If you’re looking for the best account of recent U.S. Supreme Court history, skip Jeffrey Toobin’s The Nine (Doubleday, 2007). Another 2007 volume was much better.

Toobin offers interesting behind-the-scenes insights, but his analysis is plagued by his unconcealed bias. (Thomas and Scalia are extreme. Stevens is a sage. Breyer’s the best of the bunch. O’Connor walked on water … except on those occasions when her latent conservative streak resurfaced.)

Despite his intentions (which seem to involve scaring readers into voting for Democratic presidents who will protect the Court from right-wing ideologues), Toobin offers good support for those who prefer a Supreme Court that focuses on the limitations within the text of the Constitution itself, rather than the justices’ own political views.

Consider his description of Justice Sandra Day O’Connor’s decision in the University of Michigan affirmative action cases. Out of the blue, O’Connor decided that affirmative action policies with no constitutional basis would enjoy constitutional status for the next 25 years.

[I]f O’Connor could legislative in this matter on affirmative action, what was to stop her colleagues from establishing codes of behavior in other areas? The answer, of course, was that the only restraints on the judge in such circumstances are his or her conscience and savvy.

And that, ultimately, is the best defense of what O’Connor did. On affirmative action, she picked a result, and reached a compromise, that was broadly acceptable to most Americans. There was no formal limit on her power, but O’Connor’s extraordinary political instincts let her exercise her authority in a moderate way. In some basic, almost primal manner, O’Connor understood that twenty-five more years of racial preferences seemed the right amount of time. It is a scary prospect to consider what other justices in the Court’s history, including some of her contemporaries, would have done with the power that O’Connor arrogated to herself. Her judicial approach was indefensible in theory and impeccable in practice.

If Toobin had read this passage one more time before submitting it to his publisher, perhaps he would understand that all of us should consider the “scary prospect” of as few as five unelected justices deciding cases based on their “basic, almost primal” sense of popular opinion.

Contrast that approach with the one described here.