Of humans in black robes

I wasn't aware of Jeffrey Toobin until the night last June when Barack Obama clinched the Democratic nomination -- and John McCain delivered one of the most inept political performances ever, speaking in front of a green wall to what appeared to be a tiny number of retired white people in Louisiana. McCain was off-key, unable to read the teleprompter, generally pathetic. On CNN, Anderson Cooper asked a panel of analysts what they thought. The one identified as Toobin was beside himself:

What about that McCain speech? That was awful. That was pathetic. He looked awful, he was cata .... That was one of the worst speeches that I've seen him give.

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Such flabbergasted authenticity on cable TV made the guy a stand out for me, so I decided to find out what he had written.

Apparently I'd been skimming his legal articles for years. He's a legal writer for the New Yorker. And Jeffrey Toobin is also the author of The Nine: Inside the Secret World of the Supreme Court, a gossipy story of the Rehnquist era (roughly 1971-2007). The book is great fun. Toobin has collected lots of humanizing anecdotes about these justices, some of the most powerful of our rulers, yet also the most insulated from public scrutiny. Apparently there are human beings under those black robes: intelligent yes, but also often vain, sometimes curious, frequently prickly.

Toobin is good at explaining the cases this judicial menagerie ruled on. He not only makes the legal issues intelligible, he also excels at providing the context that influenced decisions. For example, we still have (so far) some affirmative action in higher education because, in cases from Michigan, the military filed briefs supporting the practice -- and the case was decided when military prestige was at its height in the days just after the Iraq invasion. He suspects those arguments might have lost a lot of force after Iraq turned into a quagmire. Similarly, he suggests that in 2003 when the court reversed its own merely 17-year-old decision that homosexuals had no right to private sexual conduct, justices simply had come to have a more cosmopolitan (and contemporary) understanding of sexual orientation through exposure to the culture of their law clerks.

In preparing to write about The Nine, I was surprised that a couple of reviews I encountered were dismissive of Toobin's book, charging him essentially with cozying up to his Justice sources and therefore going easy on them. I'd prefer to name his descriptions of the considerable foibles of the justices simply "kind." We don't usually remember that people with the power that Supreme Court justices wield are nonetheless also simply human. Toobin seems to consistently remember this and it informs this otherwise dry legal story.

In retrospect, this quality of Toobin's writing points up what I sensed that night last June when I watched the guy react to McCain: this is not someone who routinely trashes people. He really was astonished by the feeble McCain we all saw but few commentators who would need continued access and credibility would dare to call out.