Here's something you might not have known about the "strike zone" in baseball: It is literally different for every player in the game. No, really: It's even written in baseball's rulebook:
The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball.
Get that? A strike depends on a player's size and how he stands -- and then, only after that, on the umpire's perception of both. And, of course, that perception could be altered -- subtly but crucially -- by the umpire's size and how they stand. Short of computerized umping, then -- or surgery to cut every player and umpire to uniform size -- we'll forever be stuck with happy summertime arguments about the calling of balls and strikes. This, of course, wasn't what John Roberts had in mind when he used a baseball analogy to describe the job of U.S. Supreme Court judges: "Umpires don't make the rules; they apply them. ... It's my job to call balls and strikes and not to pitch or bat." But it was apt nonetheless, as demonstrated by Jeffrey Toobin's recent book, The Nine: Inside the Secret World of the Supreme Court a breezy overview of the court's last three decades. Alliances are made and perspectives shift: Anthony Kennedy changes his mind about abortion, twice. William Rehnquist spends his career disdaining the Miranda decision, only to acquiesce to it in his old age. Horse-trading abounds. The only exception: Antonin Scalia -- who, not incidentally, seems to have the least influence over his fellow judges.
These kinds of shifts wouldn't be possible, of course, if Supreme Court justices saw their jobs in purely technical terms and ignored the politics involved in their decisions. But that's clearly not the case, Toobin writes:
When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and (Ruth Bader) Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy -- ideology -- and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideologies that will shape the Court and thus the nation.
And for the time being, it is clearly a conservative ideology shaping the court and nation. Toobin explains how that happened, in a story familiar to court-watchers: The early 1980s saw the rise of the Federalist Society, a coalition of conservative lawyers and scholars who believed that judges "should defer to the democratic branches of government and thus resist the temptation to overturn statutes or veto the actions of government officials." In practice, that meant that public institutions -- schools, in particular -- gave more deference to religion, and to presidential claims of executive power in national security matters. Over time, Federalist Society members came not just to lead and dominate the Supreme Court (as in the case of Chief Justice John Roberts) but also the appellate judiciary, placed there by President Reagan and both Presidents Bush, with the Clinton presidency making little dent in their rising numbers. The ultimate goal, of course: To overturn Roe v. Wade -- a goal as yet unmet, but seemingly within reach.
The base of the Republican Party ... recognized that they could use their influence to shape the Court. They organized more, mobilized more, and cared more than their liberal counterparts. And when their candidate won the presidency, these conservatives demoanded more -- and pair of justices who were precisely to their liking (and the ejection of one nominee, Harriet Miers, who was not). With admirable candor, and even greater passion, conservatives have invested in the Court to advance their goals for the country.
But "The Nine," while it encompasses the rise of the conservative majority on the court, really isn't about that. Instead, it's an anecdotal and largely gossipy book that centers on personality profiles and short stories about how various critical decisions were reached, from 1992 onward. Two justices sit at the core of these stories: Sandra Day O'Connor and Anthony Kennedy.
O'Connor, of course, was the court's swing vote for much of her career -- a distinction gained not because of any particular judicial philosophy, Toobin explains, but in the absence of one. Instead, O'Connor figured out what result she wanted from a particular case, then figured out a rationale that could attract a majority of her fellow justices. This approach reached its apex toward the end of her career, when O'Connor authored the 2003 decision that saved affirmative action -- but suggested the practice should end with 25 years.
"The imposition of the time limit was O'Connor at her worst -- and her best," Toobin writes. "By what right does an unelected judge impose such detailed rules on a society? And if the practice will be unconstitutional in twenty-five years, why isn't it illegal now? ... On affirmative action, she picked a result, and reached a compromise, that was broadly acceptable to most Americans. ... Her judicial approach was indenfensible in theory and impeccable in practice."
With O'Connor's retirement, it was Kennedy who became the swing vote. And it is his evolution -- particularly on the topic of abortion -- that may most shape the court's immediate future. Kennedy, a Catholic, abhors abortion -- yet in 1992, on the Casey decision, he was persuaded to vote with a majority of justices to uphold the right of women to abortions. Toobin is at his best in this book when describing how Kennedy decided to support that decision, and never more frustrating when he glosses over Kennedy's apparent reversal -- more than a decade later -- to uphold restrictions on partial-birth abortion ... with the justification that some women probably regretted having abortions.
Toobin, a New Yorker writer, offers some good stories in "The Nine." But that's about it. The book is frustratingly incomplete if you're looking for much beyond well-informed gossip. It lets you know that the court is on the cusp of big changes to the rules that govern American life. But it offers little in the way of describing what those changes will look like, or what they will mean. All we're left with is a simple moral: The conservatives wanted it more.













Thoughts
Toobin's excellent insight
Submitted on March 19th, 2008 by Bull MooseJeffrey's book exposes the overated intellect of the Supreme Court. Remember Dred Scott,separate but equal,and other miscarriages of justice our esteemed Court has unleashed on the essence of justice.
Scalia's arrogance in rebuffing his integrity being called into question took the cake. The holier than thou Scalia might as well called himself infallible. How dare we mortals insinuate his friendship with Cheney would influence his decision on the Energy Task Force case before the Court.
The religious right has been trying to establish their theocracy for thirty odd years now, and with King George and Cheney trying to bolster the power of the Executive branch, the people who value the ideals of Tom Paine, Madison,Jefferson and the rest better wake up.
Sorry if this post twice, my kitty starled me and caused the mishap. My apologies.
Shockingly
Submitted on March 19th, 2008 by JoelI think I pretty much agree with Whelan entirely in those two paragraphs of assessment.
On the Nine
Submitted on March 19th, 2008 by Chuck_JohnsonI was one of the many Americans that was suckered into buying Jeffrey Toobin's The Nine.
If you want the straight skinny on all the problems with the gossip, look no further than Ed Whelan's review over at Bench Memos.
Here's his indictment of Toobin's book.
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Chuck Johnson is a student at Claremont McKenna College. Feel free to contact him.