Book Review: Jeffrey Toobin’s The Nine

The Nine: Inside the Secret World of the Supreme Court
By Jeffrey Toobin
Doubleday, 369 pages, $34.95

The U.S. Constitution, Charles Evans Hughes once remarked, is precisely “what the judges say it is.” But judges are appointed by presidents. And presidents, in turn, rely on the support of social movements. Can we therefore take Hughes’ maxim to its logical extreme – that the Constitution is what the President’s support base says it is?

The answer, according to Jeffrey Toobin, is complicated. On one hand, the American conservative movement’s decades-old campaign to transform the U.S. Supreme Court in its image has largely been a failure, marked by unsuccessful legal arguments and judicial appointments that didn’t quite work out as planned. On the other hand, these failures have also hardened the movement’s resolve, and left it more determined than ever to fill the Supreme Court with justices who subscribe to its agenda – religion in the public sphere, greater executive power, speedier executions, an end to affirmative action, and the reversal of Roe v. Wade.

Mind you, Toobin’s new book is not only a history of the culture wars. Rather, as the title suggests, The Nine: Inside the Secret World of the Supreme Court is also a revealing portrait of the personalities that make-up the high court. More generally, it’s a book about judging and the complex, often unpredictable array of factors that are brought to bear when the justices sit down to rule.

Indeed, these factors help to explain why, for the last twenty years, a Court comprised largely of Republican appointees has so disappointed the American conservative movement. From Toobin, we learn that the justices are influenced in part by legal values that defy left-right categorization – William Rehnquist’s fascination with court administration, Anthony Kennedy’s keen interest in foreign jurisprudence, and David Souter’s firm, almost “mystical” attachment to stare decisis.

Toobin also provides an inside look at procedures for assigning written opinions. We learn, for example, that majority opinions are often assigned to the justice whose support for the majority position seems shakiest. In close cases, this practice has helped many a majority to secure victory. However, it has also had a centripetal impact on the jurisprudence, since the resulting opinion often goes less far than other members of the majority might have hoped.

Further, we learn that judges are influenced by forces – such as world events and relationships with fellow justices and court staff – that are unpredictable, and thus, rarely contemplated during the vetting process that precedes appointments. For example, the emergence of openly gay law clerks at the Supreme Court helps to explain why, just seventeen years after upholding a criminal ban on sodomy, the justices recently reversed course and deemed such bans unconstitutional.

Finally, we learn that judgments are in part a function of personality. Detailed descriptions of hobbies, travel habits, and the décor in each justice’s chambers give us a better sense, not only of personality, but also of judicial temperament. For example, while Clarence Thomas travels the country in an RV and is highly suspicious of using foreign jurisprudence to interpret the Constitution, we learn that Kennedy is a world traveler, whose learnings abroad have had a significant influence on the Supreme Court’s recent death-penalty jurisprudence.

These profiles are Toobin at his best. A trained lawyer who made the switch to journalism in the mid-nineties, Toobin has both a grasp of law that’s unique among journalists, and a knack for story-telling that’s rare among lawyers. In both regards, the book could be compared to The Brethren, the ground-breaking 1979 text by the journalist-lawyer tag-team of Bob Woodward and Scott Armstrong, which provided readers with a similarly intimate look inside the Rehnquist Court’s immediate predecessor, the Burger Court.

Alas, while his profiles of the justices are excellent, Toobin’s story-telling also contains gaps. His emphasis is clearly on the judicial role in the culture wars; areas of law that ignite less passion receive the short shrift, no matter how significant the Supreme Court’s work in these areas. While entire chapters are dedicated to decisions not to overturn earlier rulings on abortion or affirmative action, federalism – arguably the one area in which the Rehnquist Court significantly changed course – receives relatively little attention.

We’re also told relatively little about Toobin’s sources. A post-script explains that he relied on interviews with the justices and several of their clerks. However, The Nine contains few footnotes, and none of its sources are identified by name. Among reviewers and bloggers, this has sparked something of a guessing game about who Toobin spoke to. But it should arguably concern the rest of us, as well. If judges and clerks are half as self-absorbed and determined to re-write history as this book suggests, it’s reasonable to conclude that some might have also been tempted to provide the interviewer with a somewhat one-sided version of events.

These concerns aside, The Nine succeeds in its goal of explaining why, to the disappointment of many conservatives, the Rehnquist Court pursued a fairly moderate course, delivering majority opinions that closely tracked public opinion on issues ranging from abortion to affirmative action.

Of course, the Rehnquist Court rarely spoke with one voice on these issues. On the contrary, victory often went to whichever side could secure the support of one justice in particular – Sandra Day O’Connor. With a pragmatic style and written opinions that demonstrated relatively little interest in legal doctrine, Toobin argues that O’Connor established herself as a “reliable vector for the views of most Americans.” In this regard, she could perhaps be compared to another justice whose written opinions contained few references to precedent, but who exercised a similarly profound influence on the institution – former Chief Justice Earl Warren. (This mutual tendency toward pragmatism may in turn be explained by the fact O’Connor and Warren both held elected office before joining the Supreme Court, a trait shared by just one other modern justice, Hugo Black.) For all these reasons, Toobin rightly argues that, on several issues, the Rehnquist Court was in fact the “O’Connor Court.”

Admittedly, there is a temptation to think all this is unprincipled, and that there’s something – to use one of O’Connor’s favourite words – “unattractive” about the notion of jurisprudence influenced by personality, personal relationships, world events, or (heaven forbid!) public opinion. Surely these influences defeat the cherished notion that the justices should rise above the petty fray of politics – a notion symbolized by the majestic steps which greet visitors to the Supreme Court, and with which Toobin begins The Nine.

But Toobin’s profiles also have a way of endearing us to the individual judges, so that their law comes to seem less distant, and more human. From Toobin, we learn that Supreme Court justices have doubts, egos, foibles, and even emotions. (For example, we learn that O’Connor quickly came to regret her 2005 retirement, while Souter wept with disappointment and nearly opted for early retirement following Bush v. Gore.) Perhaps more important, we learn that judges are affected by their experiences, and capable of change in response to new ideas and changing circumstances. Judges, in other words, are people, too.

However, while the justices can perhaps be forgiven for producing opinions shaped in part by these ‘intangibles’, The Nine suggests we should be quite wary indeed about another force operating on the jurisprudence – namely, ideology. Unlike personality, personal experience, or the public mood, ideology tends to be inflexible, and offers little opportunity for growth or moderation. Its judicial adherents, in turn, are so certain about the correct outcome in each case, that other influences are unlikely to convince them otherwise. For example, Toobin notes that Clarence Thomas, the current Court’s most hardened ideologue, went the entire 2006-07 term without asking a single question of counsel.

Perhaps more worrying, Toobin finds that ideology’s grip on the Supreme Court has strengthened in recent years. It was laid bare in Bush v. Gore. And it was equally apparent in the recent appointments of John Roberts and Samuel Alito. In a blow-by-blow of the vetting process that preceded the Roberts and Alito appointments, Toobin describes how candidates were scrutinized like never before, with a view to determining whether they were truly “movement conservatives.” His implication? That the “days when justices surprised the presidents who appointed them are over.”

Of course, Toobin may prove wrong. If The Nine teaches us anything, it’s that judges are unpredictable. One wonders, for example, whether Roberts’ impact may be blunted by his desire for unanimity, or by his firm belief in minimalism – the philosophy that courts should narrowly tailor their rulings to the case at bar. If so, the Roberts Court may yet disappoint its conservative base, and prove to be just as moderate as the Rehnquist Court before it.

But such surprises are unlikely, in Toobin’s estimation. Instead, he foresees a Court whose rulings are determined solely by the ideological bent of its members – a worrying prospect, not because this bent will be conservative for the foreseeable future, but because the job of constitutional interpretation should never be left to judges incapable of reflection, growth or moderation.