What is a boat? This will be an actual, serious question tomorrow, the first Monday in October, the day the Supreme Court traditionally starts its new term. With Supreme Court cases, we tend to think of the earthquakes — Brown v. Board of Education, Miranda, Roe v. Wade — but, in truth, very few bob up from judicial obscurity. The press finds most cases dull. There’s no fresh meat controversy; in fact, up to half of all decisions are unanimous, and most avoid the fractious 5-4 split we assume is set in stone.
Such is the boat case. It’s small potatoes, fairly arcane, yet emblematic of the Supreme Court docket. Lozman v. City of Riviera Beach offers up a rich guy whose houseboat was towed away by this Florida city after he disobeyed eviction orders; the marina was slated for development. Lozman claims his “floating home” is not a vessel (can’t steer it, can’t navigate it) and thus not subject to maritime law, and thus was towed illegally. Boat? Not-boat? In the 19th century, the Supreme Court spent much of its time on admiralty law. The more things change . . .
Then again, many swear the Court has changed drastically. The reason? Profound politicization. In June, a New York Times/CBS News poll had 76 percent saying the justices’ decisions are sometimes influenced by their political or personal views. And the Supreme Court’s approval rating is down to 44 percent; it hit 66 percent in the 1980s.
This plunge, its past and present, drives the work of Jeffrey Toobin, the New Yorker staff writer and CNN analyst (and college chum of Elena Kagan). His latest book, the buzz-worthy “The Oath: The Obama White House and the Supreme Court” (Doubleday, 2012) takes us from Chief Justice John Roberts’ flubbed oath of office at Obama’s inaugural to when Roberts sided, shockingly, with the court’s four liberals to uphold the Affordable Care Act. Toobin knows this turf. After all, he spent a decade with “nine scorpions in a bottle,” as Oliver Wendell Holmes described our third branch of government. First, there was his “Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election” (Random House, 2002) which culminated with the Supreme Court’s Bush v. Gore decision. Therein, he revealed that a devastated David Souter “thought the majority was engaged in a deeply illegitimate exercise.”
Next came his bestselling “The Nine: Inside the Secret World of the Supreme Court” (Anchor, 2007). It chronicled the latest heave from mainstream conservatism (William Rehnquist, Sandra Day O’Connor) to hardcore originalist conservatism (John G. Roberts and Samuel Alito, who replaced Rehnquist and O’Connor, and joined Antonin Scalia and Clarence Thomas). Throughout, Toobin seems smitten by O’Connor—it’s clear she gave him great access — and the narrative repeatedly spikes on her growing alienation from the Republican party.
“The Nine,” in turn, hiked the trail cut by “The Brethren: Inside the Supreme Court” (Simon and Schuster, 1979) by the estimable Washington Post reporters Bob Woodward and Scott Armstrong. It was the first book to shed light on this most opaque of institutions where, because the judges are appointed for life and don’t face re-election, there’s scant incentive to curry the press. The book traces the left-to-right arc of the court under Warren Burger and then William Rehnquist. It also boasts amazing stuff on Thurgood Marshall whom was sometimes, due to his race, mistaken by court visitors for the elevator man. Marshall also liked to needle Burger by calling out “What’s shakin’, Chiefy baby!” Wow.
Keep that in mind as the 2012-2013 term slogs on, for there will likely be reconsiderations of affirmative action and voting rights, plus another potential earthquake: a federal decision on same-sex marriage. Will these Supreme Court opinions mirror the nation’s? That’s the evergreen question that informs the awfully good “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution” (Farrar, Straus, Giroux, 2009). Author Barry Friedman, a constitutional lawyer, believes the court does reflect the country. But — and it’s a big but — only over time. Sometimes sooner, sometimes later.
To that end, the book opens with a recap of Franklin D. Roosevelt’s infamous “court-packing” scheme. When the Supreme Court continually shot down his New Deal programs, he tried to force retirement of current justices and stuff the court with his own nominees. At one point, FDR lobbied for bumping the court up to 15 judges. He jumped the shark with that, and Congress said no. But only after the judges reversed and voted yes to the New Deal laws. They came around because the country wanted them to.
Friedman chronicles other court-and-country dynamics, including cases on slavery and Native American rights. And he’s particularly incisive on the Warren Court, which first widened the rights of criminal defendants (its Miranda ruling came out in 1966) only to narrow them as Nixon’s law-and-order campaign gained ground.
John Paul Stevens, then a Chicago lawyer, argued an antitrust case before the Warren Court, and went on to serve 35 years as a justice (the third-longest tenure in court history). In 2010, he was succeeded by Elena Kagan. There have been many Supreme Court memoirs, but I can safely say his is the most self-effacing. The title itself is other-directed: “Five Chiefs: A Supreme Court Memoir” (Little, Brown, 2011). And it seems to pain the old-school, bow-tied Stevens that, in order to understand his connection to the chiefs, “some autobiographical comments must be tolerated.”
I’ll paraphrase him on several justices, then. Burger: vain, petty, somewhat slipshod, especially in how he assigned opinions. Rehnquist: fair but curt, and Stevens hated how he pompously added gold stripes to his chief’s robe. Roberts: smart, and combines the best qualities of the former chiefs (and skips the stripes). Stevens can also be winningly wry. To explain his votes to the other justices, which included liberal William Brennan and conservative William Rehnquist, he liked to begin “I agree with Bill.”
Justice Stevens also marvels at the intimacy of the courtroom itself, in which the lectern and the bench are only six feet apart. That intimacy carries over into “The Supreme Court: A C-Span Book Featuring the Justices in Their Own Words” (PublicAffairs, 2010). It’s a transcript of a TV documentary, initially focused on the Supreme Court building itself. But editors Brian Lamb, Susan Swain, and Mark Farkas managed to coax all nine judges, as well as other staffers, into chatting far beyond architecture.
The result is charmingly voyeuristic. You learn nuggets like this: John Roberts finds the days with oral arguments “exhilarating.” Everyone jokingly calls the rooftop basketball court “the highest court in the land.” The Lawyers Lounge, where attorneys do last-minute prep, is stocked with cough drops and aspirin. William Suter, the Clerk of the Supreme Court, was in Army basic training with Elvis Presley. And the justices all shake hands just before entering the court. As Justice O’Connor says, “If you take someone’s hand and shake it, you’re much less likely, I think, to hold a grudge.”
C-Span’s editors also ask a question I’ve always wondered about: Do the justices ever come into court convinced how they’ll vote, but change their mind while listening? “All the time,” says Roberts. So go to www.supremecourt.gov late afternoon tomorrow, and click on Argument Transcripts. Then read how nine supremely powerful people, all part of our ship of state, define a boat.Katharine Whittemore is a freelance writer based in Northampton. She can be reached at katharine.whittemore@ comcast.net.