Noted author and senior political analyst for CNN Jeffrey Toobin has written a fascinating book that pulls back the robes to reveal the machinations of the United States Supreme Court, mainly focusing on the years of the Rehnquist Court (which is how it was known in name only as Justice Sandra Day O’Connor proved to be more of a power broker as her swing vote decided many outcomes).
Toobin tells the story of the Court in a non-linear fashion, jumping around in time to focus on one justice or case. He details the biography of the justices, their character make-up, and their progression though the court system and the political world. Toobin also covers some people who were considered but didn’t make the cut for different reasons, such as Reagan’s nomination of Robert Bork, Clinton’s consideration of Mario Cuomo, and George W. Bush’s recommendation of Harriet Miers.
Although the justices have different judicial philosophies, it is good to see they are very cordial with each other. Justices Stephen Breyer and Clarence Thomas have been witnessed acting playful like school children when in-session, passing teasing notes and laughing together. Justices Antonin Scalia and Ruth Bader Ginsburg were previous colleagues on the Appeals Court who shared a love of opera and family dinners on New Year’s.
That's not to say they didn’t get feisty with each other. Scalia was well known to be abrasive and insulting when he dissented with justices and their opinions. O’Connor took great offense, but it wasn’t isolated to those he disagreed with. Toobin cites a speaking engagement in 2005 where Scalia was “asked to compare his own judicial philosophy with that of Thomas. ‘I am an originalist,’ Scalia said, ‘but I am not a nut.’”
The book opens with a brief mention of Earl Warren, the chief justice from 1953 to 1969, who pushed “the law in more liberal directions in countless areas,” most notably in familiar cases like segregation of public education with Brown v. Board of Education; rules for interrogating criminal suspects with Miranda v. Arizona; and arguably just as historically important a decision for the Court, albeit indirectly, the lesser-known Griswold v. Connecticut, which dealt with married people being allowed to buy contraception. The case rises to landmark status like the others, not because of its issues or outcome, but because the right of privacy derived from this case, which the Burger Court later relied on for the ruling in Roe v. Wade.
Toobin reveals the fundamental issue conservatives, like The 700 Club founder Pat Robertson and attorney Jay Sekulow, founders of the American Center for Law and Justice, realized in the 1980s about the Supreme Court and the cases they lost: “they didn’t need better arguments; they just needed new justices.” This point is reinforced by Justice William Brennan, who is noted for asking his law clerks “What’s the most important law at the Supreme Court?” The answer is the law of five. With the current Roberts Court, conservatives feel like they have made some headway.
The book covers recent high-profile actions involving the Court, such as Clinton’s impeachment, the 2000 Presidential Election (with Toobin citing reasons why he felt the Court should not have gotten involved), and why conservatives didn’t want Gonzales or Meirs on the bench, exposing the hypocritical nature of politics because “the exact same people who were complaining about the denial of votes to Bush’s other judicial nominees were mobilizing to deny just such a vote to” Miers.
In hardcover, The Nine was on The New York Times Bestseller List for four months and was recognized as a Best Book of 2007 by Slate, The Economist, Time, Newsweek, and Fortune. It also received the J. Anthony Lukas Book Prize, which is awarded to books that have “literary grace, a commitment to serious research and social concern.” The paperback offers up an afterword that briefly covers the 2007-2008 term.
Toobin used many resources to create this book. The most essential being interviews with the justices and more than 75 law clerks, which were granted on a not-for-attribution basis. He is a very good writer, taking what could be lengthy, boring passages of law and history and making them accessible, compelling reading. I highly recommend this, especially to Americans who have a vested interest in the workings of the Court whether they are aware of it or not.