Book Review: The Nine: Inside the Secret World of the Supreme Court.

Jeffrey Toobin's The Nine: Inside the Secret World of the Supreme Court (2007) provides a telling behind-the-curtain view of the nation's highest court.

In any arena, having a "backstage pass" can produce both positive and negative experiences. On the positive side, one can learn amusing anecdotes and observe personality quirks not accessible to the general public or audience. On the negative side, one can see the varnish coming off the performers or performance.

Through extraordinary access to the justices and more than 75 of their clerks (p. 342), this book also provides remarkable insight into the processes and people involved with the Supreme Court. More than once I surmised the only way a particular story could have found itself into Toobin's text was a justice (or his or her clerk) telling him. For examples, the book tells what Justice O'Conner privately did after resigning (she wept), and the substance of a sealed memo delivered from Justice Scalia to Justice Ginsburg about her proposed footnote in a Bush v. Gore opinion. "In a late draft of her dissent, Ginsburg drew on certain early press reports about the black vote in Florida to suggest in a footnote that, if there was any equal protection violation by the state, it was more likely by state and local authorities than by the Florida Supreme Court. The footnote sent Scalia into a rage, and he replied with a memo--in a sealed envelope, to be opened only by Ginsburg herself--accusing her of 'fouling our nest' and using 'Al Sharpton tactics.' Ginsburg backed down and removed the footnote." (pp. 173-74.)

The abortion, capital punishment, racially conscious affirmative action, and the Bush v. Gore election cases all receive meticulous attention. In each, Toobin explains how each justice's philosophy and predilections ultimately drive the result. In so doing, Toobin does not, as he cannot, leave the impression that this outcome-determinative judging is solely the domain of conservatives. Toobin correctly observes: "[Justice] Breyer's wan longing for stare decisis will stir few hearts. Breyer and his liberal colleagues (joined on this occasion by Kennedy) did not care about stare decisis when they voted in Lawrence v. Texas to overturn the Court's barely seventeen-year-old decision in Bowers v. Hardwick." (p. 339.)

Toobin also explores the Court's history and bruising confirmation battles, including an interesting twist regarding Harriet Miers' nomination: Miers' preferred choice for the High Court was Samuel Alito, who ultimately obtained the seat.

Toobin takes a step back to examine the political pressures brought to bear on the Court, including the religious right's shaping of the American political landscape. This narrative seems almost requisite in today's political books; for example, it's weaved into 2007's God's Harvard and Crazy for God (both reviewed here earlier).

On top of superb access, careful and exhaustive research, and a working knowledge of the material (Toobin's a Harvard Law graduate), Toobin's particular skill is his ability to deliver clean, crystalline and compelling prose. I've read a couple of other Toobin books, e.g. The Run of His Life (about O.J. Simpson's criminal trial) and Opening Arguments: A Young Lawyer's First Case: United States v. Oliver North (about Toobin's own involvement in this political case). As a result, I've come to believe, like James B. Stewart's works, almost anything Toobin writes is worthy regardless of topic.

While Toobin draws the curtain back to foment understanding of the Court, he ultimately exposes it as a political institution. Toobin indicts: "[W]hen it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy--ideology--and that means everything on the Supreme Court." (p. 339.)

Likewise, Toobin writes: "It is folly to pretend that the awesome work of interpreting the Constitution, and thus defining the rights and obligations of American citizenship, is akin to calling balls and strikes. When it comes to the core of the Court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases." (p. 338.) (Emphasis supplied.)

I can think of no more fitting sentiment on this thirty-fifth anniversary of Roe v. Wade.