January 23, 2007


Breaking silence and legal ground: a review of Supreme Conflict The Inside Story of the Struggle for Control of the United States Supreme Court by Jan Crawford Greenburg (David J. Garrow, January 23, 2007, LA Times)

[A]BC News reporter Jan Crawford Greenburg's account of what's been happening at the U.S. Supreme Court in recent years is the richest and most impressive journalistic look at the panel since Woodward co-wrote "The Brethren" in 1979. [...]

There are so many standout stories in "Supreme Conflict" that the book is an absolute must-read for anyone interested in the court. Take Bush vs. Gore, the 5-to-4 decision that resolved the 2000 presidential election. O'Connor told Greenburg that the Florida Supreme Court, whose approval of a partial recount had left the outcome up for grabs, was "off on a trip of its own."

Kennedy was even more outspoken. "A no brainer! A state court deciding a federal constitutional issue about the presidential election?" he exclaimed when Greenburg asked why the justices decided to step in. "Of course you take the case." Alluding to Democratic candidate Al Gore's initial challenge to the Florida tally, Kennedy added that "it would be odd if the people that brought the litigation would later say the courts shouldn't intervene." O'Connor admitted to Greenburg that the written opinion was not "the Court's best effort" and that "given more time, I think we probably would've done better" in explaining the decision, but "it wouldn't have changed the result." Kennedy too told Greenburg that "the problem with Bush v. Gore was that it came so fast, it had to be decided so fast," although "conceptually, it was a case of medium difficulty" and no more. Greenburg's portrayals of O'Connor's and Thomas' experiences on the court break significant new ground. Soon after O'Connor joined the panel in 1981, liberal icon William J. Brennan Jr. criticized her reasoning in language she found personally offensive. The most pointed remarks were penned by Brennan's law clerks, but their off-putting effect, Greenburg argues, "helped keep the Court's first female justice in the conservative camp longer than she might have been otherwise." O'Connor's move to the center accelerated when Thomas joined the Court in 1991. Although some analysts and pundits disparagingly characterized Thomas as Scalia's "intellectual understudy," Greenburg dismisses those claims as "grossly inaccurate" and describes how Thomas "acted independently of Scalia right from the start."

In persuasive and highly readable detail, Greenburg traces how Thomas, from his first case, "acted as a catalyst, spurring the other justices -- O'Connor, in particular -- to rethink their positions and realign themselves." In that initial case, Thomas hesitantly voted in lone dissent, but then Scalia, Kennedy and the late Chief Justice William H. Rehnquist changed their votes to side with Thomas. In a second case a few days later, Scalia again "changed his vote to join Thomas," as he also did "on several other occasions" during Thomas' first year.

Far from being anyone's follower, Thomas' forceful intellect served to "reshape the Court" in unexpected ways. Just as O'Connor earlier had shied away from moving leftward because of Brennan, Thomas' starkly conservative views "actually pushed moderates like O'Connor further to the left" during the 1990s.

One of the President's key insights was that to influence the direction of the Court it is more effective to add collegial figures like Harriet Miers, instead of merely adding more ideologues who will fiercely defend their own peculiar views even against each other. He appears to have struck gold with John Roberts.

Posted by Orrin Judd at January 23, 2007 9:03 AM

One side effect of the ultra-nasty confirmation process is that, for SCOTUS candidates who survive the gauntlet, it tends to clarify and solidify their conservative worldview.

Posted by: Gideon at January 23, 2007 9:46 AM

Every one of the justices confirmed since it got nasty, with the exception of Clarence Thomas, disprove the rule.

Posted by: oj at January 23, 2007 11:50 AM

You realize that you're pretty much the only person on the planet who thinks Meirs was qualified by either training, experience, education or intellect to be a SC justice.

Don't you ever get lonely?

Posted by: dna at January 24, 2007 9:44 AM

She's the top attorney in the country. She's the only recent White House Counsel folks have ever claimed wasn't qualified to be a Justice. It's just sexism, Christophobia, and Ivy elitism.

No one who's ever worked in a judicial chambers thinks it's a hard job.

Posted by: oj at January 24, 2007 10:33 AM

"top attorney in the country"

What exactly do you mean by this?


Gee, that explains why there has never been a woman SC justice. No wait...


Gee, that explains why there has never been a Christian SC justice. No wait...

"Ivy elitism"

Gee, that explains why there has never been a Ivy Leaguer SC justice. No wait...

"No one who's ever worked in a judicial chambers thinks it's a hard job."

If that were true and SC justices require nothing in the way of legal experience and competence then she was a perfect choice. As it is, the job is important, and shouldn't be given to the incompetent. She was Bush's equivalent of Caligula's horse.

Just be a man and admit she was a stupid and embarassing choice. Just a bone thrown to the Fundies by Rove.

Which of course is the real reason you wanted her, not because she was the top attorney in the country.

Posted by: dna at January 24, 2007 11:35 AM

The following should have read:

Gee, that explains why there has never been a non-Ivy Leaguer SC justice. No wait...

Posted by: dna at January 24, 2007 11:38 AM

Careful, you're stumbling towards an insight. When was the last time the Senate confirmed a Justice who didn't attend an Ivy?

Posted by: oj at January 24, 2007 12:09 PM

Counsel to the President is the most powerful lawyer in the world.

She's the lawyer who W knows will vote to overturn Roe. Everyone else is a pig in a poke.

Posted by: oj at January 24, 2007 12:11 PM