Another Reason Not to Trust Journalists


         Last January we took note of the depiction of the Kelo case by Jeffrey Toobin in his bestselling book THE NINE: Inside the Secret World of the Supreme Court (Doubleday 2007). It turned out that Toobin got a number of things wrong. For one thing, he asserted that Kelo drew relatively little public attention. But in fact, when the Supreme Court heard oral arguments the attendance was quite large; the line stretched across the court plaza all the way to the Library of Congress. Even parties involved in the case (which included your faithful servant who had co-authored an amicus curiae brief) had problems getting in. There were a couple of dozen amicus curiae briefs filed in the matter. It was quite noteworthy that the amici came from both sides of the political spectrum. Suzette Kelo’s supporters included such liberal organizations as the NAACP, the AARP, the Hispanic Alliance of Atlantic County, and the Southern Christian Leadership Conference. The highly regarded urbanist Jane Jacobs also took Kelo’s side.

          After the decision came down, it was the subject of widespread, sharp public criticism by the likes of  Ralph Nader, DNC Chairman Howard Dean, Bill Clinton and the ultra-liberal Congresswoman Maxine Waters. But according to Toobin, the Kelo decision was cut-and-dried, and it was conservatives like Congressman Tom DeLay and Senator John Cornyn whose criticism inspired its critics. Toobin never let on that the vociferous criticism of the Kelo decision came from both political “wings,” as well as the vast majority of the press.

        We took note of all this in our post of January 9, 2008 (Jeffrey Toobin, the Eminent Domain Maven, Speaks). Our blog was picked up by Professor Ilya Somin of George Mason Law School when he blogged about these events on the Volokh Conspiracy. He too was critical of Toobin’s misrepresentation of the Kelo decision and of the country’s reaction to it. We in turn, picked up Prof. Somin’s blog – you can find it on this blog (complete with reader comments) in our post Playing With the Big Boys, January 17, 2008. Check it out. 

      Prof. Somin’s observations inspired a lot of comments on the Volokh Conspiracy blog, and – lo and behold – thereupon Jeffrey Toobin was heard from. He sent an e-mail comment to Eugene Volokh, the boniface of the Volokh Consiracy. It read: 

“Hi Eugene,  “I just wanted to let you know that I’ve been reading the posts about my discussion of Kelo in the Nine with great interest. In light of what I’ve learned, I suspect I’ll be making some changes for the paperback. Again, feel free to post this note and let folks know I welcome other corrections, comments, etc. Cheers, Jeff   1.18.2008 2:04 pm

        Now, the paperback edition of The Nine has come out, and guess what Toobin’s changes are?  Whereas in the hardcover version, on p. 306, one sentence concluded “ . . . the case drew relatively little attention,” in the paperback he inserted the word “public” between “little” and “attention,” so the new sentence now reads “the case drew little public attention,” which is not what happened, judging from the mob of people trying to get into the oral arguments and the score or two of amicus curiae briefs. Also, after “explaining” how the Kelo opinion was no big deal and how the negative reaction to it was stirred up by conservatives, he added this sentence: “Even some liberals, who regarded the decision as a symptom of authoritarian government, denounced Steven’s opinion.”

          Th-th-that’s all folks. No mention of the prominent liberal amici curiae and critics who supported Suzette Kelo, no mention of the overwhelming (and probably unprecedented) rate of public disapproval of the Kelo majority opinion, that ran around 90%, and no mention of the fact that the prestigious U.S. Court of Appeals for the Second Circuit, analyzed Kelo in Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008), and concluded that because New London did not justify the taking of Suzette Kelo’s land on the basis of either blight elimination or elimination of other adverse conditions, and forthrightly agued that it was pursuing economic redevelopment in order to increase its revenues, Kelo was indeed novel and unlike either Berman or Midkiff.

        In short, the paperback edition of The Nine is substantively no different than the hardback version, and neither one conveys – certainly not to a lay readership – what actually happened in that case.