that a court can find a state statute void on its face, not because of its language--which is the traditional test--but because of the way courts of that State have applied the [fighting words] statute in a few isolated cases, decided as long as 1905 and generally long before this Court's decision."]

[When Rehnquist and Powell join the Court after Black and Harlan retire, the case emerges again]:

"One 4-3 case involved an antiwar demonstrator who had cursed at a policeman (Gooding v. Wilson).  The Chief said it should be re-argued.  

Douglas was sure the vote had been 5 to 2.  'Who was the third vote to reverse?' he asked.

'White,' the Chief replied.

His jaw jutting out, White stared at the Chief.  No, he was with the majority, he stated.  The issue of reargument was finally dropped."  (177)

Roth v. United States (1957)

"The Court's sin, Douglas felt, had been to make obscenity an exception to the First Amendment in the first place.  And the original sinner, the father of obscenity law, the author of the first Court opinion that had attempted a definition, was Bill Brennan.  In a 1957 case (Roth v. United States), Brennan had written an opinion holding that there was one category of expression, obscenity, that was not speech, and thus was not protected by the First Amendment and could properly be banned." (194-195)

"Douglas knew that Brennan had developed his definitions to protect serious literary works--James Joyce's Ulysses, William Faulkner's Sanctuary, Erskine Caldwell's God's Little Acre--from overzealous prosecutors and judges.  Under Brennan's definition, material was obscene if, to 'the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.'  But lower courts continued to ban material Brennan thought was obviously not obscene.  For a plurality, in a 1966 opinion (Memoirs of a Woman of Pleasure [Fanny Hill] v. Massachusetts), Brennan had next tried a formulation holding that material had to be 'utterly without redeeming social value' before it could be banned.  This placed the burden on prosecutors to prove that nothing in a work redeemed it.  Pornographers then took to citing medical reports or throwing in lines from Shakespeare to protect the product." (195) 

Stanley v. Georgia (1969)

"In Douglas's view, these efforts by the Court to define obscenity were absurd.  The only remotely rational development, he felt, had occurred in a 1969 case (Stanley v. Georgia) when Marshall had said obscenity was largely a personal privacy question.  He had written, 'If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he must watch.' 

As defense lawyers attempted to expand the logic of Stanley, hundreds of cases began working their way up the Court.  If there was a constitutional right to possess obscene material in one's home, then there was a right to buy it.  If there was a right to buy it, there was a right to sell it.  If there was a right to sell it, there was a right to distribute it.  If there was a right to distribute it, there there must be a constitutional right to write, photograph or film it.  Or so their logic went.

If the privacy logic could be extended all the way, the lawyers argued, the distinction between obscene and not obscene would become largely irrelevant.  There would be no need to define obscenity as long as people had the right to see and read what they wished.  But Brennan had dissented from Stanley, and during the previous two terms had refused to provide the liberals a crucial fifth to extend the logic.  Now, with White shifting and two new Nixon Justices taking their seats, Douglas feared that a majority modify Brennan's old definitions and declare a war on pornography--and soon on free speech."  (195-196)

Miller v. California (1973) -- Decision to pass over to the next term

"The Chief could hardly wait for three obscenity cases that were to be among the first argued to the full nine-man Court.  He considered it fortunate that the Warren Court liberals had never gotten five votes to agree on a definition; that would have settled the law.  Their lack of agreement gave him an opportunity to leave his mark in an area of the law on which the Court had been stumbling for fourteen years.  There had to be a way to suppress pornography and still protect free speech, he felt.

The January 21 conference, with Powell and Rehnquist now in attendance, was a test of endurance.  By the time the Justices got to the three obscenity cases, their energies had measurably faded.  The first case (Miller v. California) was the most difficult, in that it raised questions about the definition of obscenity.  The conference put it aside and turned to two cases that involved extending the Stanley privacy decision (* U.S. v. Ortito and U.S. v. Twelve 200-Foot Reels of Super 8 mm. Film).

The discussion was complex, the positions difficult to follow, but Douglas counted votes quickly.  Stewart and Marshall were ready to vote with him to extend the Stanley decision to cover both cases.  To Douglas's surprise, Powell also joined them.  In an effort to bring himself up to par on constitutional law before he arrived at the Court, Powell had asked associates at his old law firm to prepare memoranda on major areas.  One of their recommendations had been to extend the Stanley privacy doctrine.  Powell was willing to follow the advice, at least tentatively.  Brennan and Blackmun seemed ready to go along with the four in one case, but not the other.  

The Chief waited and spoke last.  He was willing to go along in one case, perhaps both.  'I'll try my hand at the opinions,' he said." (196)

Paris Adult Theatre v. Slaton (1973) 

"Burger also shared Brennan's concern about protecting children from pornography.  'I consider the state free to make a serious felony out of any conduct that permits access to minors to nonprotected material,' he said.  Most importantly, he would be willing to extend the Stanley logic to permit importing pornography for private use.

Brennan was still partially encouraged but wondered what the Chief had in mind.  Surely his draft was not ready for publication.  He went to see Burger to talk over the situation.  

The next Monday, June 19, the Chief sent around a simple note.  'In the present posture of the [obscenity] cases neither Justice Brennan nor I can make specific recommendations as to the disposition of the cases held for opinion...We will discuss this at the June 22 Conference.'

Brennan reassessed the situation.  White, Blackmun and Powell seemed concerned with the need to give a publisher or seller fair warning that he could be prosecuted; he must be told what is obscene.  If that hurdle could be overcome, they might follow the Chief's lead and permit the states to restrict obscene materials even from consenting adults.  

To keep them from voting with the Chief, Brennan wanted them to take cases that did not involve unwilling viewers but rather cases in which consenting adults had sought out pornography.

One involved the sale of a pornographic novel without illustrations to an undercover police officer who asked to buy some pornography.  The other two involved an adult movie theater and an adult bookstore, both plainly marked, both without offensive advertising outside, and both of which refused to admit juveniles.  If those cases, involving only printed matter or consenting adults, could be argued early, Brennan might be able to show that his approach was preferable to the Chief's redefinition of obscenity.  

The conference on June 22 readily agreed with Brennan's suggestion to take the additional cases (* Kaplan v. California; Paris Adult Theatre v. Slaton; Alexander v. Virginia) and to argue them early in the next term.  They also put over the three cases before them.  They now had a package of eight cases that would present virtually every unanswered question in obscenity law." (203-204)

"Two weeks into the term, the Court heard the first of the obscenity cases.  These were three cases that Brennan wanted considered first.  They posed the question of whether states could ban consenting adults from walking into a theater or store and buying or seeing what they wanted and expected to see. There was no exposure of books or movies to unwilling viewers or children.

The first case involved the Paris Adult Theater in Atlanta, whose owner had been convicted of showing the X-rated movies Magic Mirror and It All Comes Out in the End.  At oral argument on October 19, the attorney for the theater noted the Chief's frequent public complaints about the Court's heavy case load.  One way to reduce it, he suggested, was to permit the 'controlled' sale and showing of sex-oriented films.  The courtroom erupted in laughter.  The Chief did not smile."  

JK: There is more about Miller v. California, but I grow tired of transcribing so much and worry that this may be the most flagrant violation of copyright that I have ever proffered on Flying Houses, so I will move onto other cases.

Cohen v. California (1971)

"Harlan's view of the First Amendment was not always so expansive.  Paul Cohen, a young antiwar protester, had been sentenced to thirty days in jail for disturbing the peace by wearing a jacket with the words 'Fuck the Draft' inscribed on the back.  Harlan termed this case (Cohen v. California) a 'peewee.'  

.....

Black found the conviction of Cohen so outrageous that he insisted that the Court summarily reverse the conviction without even holding oral argument.  Harlan's strong opposition prevented the summary reversal, and only reluctantly did he agree to have it argued.  

Many clerks, however, saw the case as symbolically important.  Sentiment against the Vietnam war was at its height.  Many of the clerks opposed the war, and felt a little guilty that they had signed up for a year with an establishment institution like the Supreme Court.  Most agreed with the sentiments on Cohen's jacket, and one way or another many had themselves avoided military service.  In a vote on whom to invite to a question-and-answer lunch, one of their top choices had been the outspoken anti-war activist Jane Fonda.  

The antiwar movement was part of the clerks' culture, and its slogans part of their politics.  The obscenities used to denounce Vietnam and the draft were important political expressions.  Clearly, if the First Amendment protected speech of any kind, it protected political speech.  Abrasive, outrageous expressions were sometimes called for.  'Fuck the Draft' was hardly the most extreme.  A decision against Cohen, in essence banning 'Fuck the Draft' from the jackets and posters of the antiwar movement, could have deeper ramifications, some clerks believed.  Police throughout the country were looking for grounds on which to curtail the activism unleashed by the war

....One of the clerks [in Stewart's chamber] fashioned a makeshift patch combining the themes [of flag sculptures and jacket slogans] and put it on the back of his suit coat.  'Fuck the Flag' it said.  He wore it for several hours around the chambers before deciding that he did not want to test the Court's tolerance for political speech in its own building." (128-129)

"The ritual that Harlan enjoyed most was sitting with his clerks on Thursday afternoons, reviewing the cases argued that week in preparation for the Friday conference.  The afternoon of February 25, the clerk he had assigned to the Fuck-the-Draft case reviewed the details at length, pointing out that according to Harlan's prior opinions, the slogan was clearly protected by the First Amendment.  Cohen's conviction was for the content of the message on his jacket, for his opposition to the war, and not for some disruptive conduct.  

For Harlan, and for all of his colleagues except Douglas and Black, there were exceptions to what was protected speech under the First Amendment.  The clerk went down the list to assure Harlan that none was involved.

Did the words advocate an insurrectionary act--the overthrow of government or interference with the draft?  No, they merely conveyed Cohen's view of the war and the draft.

Did the words immediately endanger observers--like shouting 'Fire!' in a crowded theater?  No, of course not.  

Did the words incite a noisy disruption?  No, the only one in the courthouse apparently bothered by them was the arresting officer.

Did the words provoke a violent reaction from observers, so-called 'fighting words?'  No, again only the arresting officer seemed concerned.  He had tried and failed to get the judge to hold Cohen in contempt.  

Were the words 'offensive' to unconsenting viewers?  This was the most difficult problem for Harlan.  Some passersby in the corridor might have been offended.  But they could have limited their exposure by moving away, the clerk argued.  The only captive audience would have been the one in the courtroom where Cohen appeared, but there he folded his coat over his arm, so that the spectators were not exposed.  Moreover, the clerk reasoned, a certain amount of 'offensive' exposure had to be expected in public.

....

At conference the next afternoon, the Chief referred to the case as the 'screw the draft' case.  He voted to uphold the conviction.  To everyone's surprise, Black's position had changed drastically.  He did not offer his absolutist position.  Instead, he agreed with the Chief: this was a question not of political speech but rather of the pernicious use of a vile word.  Cohen's jacket slogan was not protected 'speech' but unprotected 'conduct,' he said.  Cohen could be prosecuted.

With his most boisterous drawl, Black claimed that he was not deviating from his absolutism.  Conduct was different from speech.  His favorite example was picketing a courthouse.  It was unacceptable conduct, not speech.  People could not 'tramp up and down the streets by the thousands' and threaten others, for example. 

Douglas and the other First Amendment liberals--Brennan, Stewart and Marshall, who grumbled that it wasn't a case worth 'giving blood on'--all lined up in favor of reversing the conviction.  White and Blackmun sided with the Chief and Black.  

Harlan provided the days second surprise.  He had thought it over, and he was not leaning toward overturning the conviction.  But he was still not sure.  He wanted the case put over for a week.  He needed more time to consider it.  

The others agreed.

Douglas's clerk joked about how the 'magic word' set off such severe reactions in the 'Bad B's,' as he referred to Black, Burger and Blackmun.  Douglas was disappointed that Black had deserted his long-standing First Amendment position.  Perhaps Black was simply too old to understand these issues anymore, to pursue the reasoning necessary to draw consistent parallels.  But Harlan's hesitation offered little encouragement.  He would likely end up voting to uphold the conviction.  He too was out of touch with the country.  The key would be Black, Douglas figured." (129-131)

JK: This last quote may set a record for the longest single passage on Flying Houses.  There is more, but I believe this is enough.  But it is worth noting that Blackmun, Burger, and Black dissented from the majority in this case (which reversed the conviction), and White joined paragraph two of the dissent (written by Blackmun) which read, "I am not at all certain that the California Court of Appeal's construction of section 415 is now the authoritative California construction....Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of [a subsequent] decision by the State's highest tribunal.  (White did not join paragraph one of the dissent which reads "Cohen's absurd and immature antic, in my view, was mainly conduct and little speech...the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench.  As a consequence, this Court's agonizing over First Amendment values seem misplaced and unnecessary."  

Alright, that is enough on Cohen!

Buckley v. Valeo (1976)

"Also pending was a challenge to the massive federal campaign law, which had been enacted in 1974 to reduce the influence of big money and large contributions in political campaigns (Buckley v. Valeo).  The law had four major provisions.  It provided for the financing of presidential campaigns from federal tax revenue; imposed elaborate contribution and campaign-expenditure reporting in which contributors were publicly named; limited individual campaign contributions to $1,000; and set strict limits on campaign spending by candidates.  

Senator James F. Buckley, a conservative Republican from New York, and Eugene McCarthy, a liberal Democrat from Minnesota, had led the legal challenge, arguing that the limitations abridged free speech.  The case presented more than twenty constitutional questions."  (395-396)

[JK: As you can imagine, I am exhausted at this point, having finished this actual book at 9 AM this morning, and having taken an hour long nap in the napping room of the library, and it being 3:35 PM now]

"Douglas returned to Washington at the end of November.  When he came to his chambers, he buzzed for one of his clerks.  No one came.  He pushed the buzzer again.  Still no one.  It was strange.  They always came running.  He pushed longer and harder on the buzzer.  

Marty Bagby, Douglas's senior secretary, finally appeared at the door.

'Where are the clerks?' Douglas angrily demanded.

'There are no clerks,' she stammered.  The Chief Justice had reassigned his clerks while he was gone.  

Douglas glared at her.  No clerks?  He was a Justice.  He had work to do......

Douglas had been a full member of the Court when oral argument was heard on the campaign finance law.  He saw no reason not to participate in the decision, since his replacement would not be able to take part.  He decided to write an opinion......."  (396-397)

The Nine: Inside the Secret World of the Supreme Court - Jeffrey Toobin

About nine months ago, my seat buddy in Constitutional Law asked me, "Have you read The Nine?" A few months later, at my 10th high school reunion, a recent J.D. recipient and classmate asked the same question. I said no, but I joked vociferously with him about the Supreme Court. He said the book showed that the justices just liked to squabble all the time. It made it seem funny.

Turning into a nerd, I started joking all too often about the Supreme Court. Truly, the justices were the greatest political celebrities in America. They may be the greatest celebrities of all, though I am sure Snooki commands a greater majority of the public consciousness than Stephen Breyer. Over this winter break, my nerdiness reached its absolute. Recognizing that my family had 9 members, I decided it would be appropriate to institute a family court. All decisions that affected all members of the family significantly would have to be voted on, with a majority opinion written which would then contain "holdings" for future decisions. My hope is that the practice would be handed down from generation to generation. Whenever a family member died, rules were in place to appoint replacements. However, all opinions would be "advisory," which Supreme Court opinions never are. This caused considerable confusion, but it was fun to attach a justice to each member of our family:

Dad - John Roberts (Dad was offered the position of Chief Justice, but gave it to Mom. They look alike and are conservative - though Dad would never admit as much, having supported Obama - and both have a son named Jack.)
Mom - Ruth Bader Ginsburg (Their political ideologies are almost perfectly aligned.)
Brooke - Sonia Sotomayor (Liberal, and with a middle name of "Vanessa" the most vaguely Hispanic - though I am not sure Vanessa has any Hispanic implications whatsoever.)
Marc - Stephen Breyer (Only because he looks 10 years younger than he is.)
Lindsay - Samuel Alito (There is no good reason for this - except that his seat was Sandra Day O'Connor's, and they wanted a woman to replace her, but they got him instead.)
Me - Antonin Scalia (We are at opposite ends of the political spectrum - but we are both also incredibly angry, enjoy grandstanding, and have a flair for incendiary prose.)
Michael - Anthony Kennedy (He is unpredictable, the "swing justice," the most powerful man in America.)
Emma - Clarence Thomas (She is the most black, and extremely conservative.)

I bought The Nine for Michael as a Christmas present. Before Christmas, I did my best to get through as much of it as possible. Whatever ringing endorsements there may be for it are all true. This book is essential reading for all law students, and for anyone else interested in what is probably the most important branch of government.

The focus of the book is on the nine justices that served together for the longest period in American history, 1994 - 2005: Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer. The area addressed is (almost) exclusively Constitutional Law. Any 1Ls (or 2Ls at certain schools, I am told) that have not taken this course will be well-served to read it. I got a B in Con Law last year. I've written enough about my failure to address the Commerce Clause, but this book serves as an effective "nutshell" for a very high percentage of cases that will be covered in that course (had I read it, I might have gotten an A-, given my professor's then-seemingly peculiar method of placing the justices on a line from left to right). Those cases are:

-Roe v. Wade (+ Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart)
-Grutter/Gratz v. Bollinger (+Adarand v. Pena, Bakke v. Regents of University of California, and the Louisville/Seattle school district cases that close out the text.)
-Bush v. Gore (+ Clinton v. Jones)
-United States v. Lopez (+United States v. Morrison and Gonzales v. Raich)
-Hamdi v. Rumsfeld (+Rasul v. Bush, Hamdan v. Rumsfeld, and Boumedienne v. Bush)
-Kelo v. City of New London
-Lawrence v. Texas (+Bowers v. Hardwick)
-District of Columbia v. Heller (in the Afterword)

There are many others I am forgetting. But aside from being an entertaining primer and supplement to the sometimes inscrutable language of their opinions, the book is above all, a great mini-biography of all the justices.

John Paul Stevens probably comes across as the most admirable. He was still serving at 89 (90?), and stayed on the Court nearly as long as anyone in history. More importantly he was from Chicago and went to Northwestern Law rather than Yale or Harvard. His vote was not always that predictable, but in later years he moved to the left. He always applied a certain degree of common sense in his decisions that is a breath of fresh air, considering the underlying theme of this book: the conservative movement to control the Court.

It's extremely disturbing to read about hardcore Federalists and Evangelicals. However, Toobin notes near the very end that, "They organized more, mobilized more, and cared more about the Court than their liberal counterparts. And when their candidate won the presidency, these conservatives demanded more--a pair of justices who were precisely to their liking [Roberts and Alito] (and the ejection of one nominee, Harriet Miers, who was not). With admirable candor, and even greater passion, conservatives have invested in the Court to advance their goals for the country." (393) It seems clear that Toobin favors liberals, but he does not seem to criticize conservatives unfairly. However, I do not want this review to dissolve into a discussion of partisan politics. The Nine will provide a heavy education if you are seeking that. Needless to say, I consider the squabbles between liberals and conservatives over affirmative action and abortion and gay rights extraordinarily annoying, and heavily favor O'Connor's view of judicial independence. Anyone that votes along partisan lines without considering the issue from their own independent point of view as an individual deeply steeped in the practice of law is abusing the system. Judges are not supposed to be partisan. But they are. This is the ultimate take-away from the book.

Sandra Day O'Connor was the most powerful woman in America during her time on the Court. She was quite conservative, and her move to the center, and then the left, makes for a fascinating read. She was the original "swing justice" and controlled the Court. Toobin takes pains to point out that O'Connor, better than any other justice (with perhaps Stevens in 2nd), tried to vote on every decision as she thought the American popular consciousness would vote. And most of the time she got it right. Except in Bush v. Gore.

Bush v. Gore merits special mention because it was sort of glossed over in my Con Law class, but is described in such minute detail in The Nine that it takes up its own special section of the book (Part Two of Four). Toobin frankly seems obsessed with this decision. He has very strong opinions about it: "The struggle following the election of 2000 took thirty-six days, and the Court was directly involved for twenty-one of them. Yet over this brief period, the justices displayed all of their worst traits--among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court." (165)

It is worth noting that Stevens is perhaps the only one that didn't embarrass himself in this case. Toobin cites a "peroration" that Stevens composed from his home in Fort Lauderdale that pretty much sums it up perfectly: "Time will one day heal the wound to that confidence [in the men and women who administer the judicial system that is the true backbone of the rule of law] that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly [formerly "pellucidly," as Toobin notes] clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law." (207)

David Souter nearly resigned after Bush v. Gore. It took a serious toll on him. It seems clear that the he hated serving on the Court. This is probably an exaggeration. However, he comes across as, by far, the most interesting person in the book. One would naturally assume that Scalia provides most of the entertainment in this book, but it is actually Souter who is hilarious.

"Fifty-two years old and a lifelong bachelor, he had the habits of a gentleman from another century. During the day, he would leave the lights off in his office and maneuver his chair around the room, reading briefs by the sun. He ate the same thing for lunch every day: an entire apple, including the core and seeds, with a cup of yogurt. When the justices sat together in the dining room, the two items would be delivered to Souter on the same fine china that served his colleagues; Souter was familiar with Coca-Cola, but he had never heard of a beverage that several of the other justices favored--Diet Coke. Souter did all his writing by fountain pen. Perhaps the best known fact about the new justice was that when Warren Rudman, the New Hampshire senator who was Souter's friend and patron, gave Souter his first television set, he apparently never plugged it in." (51-52)

I could cite more examples but I don't want to spoil it all. Just one more to highlight the awesomeness of being a federal judge:

"Souter had minimal financial obligations and a lifestyle that hovered somewhere between modest and ascetic. He had no wife, no children, a venerable family homestead in New Hampshire, and a small apartment in an unfashionable neighborhood in Washington. He worked about seventy hours a week, and his main hobby was jogging. In the annual disclosure that the justices are required to file, Scalia reported being reimbursed in 2003 by universities and bar associations for twenty-one trips, several of them abroad; O'Connor came in second among the justices with nineteen. Souter was last, as usual, with none. He also reported no outside income from speeches or publications and no gifts. Still, Souter's New England frugality was one factor that kept him on the Court when he thought about resigning after Bush v. Gore. Years earlier, he had invested in local bank stocks in his home region, and after a series of takeovers, the value of his shares had soared. By 2003, he reported cash and stock assets between $5.2 million and $25.5 million, nearly tying with Ginsburg for the highest on the Court. But Souter was also acutely aware that federal judges were entitled to retire with full salary after fifteen years on the bench, a benefit that would become available to him in 2005, when he would be sixty-six. A resignation before that point would forfeit his full pension, so he told friends he thought it would be unwise to forgo that bounty. It was characteristic of his quirky personality that he would worry about his pension when he had little need for it--and almost nothing to spend it on--but Souter's colleagues were used to his eccentricities." (283-284)

Anthony Kennedy is probably the second most eccentric justice profiled in the book. He has a flair for the dramatic. His "sweet mystery of life" passage from Casey is mentioned more than a couple times. His prose is purple. However, I happen to like it most of the time. Also, though conservative, I tend to agree with a lot of his decisions. He is referred to as "the most dangerous man in America" when he seems to turn his back on the conservative movement by joining the "troika" of Souter and O'Connor in Casey, but now that O'Connor has retired, he is the ultimate "swing justice" and the most powerful man in America. (Everyone knows that he will cast the deciding vote on the constitutionality of the Affordable Care Act in June 2012--but then again, it would be just like the Court to surprise everyone on this issue. Further speculation on this issue is likely to be rendered moot and I do not like Flying Houses to exhibit obsolescence.)

His opinion in Roper v. Simmons (a case with which I am not intimately familiar) is emphasized because he pointed to the practices of other countries in generally not allowing the death penalty for juvenile offenders (the only countries that did allow it were Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China) and this greatly offended conservatives. There are some funny parts about him too, but probably the best is when Tom DeLay chastises him for doing research on the internet. But his chambers are (is?) worth noting:

"Understatement was the rule for the decor in most justices' chambers. Everyone had a few personal touches--O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit his 'called shot' home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars--garish touches that made the office a sort of comic tourist attraction for law clerks and other insiders. All of the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection. What was more, he wedged his desk into the far corner of his office, away from the door, so that visitors had to traverse the expanse of his room to shake his hand. It was an office that tried hard, maybe too hard, to impress. (Kennedy even labored on his magnificent view of the east front of the Capitol. When Congress announced plans to build a massive visitors' center between the Court and the Capitol, Kennedy took the lead in lobbying the legislators to make sure it was built entirely below ground, so as not to disrupt his vista. The negotiations turned out to be surprisingly complex, and lasted for years, but Kennedy won this battle, and the view from the Court was largely preserved.)" (172)

Antonin Scalia deserves mention next, as he was appointed close to the same time as Kennedy, and was actually his classmate, and former running partner. They are also close to the same age and likely to retire around the same time. Scalia is probably one of the most noteworthy members of the Supreme Court ever. He had 9 kids. He is of Sicilian descent. He was raised in Elmhurst, Queens. I think he is a Mets fan. I am very fond of his dissent in Romer v. Evans because of his bizarre mention of a law firm interviewee's hating the Chicago Cubs being permissible grounds for denial of an offer. Scalia rarely wrote important majority opinions, and probably has the all time record for dissents. His ideology may be abhorrent to me, but my feelings about him are much more complicated. I really respect his ability to "humanize" the Court and lighten the mood. I am also of Sicilian descent, and Catholic. Also, I totally agree with him about Crawford:

"In two decades on a generally conservative Court, his number of important majority opinions was almost shockingly small; asked at a public forum his favorite of his opinions--a common question for the justices in such settings--he came up with an esoteric case interpreting the Confrontation Clause of the Sixth Amendment." (368-369)

If this is indeed a reference to Crawford v. Washington (US, 2004), Toobin is making a serious mistake by calling it an "esoteric case." Crawford is one of the most important cases in the study of Evidence. Scalia draws upon practically the whole of human history in the development of the Confrontation Clause of the 6th Amendment. It makes for one of the more interesting reads that the Supreme Court has produced, at least for its storytelling quality of the trial of Sir Walter Raleigh in 1602. Furthermore, his recent dissent in Michigan v. Bryant (US, 2011) is also worth a read. Scalia feels very strongly about the Confrontation Clause, and I am inclined to agree with him on it. Moreover, he is often "a voice in the wilderness" and no one joins his dissents. This makes me feel bad for him in a way, and also makes me feel closer to him, because I feel the same way a lot of the time. His rejoinder to the editor of the Boston Herald after a reporter had written about his making an "obscene gesture" at a church is worth quoting at length:

"Your reporter, an up-and-coming 'gotcha' star named Laurel J. Sweet, asked me (oh-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said, 'That's Sicilian,' and explained its meaning--which was that I could not care less. That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini's The Italians: 'The extended fingers of one hand moving slowly back and forth under the raised chin means: 'I couldn't care less. It's no business of mine. Count me out.'...How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line of her article: '"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged.' From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene--especially when made by an 'Italian jurist.' (I am, by the way, an American jurist.)" (370)

Clarence Thomas dispels the notion that Scalia does all the work for him in this book. He may often vote with Scalia, but he is actually more conservative. By far the juiciest part of the book details his confirmation hearings. Flying Houses tries to avoid gossip better suited to tabloids and this is old news anyways. Thomas is noteworthy for being especially quiet. He has not asked a question during oral arguments in years. Perhaps this gives the impression that he really does not like his job. He always votes against affirmative action, and hates it, though he himself is a beneficiary of it. He is probably the most controversial member of the Court. However, Toobin points out that he is also universally beloved, and extremely nice to everyone in the building. He makes a personal effort to know the names of the cafeteria workers. He befriends a lesbian couple and keeps the picture of one of them, a snowboarder, on his desk. He also occasionally gives interesting speeches.

"He had an understandable sensitivity to the common (and false) notion that he functioned as Scalia's pawn on the Court. This idea was absurd not least because the two justices' voting records were different, with Thomas well to the right of his senior colleague. What was notable, though, was that Thomas attributed this canard to racial, not political, bias. As he put it in a speech in Louisville, 'Because I'm black, it is said that Justice Scalia does my work for me. I understand how that works. But I rarely see him, so he must have a chip in my brain that tells me what to do.'" (126)

More egregious is the Media Research Center's annual dinner story:

"After speeches by Michael Reagan, the president's son and a talk show host, and Oliver North, also at the time a figure in right-wing radio, the climax of the evening came with the presentation of the 'I'm-a-Compassionate-Liberal-but-I-Wish-You-Were-Dead Award for Media Hatred of Conservatives.' This award was presented to an obscure columnist named Julianne Malveaux, for saying in a cable television interview about Thomas, 'I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do.' Thomas had been laughing so hard early in the evening that Evans, the MC, said to him, 'Justice Thomas, you are a great audience, too.' When Thomas stepped up to the microphone to 'accept' the award for Malveaux, he received a standing ovation. 'Thank you,' the justice said, still laughing. 'Normally, we are busy. This is a sitting week, so we have cases to decide tomorrow morning at 9:30, and I usually spend this night working. But we realized that this was such an important occasion that we decided it was time to put aside our personal obligations, the Constitution, the work of the Court, our little nephew, to attend...I am pleased to accept this award on behalf of Suzanne Malveaux.' Thomas had mixed up Suzanne, a CNN correspondent, with her distant cousin Julianne; both are African American women. As always, the confirmation hearings were never far from Thomas's mind. 'As I was listening to those awards, I was hoping that Nina Totenberg would also share in it,' he said. Totenberg, the NPR legal affairs correspondent, had played an important role in bringing Anita Hill's story to the public. 'I have finally had the opportunity to have my surgeon remove her many stilettos from my back, and I'd like to return them.'" (132)

By contrast there is very little interesting to say about either Breyer or Ginsburg. They are both liberals, both former law professors, and generally vote in a reasonable manner. Breyer is probably the most obscure member of the current Court. His expertise was in Administrative Law. He always likes to avoid conflicts and tries to make compromises with all of the other justices. He also really enjoys his work on the Court. He stays in good shape. Ginsburg, by contrast, seems annoyed most of the time. She writes very well, and has been extremely influential in the field of women's rights. However, if anyone watched the State of the Union Address last January and saw her basically face-forward asleep, it's clear she hates formal committments that have little meaning. Also, it's clear the work on the Court is not for the faint of heart. Who knows how they have the energy to deal with all that reading and writing? Ginsburg and Breyer were both nominated one after the other by Clinton (not unlike Roberts and Alito by Bush) in the wake of Byron White's and Harry Blackmun's retirements. Along with these two, Lewis Powell also figures somewhat prominently in this book as a friend and mentor to O'Connor, and the author of the Bakke opinion. The friendship between O'Connor and Breyer is also heavily emphasized. But really, most of what comes across in this book is the absolute mess that Clinton made in his search for replacement justices. It took an incredibly long period of time and he went through dozens of options.

This is one of my major complaints about the book. There is a very heavy focus on the "search" for replacement Supreme Court justices. Probably 50-75 pages of the text are taken up on this issue. Now, this will prove very useful to any reader (perhaps an 8th grader) that wants to set themselves up perfectly for an appointment (as apparently Roberts did). But to the rest of us it is just depressing. The lengthy background questionnaire you have to fill out is just scary. The scrutiny is unbelievable. However, Thomas managed to get confirmed despite his controversies, so maybe it's not all bad. Just so long as you can prove you're going to make the right vote, you should be fine. It also helps to have some experience as an actual judge.

We end this lengthy review with William Rehnquist, who, near the end of his tenure as Chief, stopped caring about the reasoning in the opinion and just cared about the votes. He thought that was all anybody cared about anyways, and the reasoning would get overruled eventually too, so who cares. He was meticulous when it came to being on time and keeping the Court efficient and organized. He knew O'Connor from their days at Stanford together. They were friends for 50 years. He was very conservative, but eventually, he stopped caring so much about the "cause" and arguably moved a tad towards the middle. His health problems are emphasized in the book:

"For a large, strapping man, Rehnquist had a delicate constitution. He had a chronically bad back, from an injury he sustained while gardening, and the pain would sometimes cause him to stand up during oral arguments at the Court and take a few steps behind his chair. In the early 1980s, he was even hospitalized for the back problems, and the treatment created new issues. The painkillers caused him to slur his words, and the problem became embarassingly noticeable when he asked questions in Court. The FBI investigation in connection with his promotion to chief justice revealed that Rehnquist's medical problems were more serious than the public was led to believe. He had been addicted to the sedative Placidyl for at least four years, and when he was hospitalized during his withdrawal from the medication in 1981, he suffered hallucinations. On one occasion, he told a nurse that 'Voices outside the room are saying they're going to kill the president.' Still, by the time he became chief, in 1986, his condition appears to have stabilized, in part because he took up tennis. Even though he was entitled to hire four law clerks, he generally took only three, which suited his weekly doubles game." (37-38)

The book came closest to bringing tears to my eyes during a particularly moving passage near the end of Rehnquist's tenure:

"In truth, Rehnquist was a tired old man in the spring of 2004. And he had grown cynical about the work of the Court. Over the years, his opinions had become more terse and cryptic because he had come to think that only the results, not how the justices explained them, really mattered. As Rehnquist told one colleague, who was shocked by the chief's gloom, 'Don't worry about the analysis and the principles in the case. Just make sure that the result is a good one this time around--because those principles you announce will be ignored in the next case." (276)

"In 2004, Stevens was eighty-four, the oldest among them, but he enjoyed robust health and no affinity for the president who would appoint his replacement. Rehnquist, closing in on eighty himself, was the most likely to leave. He had spoken candidly of his belief that justices should hand their seats to the party of the presidents who appointed them, and George W. Bush's conservatives politics reflected his own. But Rehnquist didn't want to retire. He was a widower who lived in a small town house in suburban Virginia. His three children were long grown. He liked his job and his colleagues. His health was satisfactory, if not robust. With his trademark directness, Rehnquist would point out the grim truth about retirees from the Supreme Court: all they did was die, usually sooner rather than later." (277)

I'll leave it there rather than spoil it any further, but I was quite shocked by Rehnquist's condition at the end of his time on the Court. I think I have said all I need to say about this book--except that it ends on a note of uncertainty--whether Obama or McCain would win in 2008. We know what happened, and we know Sotomayor and Kagan are now on the Court and that it is pretty much split down the middle with Kennedy. I read an article in the Tribune today about how both Clarence Thomas and Elena Kagan should recuse themselves from the Affordable Care Act decision. They cancel each other out anyways. The conservatives will fight tirelessly to get Kagan to recuse herself, and the liberals will fight (perhaps with less vigor) to get Thomas to recuse himself. "Politricks" at work to again....It makes me sick.

But if you care at all about politics, you owe it to yourself to read The Nine. I doubt you will be disappointed.