Eminent Domain

Over the weekend, I plowed through Jan Crawford Greenburg's book Supreme Conflict. I'm a step behind much of the legal blog world, but hey I have a social life. Most law bloggers that have read the book have given it rave reviews. I gladly join that chorus. The book tells the story about the modern battle for control of the Supreme Court. It tracks Supreme Court politics and history from O'Connor to Alito, focusing on the nominee selection process within the White House and the internal Court dynamics. I'd recommend it to anyone with an interest in the Supreme Court.

In the future, I'm sure that I will refer back to the book when discussing the Court, just as I have referred to The Brethren and A Court Divided. Right now, I'd like to focus on a review of the book that I saw linked on How Appealing. Edward Lazarus isn't exactly kind to Greenburg's book. I'm sure that has nothing to do with the fact that Supreme Conflict has received more attention than Lazarus' book, Closed Chambers. Nothing at all. Here's some of his criticism...

Greenburg's book comes hyped as the latest iteration of The Brethren, the 1979 book by Bob Woodward and Scott Armstrong that was the first to crack the court's locked-up and buttoned-down culture. Greenburg interviewed nine justices for her book, no mean feat. The problem is that they don't seem to have told her anything very enlightening. The story she tells about the modern court—with the important exception of her view of Clarence Thomas—is familiar to anyone who follows the court.

I don't agree with this at all. If Lazarus knew about the Rehnquist-O'Connor retirement dynamic, I don't remember him talking about it. In the book, Greenburg discusses the end of the 2004 term. Earlier, Rehnquist and O'Connor had discussed retirement in general. Rehnquist said that the Court didn't need two vacancies at the same time. O'Connor went to Rehnquist and told him about her desire to retire in the near future, maybe in one year. She assumed that the ailing Rehnquist would call it quits at the end of the term, let her stay on one more year, and then she could retire. Nope. Rehnquist told her that he wanted to stay one more year. That meant that O'Connor had to retire now or serve two more years. With her husband's health deteriorating, that just wasn't going to happen. Basically, Rehnquist eased her out the door. Good man.

Beyond this story, the book is full of behind the scenes bits of information that even I, complusive Court fan that I am, wasn't privy to prior to reading it here. There is a lot of talk about the other potential Supreme Court nominees and why they weren't selected. That information was very enlightening, and now I understand why the White House made the decisions that they did.

Here is more beef from Lazarus...

Her dogged insistence on describing every act of every justice as either "liberal" or "conservative" distorts the court's debates. Rehnquist and Scalia, for example, may both fairly be described as "conservative," but Scalia's conservatism is tempered by a libertarian streak foreign to Rehnquist. Greenburg misses how these crosscurrents affect the court's decision-making.

That's pretty nitpicky. Yes, each Justice (even Rehnquist) has or had jurisprudential quirks that casts them outside of the conservative or liberal labels. Scalia's criminal procedure views can be very non-conservative. Stevens' stance on flag burning is very non-liberal. It's still possible to put the Justices into categories based on the majority of their rulings.

If you have any interest in the Court or judicial nominations, definitely pick up the book. Or just pick it up to make Edward Lazarus crabby. Whatever.