Spotlight on the nation's highest court
David Souter, the famously reclusive Supreme Court justice, once warned that cameras would televise the most publicity shy branch of government's proceedings over his dead body. His fellow justices, however, appear more comfortable with public attention lately.
Most have sat down for television interviews and given public speeches in recent months. Chief Justice John G. Roberts Jr. has shown a particular willingness to lift the court's veil of mystery, releasing more same-day tape recordings of its oral arguments.
Authors of two new books on the court, journalist Jan Crawford Greenburg and law professor Jeffrey Rosen, have benefited from the court's greater openness – and so will their readers.
Greenburg, an ABC News legal reporter, interviewed nine justices for her book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, a close examination of the Supreme Court justices that explores how every justice appointed since Sandra Day O'Connor wound up on the court and how they've acted since they got there. (Only John Paul Stevens, appointed by President Gerald Ford, gets short shrift.)
She fills this meticulously reported and well-written book with rich detail not available in contemporary news accounts. Readers may feel as if they're in the room as the decisions are made since she seems to have interviewed every person involved in each nomination.
Greenburg scooped up every last detail of the nominations – down to the instant messages Justice Samuel A. Alito Jr.'s children exchanged on their computers after a White House official called looking for their dad.
You can hear conservatives self-flagellate themselves over the selection of Souter and Anthony Kennedy, source of the most disappointment among conservatives since President Eisenhower picked liberals Earl Warren and William J. Brennan Jr. in the 1950s.
Her book is generally sympathetic to conservatives and their worldview. Greenburg argues that Justice Clarence Thomas is wrongly caricatured as fellow conservative Antonin Scalia's puppet on the court. Instead, Greenburg suggests that it was often Thomas who won over Scalia to his side when he joined the court.
Kennedy is the one who comes off looking worst in this book. She skewers his indecision, "aura of pomposity," and what she views as absurd angling for the position of chief justice.
Greenburg offers particularly fresh insights about the two most recent selections. She explains why Sandra Day O'Connor surprised everyone by announcing her retirement in 2005 while William Rehnquist, the terminally ill chief justice, stayed on the court.
Greenburg suggests that Rehnquist essentially forced O'Connor, a close friend since their days together at Stanford Law School, off the court by saying he wanted to stay for another year and didn't want to have two vacancies in a single year. O'Connor, whose husband faced his own health problems, opted to leave rather than be forced into staying two years.
President Bush and his advisers began quietly preparing to fill vacancies on the court years before O'Connor announced her retirement. They carefully set up a vetting process designed to avoid the nomination of another Souter or Kennedy.
And yet, Bush circumvented that process to disastrous effect, nominating White House Counsel Harriet Miers in order to fulfill his goal of choosing a woman. Greenburg explains exactly why conservatives – and even administration officials – turned against her nomination with such force.
After the White House pulled the plug on Miers, she wound up helping to assure that Alito, her replacement and choice for the job from the beginning, took his place beside Roberts on the court.
In his new book, The Supreme Court: The Personalities and Rivalries that Defined America, Rosen offers an even broader history of the nation's highest court, well before O'Connor's arrival. He sets out to prove the importance of the temperaments of the various justices by looking back over past decades and focusing on pairs of justices and one president who served together during important periods in the court's history.
The result often feels like it's been stitched together from previously written biographies of justices rather than original research.
But Rosen's book does benefit from an extended on-the-record interview with Roberts, who lays out his vision as chief justice.
If that interview is any guide, Roberts' testimony during his confirmation hearing about the importance of judicial modesty was no act. Roberts praises justices, Rosen writes, "willing to put the good of the Court above their own ideological agendas." He wants less rancor and more unanimity and consensus.
"Politics are closely divided," Roberts tells Rosen. "The same with the Congress. There ought to be some sense of some stability [in the Court] if the government is not going to polarize completely."
Roberts' comments are well worth reading and likely to hearten anyone concerned about the partisanship – found in all three branches of government – that values ideology over institutional health.
However, given that Rosen's interview with Roberts is also excerpted in the Atlantic Monthly, most readers would be best advised to save a few dollars by buying only Greenburg's book and picking up a copy of the magazine.
• Seth Stern is a reporter for Congressional Quarterly in Washington D.C.