Book Review: The Nine

I just finished Jeffrey Toobin’s popular new book, The Nine: Inside the Secret World of the Supreme Court. Overall I’d give it a positive review. Toobin has some interesting insights into the Big Picture of the successes and failures of conservatives under the Rehnquist Court (and the beginning of the Roberts Court), lots of gossip on the personal relationships among the justices, good reporting on the machinations surrounding Bush v. Gore, and especially some behind-the-scenes tidbits about the most recent Supreme Court appointments (Ginsburg, Breyer, Roberts, Miers/Alito).

There are some downsides. As others have noted, it is pretty easy to guess who spoke to Toobin based on how much ink he gives different justices (and probably how sympathetically he portrays them). More significantly, as this is a popular and journalistic account, there are plenty of places where Toobin overgeneralizes or oversimplifies. And sometimes those oversimplifications get it wrong.

Since this is an Info/Law posting, take this example (from pages 245-246): Toobin calls MGM v. Grokster “[t]he case that summed up Souter’s achievement as a justice.” If that’s right, then poor Souter! Toobin goes from bad to worse as he continues:

Before the case was heard, it was widely predicted that the Court would split in the face of those difficult questions and make the law even more complicated than it already was. But Souter managed to unite the Court behind his opinion, which held that software makers could be liable only if they took affirmative steps to encourage infringement.

He goes on to claim that the “apolitical” opinion was supported on all sides and that Souter “showed a sophisticated understanding of the markets for both technology and entertainment.” Now, I don’t hate Grokster as much as some other observers do, but this is simply all wrong. Even if you agree that the basic outcome of the case makes sense, you can’t plausibly praise it for clarity, universal support, or economic sophistication. On the last of these, for instance, our own Tim Armstrong might beg to differ. This Court repeatedly delivers unanimous but unclear and sometimes slightly goofy opinions in IP cases, and Grokster was just one more example.

All this makes me a little nervous — in other areas with which I’m less familiar, was Toobin’s synthesis off the mark to the same degree? Or did he just squeeze Grokster into the narrative he was trying to present about Souter?

So, take The Nine with a shakerful of salt — but enjoy the diligent reporting, the resulting peeks behind the red velvet curtain, and the graceful writing style.

3 Responses to “Book Review: The Nine”

  1. Thanks for the book review, Bill! This is on my reading list for the holiday break, but I’m disappointed by the example you have cited. This looks like mere sloppiness on Toobin’s part; he’s a smart enough guy to be able to tell a real unanimous decision (that is, one that rests upon broad substantive agreement among the justices) from one that’s only pro forma (that is, one that papers over pretty broad substantive disagreements among the justices by adopting the lowest common denominator). Grokster is pretty clearly in the latter category, as the Ginsburg and Breyer concurrences demonstrate; at the end of the day, it’s not a 9-0 decision so much as a 3-3-3 decision, which does little to provide guidance to lower courts and, even more important, to technology designers. Justice Souter should, indeed, be worried if this is the case on which his reputation is ultimately going to ride. I’d nominate Campbell v. Acuff-Rose instead; anyone else have a suggestion?

  2. Bill -

    The same passage stuck out to me (for obvious reasons). And on top of not being able to praise Grokster for “clarity, universal support, or economic sophistication,” he doesn’t even state the holding of the case correctly.

    Software makers are not only liable when they take “affirmative steps to encourage infringement” – though they are liable when they do that. They are also liable if they create software with no substantial non-infringing uses (whatever “substantial” means).

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