In late June 2008, the gun lobby won its most important Supreme Court victory, in the District of Columbia v. Heller case, a decision written by Antonin Scalia that overturned a handgun ban in the nation’s capital and created out of whole cloth a right to bear arms irrespective of membership in a militia. A few days after the decision, Nina Totenberg, National Public Radio’s legal affairs correspondent, threw a party where Scalia was a guest. In a Politico profile of the NPR journalist, Michael Schaffer reports a disturbing detail from Totenberg’s new book, Dinners With Ruth: “Totenberg’s husband, a surgeon who she says has operated on hundreds of gunshot victims, adorns every guest’s soup bowl with a plastic squirt gun. Everyone laughs. Hilarious!” Elsewhere in the book, Totenberg writes that she “loved” Scalia.
Totenberg’s book, where she reminiscences about her cozy intimacy with Ruth Bader Ginsburg and other judges, is subtitled A memoir on the power of friendships. The book seems to be a response to the flak Totenberg received from many NPR listeners and the network’s own public editor when, after Ginsburg’s death in 2020, the reporter made public how close she and the justice had been.
In addressing the controversy, Totenberg discloses that she shared a friendship not just with Ginsberg but with many other judges too. As Schaffer notes, Totenberg’s dinner room table was a place where “the likes of Nino Scalia (‘a mensch’), Stephen Breyer (he and his wife helped clean up after an I Love Lucy-style dishwasher disaster), and William Brennan (he wrote a thoughtful note to Totenberg’s niece) were holding court.”
In an era where the United States is suffering from a level of polarization that rivals the 1960s—although not yet the 1860s—Totenberg offers her recollections of supper-table high jinks as a reminder of the value of elite comity. Upbraided for her coziness with power, the journalist responded by celebrating the code of civility that makes cross-ideological affection possible. “It was a better time,” Totenberg told Politico.
Totenberg’s nostalgia trip comes just as public approval of the Supreme Court is reaching historic lows thanks to extreme right-wing decisions like the overturning of abortion rights in the Dobbs case. In that context, Totenberg’s discourse on “the power of friendships” seems like an attempt to shore up an institution that is rightly losing legitimacy. The very phrase “the power of friendship” calls to mind the running tagline of the animated show My Little Pony: “Friendship is magic.” But My Little Pony was a children’s fantasy show about unicorns. Totenberg is offering what purports to be a work of nonfiction for adults.
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Totenberg is often denounced by conservatives as a liberal partisan, but in some ways she’s the best friend the newly empowered reactionary court has. Her humanizing stories about how much fun judges like Scalia are once you get to know them provide essential cover for the court. More and more Americans have begun to realize that the judiciary is hostile to their basic rights—indeed, an enemy. Totenberg is on hand to say, no, the justices are our friends. Or, at the very least, her friends.
Totenberg’s memoir belongs to the curious genre of reputedly liberal writers, often law professors or journalists, vouching for reactionary judges. This is a type of writing that flourishes in the op-ed page whenever the Republicans put forward a particularly rebarbative Supreme Court nominee
In a profile of Samuel Alito that ran in The New Yorker, Margaret Talbot observes,
When President George W. Bush nominated Alito to the Supreme Court, in 2005, many journalists portrayed him as a conservative but not an ideologue. The Times noted that legal scholars characterized his jurisprudence as “cautious” and “respectful of precedent.” Self-described liberals who’d known him—as an undergraduate at Princeton, as a law student at Yale, or in some later professional capacity—sketched portraits of a quiet, methodical, reasonable man.
Alito would, of course, go on to be one of the most stridently partisan right-wingers on the court.
When Neil Gorsuch was nominated in 2017, lawyer Jason Murray wrote in The Washington Post, “In times like these, liberals should welcome a nominee like Gorsuch—who is honest, principled and committed to safeguarding the rule of law.” In The New York Times, Neal K. Katyal—who had served as acting solicitor general in the Obama administration—wrote, “I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence—a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.”
When Brett Kavanaugh was nominated in 2018, Yale law professor Akhil Reed Amar took to The New York Times to make “a liberal’s case for Brett Kavanaugh.” Amar argued that “it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.”
When Amy Coney Barrett was nominated in 2020, Harvard law professor Noah Feldman went on NPR’s All Things Considered to vouch for her qualifications. Feldman said, “First, she has a first-class legal intelligence, demonstrated certainly in her years as a law clerk when I knew her, but also subsequently in her academic writings and her teaching. Second, for those who care about judicial temperament, she has a very judicial temperament.”
Like Totenberg’s book, all these words of praise are powered by friendship. The legal establishment, which includes law professors and legal journalists as well as jurists, is a small, clubby place. Murray clerked under Gorsuch. Amar acknowledged that Kavanaugh was a former student. Feldman clerked in the Supreme Court with Barrett.
It might be a personal virtue to have friendships that transcend ideology. But friends are not a reliable source for accurate or honest appraisals. Gorsuch, Kavanaugh, and Barrett have not proven to be the moderate, prudential, evidence-weighing justices that their liberal admirers promised. Rather, with a few exceptions like Gorsuch on Indigenous cases, they have been consistently partisan right-wingers.
The great task the left faces is cutting the judiciary down to size. After decades of nominations by politicians like Reagan, the Bushes, and Trump, the courts are the stronghold of reactionary power in the United States. Decisions like Dobbs are only the most visible way in which the courts are increasingly pushing back on long-held rights. Equally worrying is the use of judicial power to hamstring the administrative state, making any sort of regulation of capitalism impossible.
The left faces a long war against the courts. To steel ourselves for this fight, we need to be clear-eyed about just how reactionary the court is. Which in turn means realizing that the true friends of the court can only be false friends to the left.
