Footnote People

Like Bob Woodward and Scott Armstrong's The Brethren a generation ago, Jeffrey Toobin's The Nine gets some details about the Supreme Court and legal doctrine wrong, even as the big picture story it tells is deeply correct. It has been many years since I read The Brethren, and so I don't remember which details I thought were wrong, but I do remember thinking that the big picture view---the Court is led from the center---was clearly an accurate description of the Burger years.

I'm only part of the way into The Nine but already I've noticed some small details that are a bit off. For example, in his account of Planned Parenthood v. Casey, Toobin says that the standard Justice O'Connor had long advocated for judging abortion restrictions---whether they impose an "undue burden"---was adopted by the three-justice lead opinion. This is not entirely right. In previous cases, Justice O'Connor had used the term "undue burden" to refer to a threshold question. Here is what she said in her dissent (joined by Justices Rehnquist and White) in Akron v. Akron Center for Reproductive Rights:

The "undue burden" required in the abortion cases represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting "compelling state interest" standard.

By contrast, as Toobin acknowledges, in Casey, the plurality says that an "undue burden" is necessarily an unconstitutional burden. This is thus a more demanding test than the one O'Connor had earlier advocated under the same name---as should be clear from the fact that the two original Roe dissenters were willing to join O'Connor's dissenting opinion in Akron. Toobin's bigger point, of course, is correct: On abortion, as on so many of the questions that divided the Court during her tenure, Justice O'Connor held the balance of power.

Another small error in The Nine is Toobin's repetition of the familiar but false claim that as a lawyer for women's rights, Ruth Bader Ginsburg deliberately chose cases in which male plaintiffs complained about laws that disadvantaged men based on stereotypical assumptions about the proper sex roles of men and women. Justice Ginsburg has stated publicly that in fact that was not a deliberate strategy; it's just the way the cases happened to work out. I don't want to make too much of this error, which, as I noted, is common. Indeed, I myself had the misfortune of making the same mistaken claim about Ginsburg's legal strategy on a panel on which she was also a panelist, and she (gently) corrected me. But the main value added for lawyers of Toobin's book is his behind-the-scenes access rather than his legal analysis, and so one would have expected him to do his homework carefully in describing matters such as litigation strategy of lawyers turned justices.

Here too, though, Toobin is right about the big picture, which brings me to the title of this post, "footnote people." When Justice White retired in 1993, President Clinton made it known to his staff that he wanted to name a successor in the mode of Earl Warren, an experienced politician who would not only vote the right way but would be able to influence colleagues through force of personality. (John Marshall would have been another good example.) Toobin says that Clinton contrasted such a Justice with the Court as it was then (and now) largely composed: Former law professors and appellate judges with an interest and expertise in the law's minutiae but little feel for the grand sweep of the Court's role---in short, "footnote people." As Toobin recounts the story, Clinton only settled on Ginsburg after offering the position, and being rejected by Mario Cuomo, George Mitchell, and Richard Riley. (Cuomo waffled several times before finally backing out.) Even then, Clinton considered several others before finally settling on Ginsburg.

As Toobin recounts, during her meeting with the President, then-Judge Ginsburg talked about hardships she had faced early in life and how she tends to side with underdogs. More broadly, she demonstrated to Clinton that she had "a big heart." He ultimately nominated her with enthusiasm.

The episode is ironic because Justice Ginsburg could easily be characterized as a footnote person par excellence. A former civil procedure professor, she is nothing if not meticulous in her opinions, concurrences and dissents.

And that in turn leads me to one final anecdote. Last week, Yale Law Professor Akhil Amar and I were the guest speakers at a lunch of the judges of the Federal District Court for the Southern District of New York. During the course of the program, Amar noted how unusual it is that every current sitting Justice is a former federal appeals court judge. In the past, prominent politicians frequently made it to the Court. Tongue in cheek, Amar referred to the "judicialization" of the Supreme Court. I'm not sure whether Amar meant to decry this phenomenon or merely to note it, but to the extent that he was signaling agreement with President Clinton's denigration of the footnote people, I want to speak up in their defense.

Justice Ginsburg herself demonstrates that one can be a footnote person, while having a big heart and siding with the underdog. So did Justice Brandeis, perhaps the all-time master of federal jurisdiction, even as he was known for his liberal jurisprudence. The contrast between footnote people and big-hearted big-picture people is simply false. It unquestioningly accepts the politically conservative position that careful attention to legal detail is inconsistent with caring about the impact of the law on the lives of real people. Or as another footnote person with a big heart once said (here), "compassion need not be exiled from the province of judging."