Reviewed by David Schimmel
The Nine is the story of the Rehnquist Court. It is a narrative that weaves together an examination of its key cases, intimate biographies of its justices, insightful gossip and anecdotes, and the candid and provocative views of the author. It is based on Court opinions and briefs, transcripts of oral arguments plus interviews with some of the justices and 75 of their law clerks. It presents a fascinating, readable insider’s view that blends history, law, ideology, politics, and personalities. Much of The Nine reads like a novel – even when you know how the story ends. This review illustrates Toobin’s presentation of the justices, their cases and the workings of the Supreme Court.
In his discussion of key decisions, Toobin captures their substance without lapsing into legalese, and he omits legal details without oversimplification. The case that receives the most attention is one that will not have the greatest impact on constitutional doctrine, but it will undoubtedly have the greatest political impact - Bush v. Gore.
In three chapters, Toobin presents a scathing critique of this case that “the Court should not have taken.” (p.152) 1 While highlights of the story are familiar to those who lived through the dramatic post-election days of 2000, much of Toobin’s tale was about the less familiar strategies and personalities of the Gore and Bush teams, the behind the scene maneuvering among the justices, and the decisive role of Anthony Kennedy.
Although many of the Toobin’s case discussions tend to be nonpartisan and balanced, there was nothing balanced in his indictment of the Court’s role in Bush v. Gore. In this case, writes Toobin, “the justices displayed all of their worst traits - among them vanity, overconfidence, impatience, arrogance and simple political partisanship.” (p. 141) For Toobin, Bushv. Gore was a “tragedy” in which the majority “did almost everything wrong.” (Id.)
Education decisions that received special attention concerned religion and affirmative action. For Toobin, the star player in the religion cases was not a justice. It was Jay Sekulow, an evangelical activist, whose partnership with Pat Robertson led to the establishment of the ACLJ (the American Center for Law and Justice) to be a conservative counterweight to the ACLU. Equally important was Sekulow’s First Amendment strategy for arguing religion cases. Instead of defending the rights of students to organize Christian prayer clubs under the Free Exercise Clause, he argued these claims as free speech cases – a more effective approach since the Court was more protective of controversial speech than controversial religious activities. Thus in the Mergens, a student Bible club case, Justice O’Connor’s opinion supported Sekulow’s argument that a public school “does not endorse or support student speech that it merely permits.” (p. 90) Sekulow’s argument also prevailed in Lamb’s Chapel which prohibited public schools from discriminating against religious viewpoints and in a University of Virginia case that struck down restrictions on financing student religious publications. Finally, however, Sekulow’s strategy failed in the Santa Fe case which rejected the argument that school-authorized student prayers at football games were merely private speech by students.
Toobin’s discussion of affirmative action focuses on the University of Michigan cases. In ruling against the inflexible undergraduate point system in Gratz and upholding the law school’s individual approach in Grutter, O’Connor steered the Court to a “middle of the road” approach that was reflective of Justice Powell’s “Solomonic” opinion in Bakke. Commenting on O’Connor’s compromise, Toobin writes that her approach “was indefensible in theory and impeccable in practice.” (p.226) The discussion of Grutter also highlights the amicus briefs and the strategy of presenting affirmative action, not as social engineering to benefit minorities, but as a national necessity supported by Fortune 500 corporations. Especially influential was the brief of the retired military officers who argued that a diverse officer corps was essential to our national security.
No justice is more central to Toobin’s narrative than Sandra Day O’Connor. Nor was any justice more admired or more influential. In fact, Toobin considers O’Connor “the most important woman in American history.” (p.251) On key issues such as abortion, “the Relinquist court was in fact the O’Connor Court.” (p.38) For example, O’Connor argued that abortion laws should be tested using an “undue burden standard” – a test she invented and persuaded a majority of the justices to accept. Thus she “single-handedly” remade the law in this contentious area and led the Court in a direction that reflected the will of most Americans. Similarly in affirmative action and religion cases, O’Connor’s decisions seemed similar to what most voters wanted. “No one,” writes Toobin, “ever pursued centrism and moderation…with greater passion.” (p.7) Unlike many ideologues who criticized her ad hoc, pragmatic approach, O’Connor thought “it was better to be right than consistent.” (p.97)
Like O’Connor, Justice Kennedy was the other influential swing vote in The Nine. But the book’s portrait of Kennedy was far less flattering. “Kennedy,” writes Toobin, had a “taste for self-dramatization” and a "weakness for high flown, sometimes meaningless rhetoric.” (p.56) After O’Connor resigned, Kennedy’s vote began to make the difference in almost all close cases. In fact, in the twenty-four cases in 2007 decided by a 5-4 vote, this “joyful” seventy year-old justice was in the majority in every one.
In contrast to the more moderate approaches of O’Connor and Kennedy, were the polar perspectives of Scalia and Thomas. Unlike Kennedy who sought out the views of foreign jurists, Scalia “courted the scorn of global elites.” (p.200) Despite his bombastic opinions and his “messianic sense of himself,” Scalia seems to have had little influence on the Court and wrote “shockingly few” important decisions. According to Toobin, Scalia pushed Kennedy toward moderation, “actively repelled” O’Connor, and by 2006, was “bored” with his job. (p.317-19)
Like Scalia, Clarence Thomas was a justice “neither influenced by nor with influence upon his colleagues.” (p.99) For Thomas, precedent holds little weight; if a Court opinion was wrong, he believes it should be overturned. For example, in the 2007 “Bong Hits for Jesus” student speech case, Thomas argued that Tinker, the Supreme Court’s landmark student armband decision, should simply be ignored. Toobin portrays some of Thomas’ contradictions: the friendliest and warmest justice (adored by Court workers) who was also full of rage; a former Black Power advocate who became the most conservative justice on the Court; a beneficiary of affirmative action who became its most hostile critic. He usually voted with Scalia. But when Scalia was asked to compare his judicial philosophy with that of Thomas, Scalia replied: “I am an originalist, but I am not a nut.” (p.103)
Although he was the chief justice, William Relinquist was not a dominate figure in the Toobin tale. The book traces his evolution from a marginal influence in the 1970’s (when he detailed his then far right philosophy in his frequent dissents) to his tighter, more moderate opinions of the 90’s. Thus when the Court had an opportunity to overrule Miranda in 1999 (a decision that exemplified what Rehnquist detested about the liberal activism of the Warren Court), he rejected the Scalia/Thomas approach and upheld Miranda since “the principles of stare decisis weigh heavily against overruling it now.” (p.124)
David Souter is one of The Nine’s minor heroes. Toobin seems to appreciate Souter’s integrity, his eccentricities and his “habits of a gentleman from another century.” (p.43) A life-long bachelor, Souter wrote with a fountain pen, lived in his grandparents’ farmhouse, avoided attention, never watched television at home, and had a libertarian judicial philosophy. Appointed to overturn Roe v. Wade, he helped save it.
Ruth Bader Ginsburg and Stephen Breyer are also portrayed in a positive light. Shy and awkward, Ginsburg’s opinions changed from a careful, restrained approach in her early dissenting opinions to furious and fiery dissents in the 2007 equal pay and abortion decisions. In defending the right to an abortion, she argued for a different approach. Instead of basing it on some general right of privacy, Ginsburg argued that it should be based on equality – “on a woman’s autonomy to determine her life’s course.” (p.330) Breyer is described as the “sunniest” member of the Court – as an optimistic individual and an “ardent internationalist” who had an “uncynical love of government.” (p.79 and 81)
While most of Toobin’s anecdotes about the justices are insightful, some are excessive. For example, Toobin devotes an entire page discussing whether or not when Scalia’s “flicked his fingers under his chin” he made an “obscene gesture.” (p.318) In addition, some of the book’s observations about the justices’ physical descriptions and reactions were distracting and superfluous. Here are examples of Toobin’s questionable comments about several of the justices as they sat on the bench at the end of the 2007 term: Souter “seethed,” “the muscles in [Roberts’] jaws twitched,” Breyer looked “as if he wanted to jump out of his skin” and he "rolled his eyes in irritation,” and Alito was “pasty-faced, phlegmatic, conservative in demeanor.” (p. 332-34)
Toobin’s insights and asides about the justices and the workings of the Court are sprinkled on almost every page of The Nine. They include “the truth” about Supreme Court law clerks – they give an annual infusion of new energy, review cert petitions, and draft opinions, but they’re not as important as they think they are; about the limited role of the lawyer at oral argument – “largely a spectator as the justices talked to one another” (p.195); and observations about how the Court is run – “chaotic” under a vain and pompous Warren Burger but “efficient” and more congenial under a less pretentious William Rehnquist.
There is much discussion about the rise of the conservative right and their decisive influence in selecting new justices. “In law, as in politics,” writes Toobin, "the best troops came from the most passionate and engaged part of the conservative coalition – evangelical Christians.” (p.86) First, these troops forestalled the nomination of Alberto Gonzales because he was “not a movement conservative.” (p.268) Next, Harriet Miers (an “ideological clone” of President Bush) was forced to withdraw because evangelical leaders falsely portrayed her as a “closet liberal” since they were not sure she would follow their agenda on the Court. Then the right rallied around John Roberts because his earlier writings showed that he was an enthusiastic “solid constitutionalist” who supported school prayer and opposed affirmative action. Finally, Samuel Alito’s confirmation demonstrated how powerful the conservatives had become. As Toobin points out, in 1987 Robert Bork was defeated because he was too conservative and opposed Roe v. Wade. “In 2005, a nominee couldn’t be selected unless he or she opposed Roe v. Wade.” (p.266) Thus Alito was successfully supported by religious conservatives because he had written unequivocally that "the Constitution does not protect a right to an abortion.” (p.312)
Toobin also discusses why the Rehnquist Court was relatively moderate in its rulings. As the Court had been overwhelmingly Republican since 1991 (with 7 or 8 nominees of Republican presidents and only 1 or 2 Democratic nominees), why didn’t the Rehnquist Court carry out the conservative agenda to end affirmative action, reverse Roe v. Wade, and permit school prayer? Not only did the Republican justices fail to carry out the Republican agenda, but Toobin notes that the opposite took place after 2000, and the conservative coalition "crumbled.” The reason, explains Toobin, was “the legacy of Bush v. Gore that turned O’Connor and Kennedy toward their more liberal colleagues. Later, it was the Bush administration itself.” (p.227) O’Connor, for example, was outraged that “her Republican Party” had been hijacked by extremists who pandered in the Schiavo case, who politicized the affirmative action case, and who pursued a lawless approach to the war on terror. Another reason the conservative agenda stalled was that on issues of race, sex, and religion, O’Connor’s swing vote steered the Court in line with a moderate public opinion. Thus Toobin observes that the Court’s decisions between 1992 and 2005 "probably would have been the same if they had simply been put up for a popular vote.” (p.2) But with the appointments of Roberts and Alito, this was about to change.
The Nine documents the dramatic difference between Chief Justice Roberts’ public goal of “judicial minimalism” (respect for precedent, more unanimity and narrower opinions) and the Roberts’ Court’s opposite actions. In 2007, only 25 percent of the decisions were unanimous, one third of the cases were decided by a 5-4 vote, and “the pace of conservative change accelerated.” (p.331)
According to Roberts, judges are not politicians, they are like umpires; they “don’t make rules, they apply them.” (p.338) According to Toobin, “none of this is true,” and it is “folly to pretend” that interpreting the Constitution is like “calling balls and strikes.” (Id.) On the contrary, when interpreting the Constitution, it is the ideology of the justices, not precedent or the quality of the argument that controls the outcome of cases. Therefore, “one factor only will determine the future of the Supreme Court: the outcomes of presidential elections.” (p.339) “This,” concludes Toobin, “is as it should be.” (Id.)
Many readers will applaud The Nine’s provocative analysis and conclusions. Others will be outraged by its bias. Few will see it as an impartial narrative. This too is as it should be.
1 This and all subsequent quotations are from The Nine.