Book Review: Jay Wexler’s “Tuttle in the Balance”

By Steve Klepper

For the second straight year, the American Bar Association’s Ankerwyke imprint is releasing an entertaining novel for the U.S. Supreme Court enthusiast on your holiday shopping list. Last year’s release was David Lat’s Supreme Ambitions, a tale of intrigue among elite federal appellate law clerks competing for Supreme Court clerkships. This year’s treat is Jay Wexler’s Tuttle in the Balance, the story of a Supreme Court justice experiencing a delayed midlife crisis at age 62. Lat’s novel had an irreverent tone but did not play for laughs; in Tuttle in the Balance, however, the laughs come early and often.

This should come as no surprise to anyone familiar with Wexler’s work. Tweeting by the handle @SCOTUShumor, Wexler tracks how many “[laughter]” notations each justice draws in the court’s official argument transcripts. He’s legitimately funny, not merely funny by lawyer standards.

Less known, however, is that Wexler has one of those elite résumés that abounded in Supreme Ambitions. First in his class at Stanford Law School, Wexler clerked for D.C. Circuit Judge David Tatel and then for Justice Ruth Bader Ginsburg. After a two-year stint at the DOJ’s Office of Legal Counsel – a hotbed of future leaders of the bench and bar – Wexler took a job at Boston University School of Law and became a prolific writer, particularly on the intersection of law and religion.

But, unlike many in Wexler’s league, who leverage their publications and accolades to move to schools higher and higher up the U.S. News rankings, Wexler stayed with BU, an excellent (currently ranked 26th) but not Top 14 school. He must have had the opportunities. His writings through the last 10 years are those of an individual who chose to be true to himself rather than devote his career to climbing the ladder of prestige. That leads us to the delightful trifle that is Wexler’s first novel.

Ed Tuttle is a divorced, 62-year-old justice who, after eight years, begins to realize that the job isn’t all it’s cracked up to be. His Supreme Court bears little resemblance to the Roberts Court, where the justices, despite ideological chasms, are collegial and often great friends. Tuttle’s court resembles more the courts of the 1950s through 1970s, when colorful characters such as Hugo Black, William Douglas, and Felix Frankfurter clashed and often loathed one another.

The fictional Chief Justice Janet Owens models her tenure after Chief Justice Warren Burger, who was famously inept at managing the justices’ egos. A Scalia proxy openly writes of his religious beliefs. At oral arguments, two justices brazenly pander for laughs to move up an unnamed professor’s laughter standings.

The novel feels a little dated, in large part because of its subject matter. It’s true that we still live in an age in which the justices still communicate by memoranda rather than email, and Justice Scalia still makes Jack Benny references. Still, it’s weird for a pornographic magazine to play a major part in the novel’s obscenity case, considering that Playboy just announced that (unable to compete with Internet pornography) it’s dropping nude pictures. A few odd details, such as that Tuttle was on the Yale Law Journal masthead in 1968 – making him about 15 years old at the time he graduated law school – indicate that Wexler probably started writing this book at least 10 years ago.

Tuttle’s views toward women go further back in time. Tuttle manages to sexualize virtually every woman who passes through his life. Sure, it’s believable that a man in the throes of a delayed midlife crisis would act this way – and that his “I’m a dirty old man” inner monologue fuels Tuttle’s self-image problems. But it doesn’t make him the most compelling protagonist for 2015.

The novel is reminiscent of Steve Martin’s 1991 film L.A. Story , in which a man, who knows he should be acting better, and who finds himself suddenly single and suffering from career ennui, clumsily pursues women both appropriate and inappropriate for him while consulting age-old writings in a search for higher meaning in a land with its own odd rules. There, the protagonist applied, in Los Angeles, the lessons of Hamlet. Here, in a clever use of Wexler’s 1991 undergraduate thesis (according to his CV, “Western interpretations of the Chuang Tzu”), Tuttle consults the Chuang Tzu in trying to find his place on the Supreme Court. I happen to still greatly enjoy L.A. Story, just as I greatly enjoyed Tuttle in the Balance – funny and poignant, even if dated.

Thematically, Tuttle in the Balance is a fitting counterpart to last year’s Supreme Ambitions. Tuttle, at age 62, learns what Lat’s protagonist, Audrey Coyne, was fortunate to learn at a much younger age: A résumé, no matter how great, won’t make you happy or satisfied. Happiness and satisfaction aren’t some abstract future concepts to be experienced upon achieving some prestigious goal.

For Tuttle, sitting on the Supreme Court is the culmination of a lifetime of striving. But after eight years he’s still worried about which opinions the Chief will assign to him, and he is wracked with doubt about what qualifies him to decide politically charged controversies. It’s clear he would have been happier to stay on the D.C. Circuit, deciding dry administrative law cases. On the Supreme Court, even the justices who enjoy the most influence in their time find themselves competing with the ghosts of deceased greats such as Holmes or Brandeis.

Tuttle in the Balance is wonderfully and deliberately absurd, coming from an author ideally positioned to identify the absurdity of treating the Supreme Court as some kind of modern-day Mount Olympus. Court-watchers want to treat every term as a “blockbuster,” even when the issues aren’t well suited to final resolution through the Article III judicial power. The Court could approve puritanical state restrictions on pornography, but pornography would survive. The Court could strike down “under God” in the Pledge of Allegiance, and still the practice would survive – just as school prayer remains a fixture at public schools in large swaths of the country more than 50 years after the Court’s decisions prohibiting the practice.

In an age in which the idea of judicial restraint comes increasingly under fire, Jay Wexler asks a critical question: Can a modern justice function with a healthy skepticism of the judicial power? Tuttle’s struggle with this question is what gives the book its heart and its biggest laughs.

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