THE NINE
Inside the Secret World of the Supreme Court
By Jeffrey Toobin (Doubleday, 340 pp., $27.95)
Reviewed by Jim Geary
Jeffrey Toobin, in his prologue to The Nine, states that from 1992 to 2005 the Supreme Court decisions reflected public opinion with great precision. This was owing to the swing votes of first, Louis Powell, and then of Sandra Day O’Connor, both moderate conservatives.
“That, now,” he adds, ” may be about to change.”
He writes of “a powerful conservative rebellion against the court” that was building during those years. For those behind this offensive, “its agenda has remained largely the same over the decades:” Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End affirmative action. Speed executions. Welcome religion into the public sphere.
“Now with great suddenness,” he says, these forces “are very close to total control.”
This may not be a book for everyone. If the reader is not interested in the Supreme Court and the analyses of its major opinions as reported by the media, it may not interest. I was fascinated with it. I have long read such analyses eagerly, even those by my former colleague and friend (sort of), James J. Kilpatrick, the conservative columnist.
I think every concerned American should be interested in the decisions of the court. It is the great king of American jurisprudence; the final arbiter of American law, including such personal subjects as whether a woman can choose to have a legal abortion. The 1973 decision of the court in Roe v. Wade gave women that right. It has been under constant attack from the Republicans ever since.
“There were two kinds of cases before the Supreme Court,” Toobin writes. “There were abortion cases, and there were all the others.” Abortion, he says, “was (and remains) the central legal issue before the court.”
Now, with the departure of O’Connor and the appointments of Chief Justice John Roberts and Justice Samuel A. Alito, the court appears to be in the firm grip of the Rightists.
Toobin is easy to read. A popular writer, he is the senior legal analyst for CNN and is on the staff of the New Yorker magazine. Perhaps the most interesting parts of the book are his profiles of the justices, the current members as well as O’Connor and the late Chief Justice William Rehnquist. He devotes considerable space to O’Connor and Justice Clarence Thomas.
The intimacy of some of his research is astounding. He relates conversations between justices, who usually communicate with written notes. He has friends of the justices revealing the justices’ thinking on various liberal and conservative issues.
Toobin discusses in great detail the agonizing search by President Clinton for proper candidates for his two appointments to the court. He finally chose Ruth Bader Ginsburg and Stephen G. Breyer. The author also describes Bush’s search for replacements for O’Connor and Rehnquist, which also took some time. The results were the nominations of Roberts and Alito.
The centrlal issues involved in a number of important decisions during the Rehnquist years are spelled out, including those bearing on gay rights, affirmative action, and federal-state relations as well as abortion.
Toobin devotes three chapters to the 2000 election which resulted in the Supreme Court finally getting involved and settling the issue. Toobin calls it “one of the lowest moments in the court’s history.” “The tragedy of the court’s performance in the election of 2000 was not that it led to Bush’s victory [which Toobin states it did not necessarily do] but the inept and unsavory manner with which the justices exercised their power. ”
Toobin points to what he calls the “most notorious sentence in the opinion:” It stated: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally present many complexities.”
“In other words,” Toobin writes, “the opinion did not reflect any general legal principle; rather the Court was acting only to assist a single individual – George W. Bush.”