Book Review 15: "The Nine" Jeffrey Toobin

The Nine
Inside The Secret World of the Supreme Court
Jeffrey Toobin
Doubleday
369 Pages

The gold standard of Supreme Court books is of course “The Brethren” by Bob Woodward and Scott Armstrong. This book traced the the Berger Court to the Rehnquist Court and was brilliant in it’s use of former clerks for insights as to the justices foibles, opinions and back stories. Unfortunately most of the reading world could not care less (or so they think) about the Supreme Court and so there has not been a hue and cry for a follow up book. It is fitting therefore that now that we have a new Chief Justice (John Roberts) that we look at the transformation of the Court from Rhenquist to Roberts. Rhenquists era was one of unprecedented stability of the justices of the Court but even as the personnel remained stable the Court, and it’s opinions morphed and evolved as the Justices did themselves.

Toobin is a regular writer and contributor to The New Yorker so there is definitely a liberal bias to his take on the Court but he is pretty even handed about all the Justices finding something to like in each of them and finding them all praiseworthy in one way or another. Even Justice Clearance Thomas, product of and hater of affirmative action is hailed as someone who everyone likes at the Court and who makes a point to know everyone from his fellow Justices to the janitor and the lunch lady.
The book succeeds in its review of each of the Justices individual as well as their Judicial philosophies, political leaning and how all those things formed them. He takes a great deal of time discussing, in no particular order:

Federalism
Strict Constructionalism
Roe v. Wade

The book marvels at the fact that although 7 of the 9 justices during this period were appointed by Republican Presidents there has been no progress on Abortion cases (from the conservative point of view) and similarly how federalism and strict constructionalism have been tenets of the Republican Party since Reagan, those tenets were until recently thwarted by this republican appointed Court. He waxes poetically regarding Sandra Day O’Connor and how she became the center of the court and the power of same. Rhenquist, Scalia and Thomas were one voting block on one end and Breyer, Ginsberg and Souter were on the other leaving Kennedy, Stevens and O’Connor to decide these issues and Kennedy was reliably on the right and Stephens on the left leaving Sandra as “the man”.

It is not so much Toobin’s review of how and why the Court ruled on various cases including the numerous challenges to Roe v. Wade but more how he hammered home the incredible importance of these Justices in shaping our political landscape. You can talk all you want of activist judges, and legislating from the bench but these folks are the gate keepers on the Constitution. What history has shown is that either the President, or Congress if left unchecked will almost relentlessly fill and vacuum of power left and will dominate the other two branches, as well as individual rights in the name of the greater good. Case after case illustrates the Courts importance in maintaining our civil liberties.

The Republican Court’s hate, hate relationship with the Bush administration (post Bush v. Gore) is unrelenting with 6 of the Justices lines up against the Bush administration at almost every turn. Evidently O’Connor became literally sickened by Bush and his administration and the people he sent to Court and the Constitutional power grab of the “unified executive branch”. She had one word for people and situations which she thought people demeaned themselves or the Court and that was “unattractive” and she found Bush’s Presidency which she did so much to ensure in Bush v Gore extremely unattractive.
On Roe v. Wade if someone would have just brought an abortion statute that took into account the health of the woman and did not EVER call for a spousal consent, she would overturned Roe. The book also discusses the impact of international travel on O’Connor, Breyer and Kennedy. To the horror of Republicans these justices sometime looked to international law and precedents when interpreting U.S. law. The fact that our legal system is based on a “foreign” countries laws is of no import and to these people there is no justice outside of “AMERICAN” justice. Very sad.

Toobin is clearly troubled by the recent Bush appointees and knows that the replacement of the O’Connor who was the center with two extremely conservative Justices will move the Court to an extremity which, if they do not temper themselves, could threaten the fabric of our countries laws and jurisprudence. She has high praise for Roberts as a consensus builder and as a charming and intelligent man. On the other hand she views Alito as an extremely talented nazi. I am sure that is overstated but unlike all the other Justices she does NOT find nice things to say about Alito.

it took me a long time to read this book. Almost a month and a half and that was not because the book was no good but more because the subject matter was so engaging that it required me to engage in a way not many books do. Toobins ear is almost perfect as he catches the tone and pitch of our Federal system during the last 30 years. This book is a very good read.

8 1/2 Slingers on the 10 scale