The Nine: Inside the Secret World of the Supreme Court, by Jeffrey ToobinReviewed by Judy Garrison
Have you ever listened to Nina Totenberg on NPR give one of her masterful running accounts of the latest oral arguments in front of the Supreme Court? I’m always a few steps behind, but fascinated, to hear the probing and analysis of these highly tuned legal minds, the back and forth that can make your head spin. And it’s made me curious to know more about the ideologies, styles and personalities of the justices: how to distinguish Kennedy from Breyer and Stevens from Souter. Jeffery Toobin, best selling author, and familiar CNN senior legal analyst and New Yorker staff writer, fills this gap of information for the reader in The Nine both brilliantly and entertainingly. He contends the court has always reflected the political currents driving the broader society, and so the inside look we receive is a window on our society at large.
The illustrated book, published last year, is based on exclusive interviews with the justices and 75 of their law clerks, past and present. Sandra Day O‘Connor, who stepped down a couple of years ago, emerges as a sort of heroine (though not of her decisive role in the 2004 Election Decision which stopped the Florida re-count) and we sense that she was one of the most forthcoming of those interviewed. He also clearly admires her common sense and moderating influence. Whoever his principal sources-some justices clearly spoke to him at much greater length than others–we feel we have been given an unusual glimpse into the Court’s internal workings and culture, as well as a masterful précis of a host of oral arguments, briefs and decisions.
We are first introduced to the justices at the funeral of Chief Justice William Rehnquist. As the pallbearers mount the Court steps we receive intriguing mini-profiles on Stephen G. Breyer, Clarence Thomas, Anthony M Kennedy, Antonin Scalia, Sandra Day O’Connor, Ruth Bader Ginsburg, John Paul Stevens, David H. Souter, and John G. Roberts, Jr., who had been recently nominated by President Bush to succeed Rehnquist as Chief Justice. (Samuel Alito comes later to the court, and he is discussed further on, though not to the extent we might have liked.) The interwoven essays on the Justices are delightfully full of anecdotes and inside glimpses.
As the book proceeds we receive insights as to how the various justices approached cases where some of the big national issues were ruled on: abortion, civil rights, presidential power, church-state relations, the death penalty, though very little on corporate cases. We also learn some of their interesting characteristics and quirks, such as reclusive Justice Souter’s 18th century lifestyle at home in New Hampshire and his abhorrence of Washington; Justice Scalia’s pugnacious and rhetorically forceful style of argument; Justice Thomas’ habit of being silent during oral argument, his fundamental disregard for stare decisis (the law of precedent), and his huge popularity with law clerks and other staff who enjoyed his effusive good nature.
If you’ve ever wondered whether the conservative justices’ main priority on the court is to reverse Roe v. Wade, the book makes clear the answer is clearly “yes.” Toobin gives a full background account of the movement which produced Scalia, Alito and Thomas, all Originalists. The Originalists, I learned, despise a Court that shifts according to contemporary trends rather than adhering to the immutable rules they believe were set down by the Constitution’s framers. The movement spread through law schools after the establishment of The Federalist Society, started in 1982 by a new generation of conservative lawyers who were unhappy that the left-leaning decisions of the Warren and Burger Courts had become the reigning orthodoxy at most law schools. They championed the “jurisprudence of original intention,” an expansion on Robert Bork’s originalist ideas which stated, in effect, that the meaning of the words of the Constitution did not evolve over time, an unprecedented view of the Constitution in modern times. Toobin points out how in large measure debate over original intent amounted to a proxy for the legal struggle over legalized abortion. Bork and Scalia concluded that if the framers did not believe that the Constitution protected a woman’s right to terminate a pregnancy then the Supreme Court should never recognize any such right either. In addition to holding the originalist core beliefs, they, and now the conservative Justices on the Court, represented a new kind of judicial activism. They were not believers in judicial restraint.
During the confirmation hearings we heard the present Chief Justice Roberts state that “Judges are like umpires.” Another time he remarked, “Judges are not politicians.” Toobin, who is of the opinion that the fundamental divisions in American society today are not regional or religious, as they were formerly, but ideological, disagrees strongly with Roberts’ view on the role of the Justices. “When it comes to the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases.” And further, he asserts it is the ideologies of the Supreme Court Justices that will shape the Court and thus the nation. The outcome of presidential elections is, in his opinion, the only factor that will determine the future of the Supreme Court. And as we witness in the reading of this book how so many recent 5 to 4 rulings are manifestly driven by the ideologies and styles of the Justices, we can easily conclude how crucial is this year’s upcoming election in determining the future direction our country takes.
You can borrow The Nine from your Andes Public Library. It is with recent non-fiction by the Librarian’s desk.~