The Nine: Inside the Secret World of the Supreme Court

Excellent book. It's intersting, very informative, very readable, and a book everyone should read.
Ruth Jaffe

The theme of this book is that the Supreme Court is just another political branch, differing from Congress and the Executive only in the life tenure of its members, and their consequent shelter from elections. "Political" means that, in Toobin's view, the Justices decide cases in accordance with their partisan views.

Whether that is true or not is too large a question to settle here. We need only say that there is evidence on all sides of it, and he does not present all sides. Instead, he selects the most politically-charged cases, all on the frontiers of constitutional analysis, and hence a misleading sample.

The book is mostly narrative, describing the nominations and confirmations of the last 17 years, and a dozen or so of the Court's most controverial decisions. Toobin has the TV commentator's skill at rendering the complex clear. You can also see in his writing that faintly arrogant smirk that characterizes his TV commentaries. But it is good and attention-keeping reading.

Toobin himself is a political liberal and a "living Constitutionalist". Yet he is reasonably even-handed in his treatment.

The main disappointment is that, despite Toobin's claim of insider access, there is little not previously known. The most striking insider revelation is in Chief Justice Rehnquist's note to Justice Scalia after Scalia had circulated a disparaging dissent to an O'Connor draft: "Nino, you're pissing off Sandra again. Stop it."

i sent the book to a friend who is in prison and he received it promptly and is enjoyin it very much.

This is a reprise of Woodward's 1970s study of the Burger Court, including the use of law clerk interviews to ferret out interesting bits of gossip and inside information on the highly secretive workings of the Court. Woodward was a bit more skilled at getting better gossip, though Toobin's efforts are worthwhile.

Toobin's vignettes as to the personal styles and influence of O'Connor, Breyer, and Kennedy are quite interesting. Of more substance is the portrayal of Rehnquist's administrative skills and the era of consensus and good feeling he brought to the Court.

Toobin's thesis, though, is that this consensus is at war with the far right's struggle to take over the Court and to push it to reverse Roe v. Wade, cut back on national power vis a vis the States, and (somewhat inconsistently)strenghten the national executive power. He persuasively shows the efforts by the far right to groom and select predictably conservative judges.

I'm not entirely convinced that Chief Justice Roberts falls in this category, despite Toobin's arguments to the contrary. Roberts seems to promote consensus and seems to possess a great deal of intellectual curiousity and integrity, which would tend to defy any ability to ensure and predict his vote in any one particular case.

The chapter on Bush v. Gore is disappointing and buys into the popular dismissal of the ruling as the result of 5 purely partisan votes. Political partisanship on any court is, of course, a fact to be reckoned with, but I doubt that judges and lawyers who spend their lives in this profession would so wholeheartedly agree that law is merely "politics by other means". Toobin does not grapple with the cases in a way that shows that quite often cases are decided from a coherent body of neutral jurisprudential principles and less as a matter of blatant, naked partisanship.

The Bush v. Gore case was horribly written, but the result can be advocated on the basis of a legitimate jurisprudential philosophy that the Court should have done a better job of articulating. That philosophy had more to do with the justices' doubts about the ability of the judiciary to decide a political controversy (and the need to defer to the pro-Bush efforts of the Florida executive and legislature) and less to do with the partisanship of the 5 justices. For the reasons noted in Stevens' dissent, I think this philosophy was wrong, and the recount should have been allowed to proceed. It probably would not have changed the result from Bush to Gore, but the Court was out of line in making up a federal equal protection rationale to overrule what was really a matter of state law for the Flordia court to grapple with (and that may have, in the end, been overruled de facto by the Florida legislature and executive).

In any event, Toobin is a bit too cynical in his appraisal of judicial partisanship and does not adequately portray some of the complexities of the workings of the Court.

Who the intended audience is is unclear. The gossipy, behind-the-scenes stuff is entertaining for awhile. But lawyers are already clear-eyed, if not cynical, about the judiciary, and the general public is smart enough to know that the Supreme Court is no less suffused with politics and personal biases than any other branch of public service. So the "Can-you-believe-Supreme-Court-justices-can-be-that-whimsical-and-prejudiced?" theme of the book won't shock anyone. Only a Supreme Court junkie would truly enjoy the synopses of the cases argued and decided. But the junkies would find Toobin's explanations - and the selection of the cases he chooses to explain - too facile. The general public would find them dull.

Toobin leans left, but no more or less than one would expect from a New Yorker magazine writer and CNN commentator. He wants to leave the impression that Armageddon is on the horizon with Roberts and Alito now on the bench, but he's not very convincing. Toobin favors justices like O'Connor and Breyer, who he believes are pragmatic in their decision making. Toobin's writing about O'Connor is over the top. Toobin goes so far as to say that the "undue burden standard" of abortion laws was the area in which O'Connor "singlehandedly remade the law in the most controversial area of Supreme Court jurisprudence... No other woman in United States history, and very few men, made such an enormous impact on their country." (P. 310.) Can sainthood be far behind?