The Nine

Book eight in my quest to read the top ten books of 2007 chosen by the New York Times is The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin. I would have read this book whether it was on any best list or not, as I have long been fascinated (and alarmed) by the U.S. Supreme Court.

This goes back to the early eighties, when I read the first book that really took a peek behind the curtain of the cloistered lives of Supreme Court justices, The Brethren, by Bob Woodward. That book dealt with the acrimony among the justices during the days of the Burger Court. Every few years we get another book that chronicles what goes on behind the scenes, and they vary in their readability and inside info. Toobin has hit one out of the park here.

Woodward revealed that Justice Potter Stewart was his primary source for The Brethren (he did this after Stewart died). Toobin also has unattributed sources on the bench, but it is clear that he received a lot of help from Sandra Day O'Connor, who is the main character of this book and, as Toobin rightly points out, the most influential woman in American history.

The Nine basically covers the Rehnquist court, with his ascension to Chief Justice, and covers in broad strokes the nominations of David Souter and Clarence Thomas (his nomination hearings have inspired many entire books). Then comes a fascinating chapter on how Bill Clinton came to choose Ruth Bader Ginsburg (it was Mario Cuomo's nomination had he accepted it--he ended up in a long, Hamlet-like period of waffling). Clinton also appointed Stephen Breyer, and after that nomination, in 1994, the court remained the same line-up for eleven years, the longest status quo in the Court's history.

Toobin's greatest strength, among many, is depicting the justices as characters in an almost novelistic fashion. Thomas is the most jovial, yet also the angriest, and has an almost antediluvian judicial philosophy. Scalia delights in baiting his opponents, frequently throwing verbal lightning bolts from the bench, yet is collegial and close to his philosophical opposite, Ginsburg (they share a love of wine and classical music). Souter is almost a monk, a bachelor who writes with a fountain pen, and eats the same thing for lunch every day (an apple, core and all). Breyer is a technocrat and problem-solver, and along with Kennedy is an evolving mind, influenced more and more by international law. Rehnquist is a man who is surrendering to age, interested more in keeping the business of the court operating, in contrast to the firebrand conservative he once was. By the end of his life he seemed to have given up on any revolutions, and even came around to accept Miranda, the case that established the arrested being read their rights. He hated that decision, but in the end wrote an opinion to uphold it. Only Stevens, the senior justice (now 88) isn't vividly etched.

It is O'Connor, though, that we learn the most about. During most of the years of the Rehnquist court, she was the deciding vote. She almost singlehandedly decided how cases were decided, in areas of affirmative action, abortion, and many other areas. In the case of Planned Parenthood v. Casey, she repudiated a lower court ruling that it was reasonable for a state to pass a law requiring a woman to inform her husband she was getting an abortion. She thought that was a terrible decision. Who wrote that lower court opinion? Samuel Alito, who ended up replacing her.

O'Connor, appointed by Ronald Reagan and a loyal Republican, came to view the Bush 43 presidency with consternation. Toobin devotes a gripping section to the Bush v. Gore decision, which closed off recounts in Florida and put the current occupant in power. It so divided the court that David Souter almost resigned in protest. O'Connor voted with the majority, but looked on in horror as Bush's policies undermined the constitution. She resigned in 2005 to care for her husband, suffering from Alzheimer's disease, after Rehnquist assured her he would serve another year. Rehnquist would die a few months later, though (during the Katrina hurricane) and Bush had two nominations.

Toobin goes over that period expertly, especially the Harriet Miers fiasco. Unlike other Republican presidents, though, Bush is not going to be surprised by his nominees, who have thus far proved to be as conservative as he hoped. John Roberts and Alito will be reliable conservative votes for years to come.

The next president may have three nominations to make in his first term, as Stevens, Souter and Ginsburg may leave (especially if Obama wins). Right now the ideological center of the court is Kennedy, who in 2007 voted with the majority in all 27 of the 5-4 decisions. He is an interesting, developing character, even at the age of 72. He wrote the decision in Lawrence v. Texas, which basically ended anti-sodomy laws for all time (and was the occasion for tears of joys from the gay community as he read the decision) but he can also fall in line for the Republican view just as frequently.

Toobin's book is a must for any follower of the court, a humane and not overly technical study of an interesting period of U.S. history. Very few voters consider judicial appointments when voting for president, but it is one of the arenas where a president can do the most good, or damage.