Two political ironies underscore Jeffrey Toobin’s interesting new account of how personnel changes have changed the Supreme Court over the past two decades.
One is that, at the very time the Republican Party’s four-decade ascendancy shows signs of abating, President Bush’s appointments of Justices John Roberts and Samuel Alito have enabled conservatives to achieve their long-sought goal of a firm court majority.
Secondly, for all the GOP’s advocacy of judicial restraint and its criticism of judges who legislate from the bench, the Republican-appointed majority represents what the author terms “a new kind of judicial activism” that threatens long-established rulings in crucial areas such as abortion and affirmative action.
Toobin, a veteran court analyst for The New Yorker magazine and CNN, says this represents the increasing influence of the nation’s ideological politics on the court. Though he concludes that “this is as it should be” in a democracy, his criticisms of individual justices suggest he is not a big fan of the change.
For example, while he praises Roberts’ intellect and ability, he pointedly dismisses his suggestion during confirmation hearings that he favors a philosophy of restraint.
“Judges are like umpires,” Roberts said. “Umpires don’t make the rules; they apply them.”
“None of this is true,” Toobin says. “When it comes to the core of the court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases.”
As a result, he concludes, when the court considers specific cases, “what matters is not the quality of the arguments but the identity of the justices.” That means that the outcome of presidential elections is, and will continue to be, the most crucial factor in shaping the outcome of future constitutional cases.
That will be especially true next year because, as Toobin notes, the justices most likely to leave in the near future are all members of its more liberal wing: John Paul Stevens, David Souter and Ruth Bader Ginsburg.
Aside from showing the increasing role of ideology in determining the court’s course, Toobin’s principal contribution is the way he brings the individual members of the court alive as people in describing their roles, notably the two main swing votes of recent years, former Justice Sandra Day O’Connor and Justice Anthony Kennedy.
O’Connor, President Ronald Reagan’s first court nominee, became an increasingly independent voice on the court, in part because of her inherent instinct for the political center but also because of her negative reaction to the rightward tilt of the Bush presidency she helped to install by her vote in the case that resolved the 2000 election.
Similarly, Kennedy, whom he describes as having “a usually predictable, if intellectually incoherent collection of views,” was so successful in seeking out a decisive role in a closely divided court that, in the 2006-07 term, he was in the majority of every one of the 24 cases that were settled by a 5-to-4 vote.
Toobin notes that, at times and in varying degrees, the cloistered life of most justices has led them to some unrealistic judgments about the political world around them.
When the court decided that Paula Jones’ sexual harassment suit against President Bill Clinton could proceed, Stevens wrote that “it appears to us highly unlikely to occupy any substantial part” of the president’s time. And on the eve of the 2000 presidential election, Souter told his law clerks: “This is going to be a very boring year.”
But if the justices themselves made some poor predictions, Toobin concludes that, because of the increased role of ideology, it is becoming much easier to predict how they will vote. “The days when justices surprised the presidents who appointed them are over,” he writes. He notes that Souter’s past pre-court record clearly stamped him as a moderate, and even Kennedy’s course was foreshadowed because he was named after the rejection of the far more conservative Robert Bork.