Round-Up
Sunday’s New York Times magazine features a cover story by Jeffrey Rosen on Justice Stevens entitled, “The Dissenter.” It includes a long personal biography, some of the Justice’s thoughts on his colleagues, and his reflections on controversial decisions, like Roe v. Wade.
Here’s another review of The Nine to add to the list: Michiko Katutani weighs in on the book for the New York Times book review, praising its lively and informative tone. Also, NPR offers this audio interview with the author, Jeffrey Toobin. On the blogs, Dorf On Law has a post about an incident recorded in Toobin’s book in which Justice Scalia may or may not have called Justice Thomas “a nut.”
Tony Mauro’s post on the Chief Justice’s reentry into the Stoneridge case is available here.
Orin Kerr comments on Tom’s post, “A True Rightward Turn?” at the Volokh Conspiracy.
Rosen closes his opening paragraph with, “According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000.”
This melodramatic statement is necessarily unfounded and unreliable and does a disservice to the Court for the sake of thematic exposition. First, Rosen’s assertion is misguided. Anyone who has witnessed the Justices’ interactions on a daily basis from inside the Court — and this includes every law clerk — would agree that their relations are unfailingly friendly and collegial. One would be hard-pressed to find a more genial working group of ideologically diffuse minds in the country (to say nothing of the other branches of government). Rosen is speaking in relative, not absolute, terms, of course, but employing phrases like “level of tension” and citing Bush v. Gore reeks of alarmism that is plainly unfounded.
Second, the very premise of Rosen’s assertion is flawed. Almost without exception, law clerks serve for one Term. How exactly, then, do they make longitudinal observations stretching across Terms — six Terms, in fact, if the comparison is to Bush v. Gore? Furthermore, any such conclusions are necessarily unreliable, as they would have to be based on hearsay from prior years’ clerks and be drawn through comparing intangible concepts like “level[s] of tension.”
Third, Rosen’s statement requires that he have interviewed an OT 2006 law clerk (ideally more than one, to provide a meaningful sample size); otherwise, he has no valid foundation for comparing past Terms to the most recent Term. Yet I find it exceedingly hard to believe that any OT 2006 law clerk spoke to Rosen, particularly given that such a clerk would almost certainly have had to do so while still working at the Court. Clerks are loath enough to speak to journalists, but the reluctance is even more pronounced the closer to one’s Term of service, and surely at its zenith while a clerk is still at the Court (if not a matter of ethical or professional obligation).
That Rosen resorts to unfounded and unreliable assertions in his opening paragraph, simply to advance the rhetoric of the piece, leads me to wonder about the accuracy and substantiation of the rest of the article, which is not what I would expect out of a Times Magazine cover story.
Comment by Sar Atchinson — September 21, 2007 @ 7:17 pm