Books

Reviewed by Jeff Bleich
     
      The Nine:
      Inside the Secret World of the Supreme Court
      Most legal journalists are good writers ... for a lawyer. Jeffrey Toobin, though, really knows how to write. He writes clearly, confidently, stylishly, and?if his sources are good?with deadly accuracy. His rare narrative skill makes hard and dry legal concepts digestible even to those who like their information soft and moist. In his latest book, The Nine, he takes on the difficult challenge of making the scholarly pursuits of nine mostly elderly jurists of the Supreme Court into an action-packed page-turner about a concerted effort by conservative forces to capture the Court and reshape America in the process. To do this, The Nine systematically reduces the Court's decisions?and the Court itself?to human dimensions. In this it succeeds, but perhaps too well. The book elegantly deciphers some of the Court's most vexing decisions and clarifies decades-old trends. But when it comes to explaining the motivations and reasoning behind this movement, The Nine portrays the justices not merely as less than they seem, but as less than they are. By looking to personal flaws in each of the justices to explain their decisions, Toobin builds a powerful engine for the book's narrative drive, but he also makes this a treacherous ride.
      The Nine is part history and part investigative journalism, repeating some well-known facts, but also divulging new secrets drawn from blabbermouths inside the Court. According to the endnotes, Toobin interviewed "more than seventy-five of [the justices's] law clerks." Armed with these accounts, Toobin feels empowered to fill in missing details on a virtual greatest hits of Supreme Court news stories from the past two decades, including the Clarence Thomas/Anita Hill hearings, President Clinton's chaotic near-appointment of Mario Cuomo, the Clinton impeachment, the melodrama of Bush v. Gore, affirmative action, the death penalty, the Harriet Miers/Samuel Alito appointment, and?most of all?the religious right's unrelenting drive to change the composition of the Court. The book deftly organizes these tangled strands of policy, gossip, scandal, and history, weaving them into a compelling and coherent yarn.
      The Nine's premise is simple enough: The Supreme Court as an institution is under siege. Like Jan Greenburg's recent book, Supreme Conflict, The Nine asks why, despite this nearly two-decade assault, the Court never became quite as conservative as the religious right had hoped or liberals feared. The Nine concludes that the Court is largely personality driven, and that now, with Justices John Roberts and Alito deciding cases, the religious right's frustration is about to end.
      Toobin traces three separate social forces over the past few decades that he credits with finally pushing the Court to the verge of dumping a half-century of secular jurisprudence. The first of these forces, the Federalist Society, began as a small outlier academic movement that felt the Supreme Court had neglected the foundations of the Constitution by expanding federal power at the expense of the states. The Federalists developed a plan for converting their views to actual policy not merely by writing provocative papers but also by infiltrating liberal bastions of policymaking within the judiciary and the Justice Department. Simultaneously, the religious right gathered as a new political force with its own substantive hostility to the Court. Bent on electing presidents who would appoint justices with views that conformed to its own beliefs based on traditional American values, this group believed the Constitution must give states the latitude to restore school prayer, confine sex to lawfully married heterosexual partners, ban smut, and forbid any tinkering with God's plan for procreation. Finally, the Republican Party, having been deposed by Kennedy, trounced by Johnson, and then embarrassed by Nixon, discovered this broad, disaffected group of right-wing intellectuals and fundamentalist voters who could restore them to power?if the Republicans would join them as allies.
      Although the past two decades largely witnessed the triumph of these three groups politically, Toobin's first task is to figure out why that triumph did not translate into a fundamental change in the Court. The Nine explains the causes as both twists of fate and quirks in the individual justices themselves. Justices John Paul Stevens and Harry Blackmun, though appointed by Republicans, proved to be moderates with no strong desire to impose a particular ideological spin on the Constitution. Further appointments yielded mixed results based on who was being replaced. For example, although conservatives gained ground by swapping Justice Thurgood Marshall for Justice Thomas, they gained far less ground swapping Justice David Souter for Justice William Brennan, and arguably lost ground when Justice Ruth Bader Ginsburg was appointed to replace conservative Democrat Justice Byron White. Most important to Toobin, justices already on the bench who had always been reliable conservatives proved to be more complicated thinkers once they were freed of the tyranny of a liberal majority voting block. Once conservatives became a majority on the Court, Justice Sandra Day O'Connor became the voice of pragmatism?her goal being to avoid precisely the type of dogmatic positions these right-wing forces craved. Justice Anthony Kennedy, The Nine posits, developed as a student of history and international law, concerned with the opinions of future generations and international contemporaries who do not share the hard-line views of the federalist/Republican/right-wing majority. Even Chief Justice William Rehnquist, once known as the "Lone Dissenter" for his adherence to hard-line interpretations that defied the former liberal majority of the Court, mellowed as he took on the role of chief justice and devoted his energies more to administrative pursuits.
      Significantly, according to Toobin, although the Court had moved decidedly to the right in small bites for two decades, the extremism of the right wing under George W. Bush had the ironic effect of pushing the Court's two pivotal justices, Kennedy and O'Connor, in the opposite direction starting in 2001. Toobin claims Bush v. Gore was such an obviously rotten decision that its stench alone embarrassed Kennedy into embracing some progressive ideals. Likewise, he argues, President Bush's consolidation of executive power gave O'Connor a serious case of buyer's remorse about supporting his election and led her to sharpen her commitment to the separation of church and state, the preservation of civil liberties, and the acknowledgment of international norms. These highly personal reactions, Toobin claims, explain how a Court composed of seven Republican-appointed justices and fueled by a religious revolution, somehow?with Kennedy and/or O'Connor in the lead?made landmark decisions recognizing a right to same-sex intercourse and forbidding imposition of the death penalty on minors.
      Toobin claims, however, that individual foibles and quirks are now about to fundamentally change the Court. The Nine suggests that O'Connor decided to step down to help her ailing husband, and because she was told that Chief Justice Rehnquist's health was sufficiently stable for her to leave without handing President Bush two appointments. As it turned out, her husband's condition was beyond her capacity to provide meaningful care, and Chief Justice Rehnquist passed away unexpectedly shortly after she announced her resignation. Because of these twists of fate, the Court gained two young, ideologically conservative members who, The Nine warns, have now moved the Court past the tipping point and fully to the right. Toobin suggests that if President Bush or another Republican were to get an opportunity to replace Justice Stevens or Ginsburg, the Court would indeed finally fulfill the conservative triumvirate's great agenda of rolling back much of the Warren Court's legacy.
      Although The Nine may be right about the meaning of Court decisions and about its prognosis for the Court, it is not clear that the book's personality-based diagnosis is correct. The problem with Toobin's explanation is that its accuracy depends on questionable sources. The source of the conjecture appears to be mostly clerks who?based on one year's dealings with one justice?feel eminently qualified to psychoanalyze them all. The general poverty of this information is helpfully revealed on one page, in a handy reference guide for long-held law-clerk lore about the worst aspects of the individual justices. Page 176 recites their flaws: Rehnquist was "result-oriented, intellectually lazy, political partisan"; O'Connor was "unprincipled, impatient, dedicated to the appearance of moderation rather than its reality"; Scalia, "bullying advocacy in lieu of reasoned analysis, naked bias for the Republican Party"; Kennedy, "basic judicial ineptitude compounded by empty rhetoric"; Thomas, "sullen withdrawal and reflexive partisanship"; Ginsburg, "timid failure to engage or respond"; and Breyer "favor-ing muddleheaded compromise for the sake of compromise." This type of harsh assessment could only come from people too young, too self-confident, and too removed from the intellectual life of the justices themselves to form more nuanced conclusions?that is, from law clerks. Persuaded by the pervasiveness of this lore, The Nine unconsciously incorporates it as truth. Thus, Justice Scalia is never merely annoyed, he is always "enraged." His views on the right to privacy could not possibly be driven by his claimed concern about the scope of judicial authority; instead it must be his naked personal biases based on his religious beliefs. Toobin thus accepts, for example, that Scalia has a "revulsion for homosexuality" and a "messianic sense of himself." This capacity for caricature, while making The Nine an entertaining read, also makes it less persuasive.
      None of this takes away from the book's ultimate achievement. Well written, well researched, and insightful, The Nine is likely the most substantial work about the Court since Bob Woodward's The Brethren. But even a skilled writer is ultimately a captive of the information he is provided. The Nine is at its best when it relies on recorded statements and writings, and at its worst when it relies on insiders who like to blab. But, then again, aren't we all?
     
      Jeff Bleich is a partner with Munger, Tolles & Olson in San Francisco and president-elect of the State Bar.
     

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