"I was consistently struck by how much the Court did its work in a thoughtful, rational, process..."

"... exchanging written drafts and memos until as much rewriting had been done as was likely or possible."

Says Stephen Wermiel, who was given exclusive access to Justice Brennan's papers.

"Justice John Paul Stevens is the greatest Justice in Supreme Court history."

Argues Cliff Sloan, a partner at Skadden, Arps, Slate, Meagher, & Flom and a former Stevens law clerk. A key move in this argument is excluding the Chief Justices on the theory that they have extra powers so it's not a proper comparison. Then Sloan has 4 reasons:

First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals....

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.... [He] has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution....

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance....

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas....

Go to the link to see the cases Sloan discusses. I would note that in some of the cases, Stevens has had something akin to the superpower that Sloan used to exclude Chief Justices from the analysis. When the Chief Justice isn't in the majority, the most senior Justice in the majority decides who will write the opinion. As such, over the last 20 years, he's authored many of the important opinions where the liberal side of the Court had the majority. That he wrote the opinion on the side that Sloan prefers isn't the evidence of a personal stamp on the law that Sloan would have us think.

Once Sloan gets to identifying and excluding the the competition for greatest Justice, the argument falls badly apart. He has to really strain to minimize Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. He lost me here, but you've got to give Sloan credit for writing what would be a strong entry in a competition requiring an essay titled "Justice John Paul Stevens is the greatest Justice in Supreme Court history."

"Argument by impressionistic psychodrama."

I have a review of Jeffrey Toobin's "The Nine: Inside the Secret World of the Supreme Court" in the New York Sun.

ADDED: My main problem with the book is a general problem with popular writing about law (and politics and plenty of other serious subjects). To make it readable and entertaining, you forefront the people, not the ideas, you use a lot of colorful details, and, like a novelist, you make the details seem to express deep things about the characters. Within this rhetorical style, when there are any ideas or events to describe, they seem to arise from the depths of your characters.

Toobin describes Supreme Court cases like that, and because his book is entertaining and readable, many people will get their view of the Court from it. The material analyzing the actual arguments and opinions in the cases is cut way back, as if the author wrote with constant awareness of how little patience you would have for any legal analysis. This is understandable, up to a point. But this extreme minimization of the legal material allows for much sleight of hand, and like a novelist, you are led to take the point of view of some characters over others. He's really making an argument -- an "argument by impressionistic psychodrama."

You don't get to read how Chief Justice John Roberts analyzed the equal protection precedent in deciding that the Louisville and Seattle school integration cases and how Justice Breyer saw the same precedent in a different way. Instead you feel along with Justice Breyer: "Breyer's wan longing for stare decisis will stir few hearts," Toobin writes (at page 339). Wan longing! It reminds me of something Stephen Colbert said on the first episode of "The Colbert Report": "Anyone can read the news to you. I promise to feel the news at you." Anyone can explain the cases to you. Toobin feels the cases at us. And the reader, who's had his feeling massaged for 300+ pages, will read of Breyer's "wan longing" and think: I will be one of the few! My heart is stirred!

But you haven't been given the material to decide if the bad guys are really trashing the precedents. You're just accepting the viewpoint of the judges you've been felt at to think are the good ones. They feel sad, so it must be a calamity. "David Souter was shattered" (page 177), so Bush v. Gore was atrocious.

What is missing is the analytical substance that would let you decide for yourself. In the review, I write:

[H]uman individuals drive the law, as Mr. Toobin tells it. The story of Jay Sekulow, "a nice Jewish boy from Brooklyn" whose "ignorance" was "his best weapon," swells the 12-page chapter on the Supreme Court's religion cases, but there isn't a word about the Rehnquist Court's most important Free Exercise case, Employment Division v. Smith. Smith, written by the conservative Justice Scalia, said religion was not entitled to special exceptions from generally applicable laws. (You can't avoid the Controlled Substances Act, for example, by saying you need to use peyote in a religious rite.)

Smith doesn't fit the theory that the conservatives are out to favor religion or the proposition that the religion cases "usually come down simply to ‘What will Sandra do?'" Justice O'Connor opposed the doctrinal shift in Smith, as did the three most liberal justices: William Brennan, Thurgood Marshall, and Harry Blackmun. It was a liberal tenet that the Free Exercise Clause relieves religious practitioners from requirements the law imposes on everyone else. To bring up Smith would require Mr. Toobin to acknowledge that conservatives favor equality and liberals want to favor religion and that would mess up the narrative arc of his story.

There's something else in the religion chapter that I couldn't fit into the review. When Toobin writes that Jay Sekulow's "ignorance" was "his best weapon," he's portraying the lawyer as someone who bumbled into using the Free Speech Clause to win protection for religious activities. Toobin writes that Sekulow didn't realize that "cases involving religion were always argued under the Free Exercise Clause."

But a mere 3 pages earlier, he was praising Robert Jackson's 1943 opinion in West Virginia Board of Education v. Barnette -- the case that said schools couldn't force Jehovah's Witnesses to recite the Pledge of Allegiance. Toobin doesn't mention that Barnette is a free speech case and that Sekulow competently cited it.

(And what about all the cases based on the Establishment Clause? They involve religion, even if they aren't litigated by Jay Sekulow.)

The pop culture approach Toobin uses demands that the individual, not the case law, governs what happens. It's a little like the "great man" theory of history -- the inferior man theory of the law.

It is fun to read though. Jay Sekulow is "a nice Jewish boy from Brooklyn," who moved to Atlanta and out of laziness attended Atlanta Baptist College. There, accepting a challenge by a "Jesus freak" to take the Book of Isaiah seriously, he saw that the messiah must be Jesus and became one of the "Jew for Jesus." Etc. etc.... and that's why we have the recent cases that say it violates the Free Speech Clause to discriminate against the religious viewpoint.

It makes sense if you get caught up in the seductive pop culture reading that is "The Nine."

And another thing....

Writing about Barnette, Toobin enthuses about Justice Jackson's idealistic prose: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." But he makes Justice Kennedy seem foolish for his love of "drama and what he called 'the poetry of the law'" (page (147), "flowery language about the First Amendment" (page 167), and "Kennedyesque flourish like 'the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (page 223). But Toobin's not much different from everyone else there. Jackson had the knack for high-flown phrases, and Kennedy can't quite pull it off.

And I'm not completely opposed to pop culture writing about law. I do it too, and I follow my own standards of fairness. Like I think it's fair to tweak Toobin for making a big deal out of Kennedy's glasses -- how he changed from "seventies-style steel-framed aviators" to "a Euro-chic frameless model." This supposedly symbolized how much Kennedy is soaking up the influence of Europeans and European law as he travels to various conferences. What I find so hilarious is that on the back cover of the book jacket -- where there aren't any words at all, just a big picture of the smiling Jeffrey Toobin -- he's wearing rimless glasses. Meaningful!

(And aren't steel-framed aviator glasses in style right now?)

Are dissenting opinions vanity or dishonesty?

Tony Mauro has an interview with Supreme Court Justice Samuel Alito:

Alito ... commented on Roberts' efforts to achieve greater unanimity on the Court, even at the expense of making broad rulings. Alito thinks there is merit in the idea, and says Roberts has already "worked to prevent fractured opinions." But Alito says Roberts has not made the pitch for unanimity to the justices as a group. For his part, Alito says, "I don't feel too strongly about writing separate opinions."

But he says Roberts' campaign points up a problem that any appellate judge "struggles with," namely, how far to go in compromising in the interest of unanimity and giving clear guidance, without crossing the line into endorsing "something you don't believe in."

Alito recalled that in his early days as a judge on the 3rd Circuit, he heard a judge -- whose name he can't recall -- lecture on the evils of writing dissents. "He said it was nothing but vanity, and that it didn't achieve anything. That's one side of it."

Aw, come on, who was it?

The other side, which Alito worries about, is the dishonesty of signing onto an opinion with which you disagree.

"I think of the analogy of someone coming to your door and asking you to sign a petition," says Alito. "You say no, you don't agree with it, and the person at your door says, ‘Sign it anyway.'"

So, dissenting opinions: vanity or dishonesty? I think it's somewhere in between. It's not really dishonest to sign on even though you disagree. Once a majority of the Justices have one opinion, it will be the precedent in future cases, and you'll cite it and follow it then. What difference does it make if you start following it before it issues? Should you always do that then? Should we agree with the unnamed Third Circuit judge who said that dissenting opinions were nothing but vanity? I'd say that is going too far, but reading dissenting opinions, you can encounter a lot of unseemly preening. Still, there is an important place for dissent:

Justice William J. Brennan, Jr., published an article in the January 1986 Hastings Law Journal, “In Defense of Dissents,” confessing that when he first came to the U.S. Supreme Court, he did not write a single dissent, although 42 of the 56 opinions he authored in 1985 were just that. So why dissent?

After all, the law is made by those who command the majority, not the outsiders. Even Justice Oliver Wendell Holmes, the "Great Dissenter" at one point opined that dissents are generally "useless" and "undesirable." Justice Potter Stewart labeled dissents "subversive literature."

But by the time he wrote the article Justice Brennan was a true believer in the power of dissent. In this way flaws are demonstrated in the majority’s legal analysis, thereby laying the basis for future corrective action. And a dissent holds the majority accountable for the rationale and consequences of its decision. "At the heart of that function is the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side."

Too much antagonism toward dissent -- in judicial opinions and elsewhere -- betrays a fear that one's arguments are flawed. But that doesn't apply to what Chief Justice Roberts has talked about, which is simply narrowing the scope of the decision to the point where it can eliminate the disagreement.

How Brennan and, later, Breyer affected O'Connor.

From Cliff Sloan's piece in Slate about Joan Biskupic's new biography of Justice O'Connor:

[S]ome of [what is in the book] is new—an apparent rivalry between liberal lion William Brennan and O'Connor for influence on the court, and Brennan's clumsiness in his maneuvers; the effectiveness of Justice Stephen Breyer in reaching out to her. With Potter Stewart's departure in 1981 and O'Connor's replacement of him, Brennan seemed to have lost an important occasional ally. He viewed his new colleague with suspicion, and—though he is often thought of as the consummate court politician—he made the same mistake that Scalia would make several years later: He caustically attacked her, and if anything seems to have driven her away. Brennan's approach to cases became particularly arch and unyielding in his later years, and even when he had O'Connor's vote he could not get her to join his opinions. Breyer's style would prove far more hospitable to O'Connor than Brennan's broadsides; like her, he was attuned to the particularities of each case and searched for common ground.

The subject of the relationships among the justices and the effect on the decisions is highly interesting -- and exceedingly hard to study.

"So many of the brightest stars in the conservative legal firmament are Catholics."

WaPo's Alan Cooperman explains why, in recent years, so many Catholics have been chosen for the Supreme Court. (Samuel Alito will be the fifth Catholic on the Court.)

[USC Political Science professor Howard] Gillman believes that beginning in the 1960s, many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," particularly on abortion, funding for parochial schools and restrictions on religion in public places. "I think you're seeing the fruits of those efforts now," he said.

Bernard Dobranski, dean of Ave Maria School of Law, a Catholic institution founded in 2000 in Ann Arbor, Mich., said the number of highly qualified conservative Catholic lawyers is also a tribute to the strength of Catholic schools, the determination of immigrants to educate their children and a rich tradition of legal scholarship in the Catholic Church.

A hallmark of that tradition is the belief in "natural law," a basic set of moral principles that the church says is written in the hearts of all people and true for all societies. Though long out of favor in secular law schools, the natural law approach is resurgent among conservatives, Dobranski said.

Another reason for the prominence of Catholics in conservative legal circles is that many have graduated from Ivy League colleges and law schools. Attending those schools has practically been a prerequisite for the clerkships that launch high-flying legal careers.

Evangelical Protestants are also becoming more visible on Ivy League campuses and at top law schools. But, said Notre Dame's Bradley, "I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the 'natural law' thing."

Interesting. The article also notes that Justice William Brennan, the Court's last passionate liberal, was also Catholic. Liberals are missing something if they lose the sense that rights are real and substantial. As I listen to the attacks on Judge Alito, I hear, relentlessly expressed, the idea that law is political and judges are all ideologues who, given power, will work their will on us. Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion ?

Let's try shaming first.

John Fund has a Wall Street Journal editorial arguing for term limits for Supreme Court Justices:

A seat on the high court is now so powerful and so heady that many justices stay long past their prime. Legal scholars have concluded that half of the last 10 retirees have been too feeble or inattentive to fully participate in the work of the court.

The secrecy that shrouds the high court can also allow someone to turn his chamber into a nursing home, as William O. Douglas did in the 1970s. He was so determined to hang on until a new president could appoint someone philosophically compatible with him that he refused to leave after an incapacitating stroke. This is not only irresponsible, but for, say, a liberal justice hanging on through a series of Republican presidents, it is directly at odds with the preferences of the electorate. In Douglas's case, his colleagues were so concerned that they informally agreed that during the last year of his service none of the court's decisions would be valid if his was the deciding vote. They finally pressured him to resign in 1975. A weakened Thurgood Marshall often looked to his fellow octogenarian William Brennan on how to vote because he no longer could hear well enough to understand the arguments other justices made during their conferences.

Fund makes a strong argument. (Read the whole thing.) But he does not address how term limits would affect presidential campaigns. We'd know which Justices were slated to leave in the upcoming presidential term. As it is now, we just engage in a guessing game, saying things that are often ridiculously off-base. (In the 2000 campaign we were told the next President would probably get three appointments, but in fact, he got zero.) Maybe the people voting for President should know which Justices are coming up for replacement. And there is something unseemly about the Justices -- supposedly aloof from politics -- timing their retirements to try to control the ideology of the next occupant of their seat.

But I still resist changing the Constitution, and even if I didn't, I'm realistic enough to know how incredibly difficult it is to amend. A more moderate approach, which I want to recommend, is shaming.

While we do criticize Justices for their opinions, we hold back from criticizing them for clinging to their seats too long. I think we may be observing the general social norm that frowns on age discrimination and accommodates disability. But maybe we ought to set aside that generality and get specific about Supreme Court Justices: they wield immense power and they cling to it. Why don't we talk about that? Why don't we shame them for staying too long?

We don't spare the criticism for other persons who tighten their grip on power. Before we try to amend the Constitution, let's try shaming. I think the Justices are vulnerable to our criticism. Much as they may love their power, they must also love our good opinion. They must want to be remembered as great Justices. But insulated on the Court, surrounded by respectful admirers -- should I say sycophants? -- they may need to hear stronger voices from the rest of us. Why don't we put aside our stock politeness and say more clearly and more often that it is wrong to hold your seats too long and wrong to let too many years pass without giving the President a chance to appoint someone new.

I'll leave you with this passage from Bill Maher's book "New Rules":

New Rule

Just because you have a job for life doesn't mean you have to do it for life. It's well and proper that we venerate our elders -- but give it a freakin' rest....

Now, I know it must be hard to give up your job when your job is literally sitting on a throne, or being on a "supreme" court, or keeping women out of the priesthood to make room for the gays -- but at some point it starts to look like you think of yourself as indispensible, and no one is indispensible, including you, the late Mr. Infallible...

[T]here's a reason that names like Cary Grant, Joe DiMaggio, and Johnny Carson inspire a special kind of awe: They all did something that made them more beloved than anyone else -- they left before we got sick of them.

The dreaded Justice Kennedy.

Here's a front-page NYT piece on Justice Kennedy, whose nomination to the Court was sold to conservatives as "Bork without the beard" and who, 18 years laters, has conservatives fuming about impeaching him.

For more than a decade, Justice Kennedy has infuriated the right, writing decisions in cases that struck down prayer at public school graduations, upheld abortion rights, gave constitutional protections to pornography and gay sex and banned the death penalty for juveniles.

With talk of a possible court resignation to follow the term that ends Monday, Justice Kennedy is looming in many conservatives' minds as just the kind of painful mistake they hope President Bush avoids. Showing few sharp edges in life or in law, the justice emerged as a consensus third choice, after President Ronald Reagan's first two selections failed. Demanding more ideological clarity in what could be the first Republican selection in 14 years, the right is now mobilized with a cry: "No more Tony Kennedys."

I thought the cry was "No more Souters." But Souter, appointed by the first President Bush, veered all the way to the liberal side of the Court. Kennedy just took up the middle position. It's not enough, I suppose, to avoid a Souter. You've got to avoid a Kennedy.

I tend to think that if O'Connor retires, vacating one of the center spots, the new Justice will feel drawn to play the centrist role -- and if he does not, someone else will move toward the center. There's a certain small group dynamic going on here.

But there is a more pervasive problem that has dogged conservatives over the years:

Ever since the elevation of Earl Warren, Republican presidents have picked justices who disappoint the Republican faithful: William J. Brennan Jr. (President Dwight D. Eisenhower), Harry A. Blackmun (President Richard M. Nixon), John Paul Stevens (President Gerald R. Ford), Sandra Day O'Connor (President Reagan) and David H. Souter (the first President Bush).

One result is rage at what [rejected Reagan nominee Robert] Bork sees as subverted democracy. Even though Republicans keep winning elections, he said, the court "can say that the majority may not rule" in areas where permissiveness reigns, including abortion, gay rights and pornography. Calling most justices "judicial oligarchs," Mr. Bork said they reflected "the intelligentsia's attitude, which is to the cultural left of the American people."

Some conservatives blame the judicial selection pool, which is largely confined to graduates of elite law schools that they describe as liberal (Justice Kennedy studied law at Harvard). Some say the Senate confirmation process weeds out strong conservatives. Many critics argue that justices drift left after reaching the court, in the hopes of pleasing "liberal elites."

Much more in the article about Kennedy. And much more carping by Bork.

Myself, I like Justice Kennedy. He's a moderate who takes some strong positions on individual liberty.