Jeffrey Toobin’s new book, The Nine, is ostensibly about the secret world of the U.S. Supreme Court. It’s true that no institution is more mystified, reclusive, creepy, and high on the fumes of its own importance, and thus no institution more needs to be opened up to scrutiny. But how best to do that? The first wave of book reviews is full of sniping about that very question. And if you read them together as an oeuvre, you quickly discover that everyone seems to know exactly what’s wrong with Supreme Court reporting. They just all have a different idea about who’s to blame. And—surprise!—everyone seems to think that what the court beat needs more of is, well, people like them.
Toobin, New Yorker staff writer and CNN legal analyst, doesn’t cover the Supreme Court regularly. Instead, he parachutes in for big-think magazine articles and now for his book. He’s respectful of the regular press corps in The Nine in a couple of nice footnotes. The same isn’t true of David Margolick, a fellow parachuter who writes for Vanity Fair and reviews The Nine in this Sunday’s New York Times Book Review. Margolick more or less goes after all the beat reporters as slothful and compromised: Covering the justices critically “is dangerous: you risk losing whatever tiny chance you have that one of them will talk to you in a pinch or throw you an occasional crumb. So almost no one even tries. No other reporters are as passive as Supreme Court reporters.” The italics here are ours, because, ouch.
So, Margolick wants Toobin to do much, much better. He’s got the access—as Margolick points out. In this book, as in others about the Supreme Court, you can tell which justices talked most to the author based on which ones (in this case, Sandra Day O’Connor) are rendered most lovingly. Fair point. Although it contradicts Margolick’s first argument, about the virtue of Supreme Court reporters getting out to do more reporting. Here we have Toobin, off his duff reporting, burning bridges to the justices forever (in this case, Anthony Kennedy). And yet despite all the access, Margolick is forced to conclude that Toobin doesn’t have much fresh meat: “The greatest surprise is that there are few great surprises” because Toobin’s “buddies on the bench didn’t tell him much we don’t already know.” What’s Margolick’s diagnosis for why The Nine disappoints? Toobin didn’t talk to enough law clerks—which just happens to be how Margolick got a big scoop a few years ago about the infighting between the justices when deciding Bush v. Gore.
The Supreme Court insiders—by which we mean the regular and semiregular press corps—mostly tend to steer clear of reviewing other books about the court. For one thing, we don’t want to be seen criticizing friends and colleagues. For another, we all may be hoping that those same friends and colleagues will praise our own books someday. See, Mr. Margolick? We are hopelessly compromised in dozens of ways!
The brave few insiders who have commented on Toobin’s book so far have tended to report it as news. Here is where NPR’s Nina Totenberg gets points for pure bravery. In her review, she calls Toobin’s book “the best, in a line of books this year about the Supreme Court.” Of Jan Crawford Greenburg’s earlier book, Supreme Conflict, Totenberg writes, “it lacks the balance, substance, and context of Toobin’s book.” Jeff Rosen’s book The Supreme Court: The Personalities and Rivalries that Defined America “is an interesting history packed into a professorial thesis.” In Totenberg’s view, what the world needs in a Supreme Court book is a “good read.” That Greenburg’s came first, covers much of the same material as Toobin’s, and broke more news doesn’t redeem it in Totenberg’s view, because it lacks political balance and legal nuance.
In some sense, the small army of constitutional law professors across the land have always been a parallel Supreme Court press corps, with the job of reading the opinions as “law” rather than as politics. Of course, as Margolick observes, the professors are as hopelessly, if differently, compromised as the rest of us. Many of them clerked at the court, hope to have students clerk at the court, or hope to someday occupy a seat there. Still, their critiques of the court and the coverage of it offer great insight into what academics must hate about Supreme Court reporters. Our friend Garrett Epps, law professor at the University of Oregon, reviews The Nine in Salon and finds that Toobin too easily falls prey to nakedly political characterizations of the justices as “conservative” and “liberal.” As a result, Epps complains, Toobin’s book lacks both nuance and context. He’s with Totenberg on this point: What court watchers most need is less focus on left/right politics, and a surer sense of constitutional ebb and flow. But whereas she thinks Toobin’s got it, Epps thinks he doesn’t, which shows how “balance” is often in the eye of the beholder.
Then there is David Garrow, currently a senior fellow at the University of Cambridge and a frequent writer of legal books and articles in highbrow newspapers and magazines. (He’s sort of a hybrid academic-outsider.) Garrow practically sputters with rage while reviewing The Nine this week in the Los Angeles Times. He approvingly quotes Jan Crawford Greenburg (he’s definitely not with Totenberg here) complaining of “over-the-top hysteria” from liberal court commentators, aka Toobin. Then Garrow picks apart the book for factual flaws, swipes at Toobin for his “disdainful” treatment of some of the justices, and, like Epps, finds Toobin’s left-right frame for the court’s decision-making “far too shallow.” The law profs seem to see too much politics in legal reporting, although they can’t seem to agree on what “balance” might look like.
One of the oddest byproducts of the Internet has been the growth industry that is the Supreme Court gossip blog. These folks are less interested in the court as the place where Law Is Born, or where Politics Really Come From, and more fascinated by which clerks are sleeping with whom, and how much they earn while doing it. No blog has a better bead on those items than David Lat’s Above the Law. Sure, ATL invariably tends to reduce the entire sweep of modern constitutional history to a form of girl-on-girl Jell-O-wrestling. But then at bottom, what else is there?
Above the Law has thus tended to mine the Toobin book for its juicy personal nuggets—such as the claim that Justice David Souter wept and perhaps still weeps over Bush v. Gore. But the real problem with Supreme Court reporting in the eyes of ATL? We’re guessing that there’s not nearly enough hot hot hot catfights among the female court reporters!!
AND THEN THERE WAS US
Who do we blame for what’s wrong with Supreme Court reporting? The court. What we’ve learned from the recent wave of books and judicial speeches and interviews is that the Supreme Court can somehow manage to be super secretive and super boring all at the same time. Yes, reporters should be aggressive about challenging the justices, rather than corrupted by a struggle for access. And yes, someday, we hope someone will write another Brethren—an insider book that tells us all a lot of insane stuff we don’t already know. But at a time when clerks are practically asked to swear an oath of eternal secrecy, and the justices are presumably tired of the clamor for gossip, that’s hardly easy, or even likely. And so maybe the best we can hope for is pretty much the court coverage we currently enjoy: a press corps that reads and analyzes the law extremely well, and a collegial well-behaved court that doesn’t behave like Britney Spears, and so doesn’t need to be covered by TMZ.