The subtitle to Jeffrey Toobin’s The Nine is “Inside the Secret World of the Supreme Court”. Having read The Brethren: Inside the Supreme Court by Bob Woodward and Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court by Edward Lazarus, I was excited about Toobin documenting the court in more recent times but skeptical of any secret world that the title purported. Toobin’s book mainly encompasses the Rehnquist Court from the late 1980’s and the beginning of the Robert’s court up to around 2008. The period of time from Breyer’s nomination in 1994 to the O’Connor and Rehnquist departures in 2005 was the longest that 9 Justices served together. Toobin explores throughout the book each of the Justices’ nominations, backgrounds, character, personality, legal philosophy and political philosophy. As the book progresses more emphasis than ever is put on political ideology.
Toobin profiles all 9 of the Justices but focuses much more heavily on Sandra Day O’Connor and Anthony Kennedy for the fact that they are the two whose vote swung so many decisions. Clarence Thomas is portrayed as a gregarious and outgoing fellow but bitter and pushing a legal and political philosophy that is so out of touch to be compared to the 19th Century court. As he spends more time on the bench the impression given by Toobin is that he is mailing it in, in fact in one year he never asked one question throughout all the oral arguments. Scalia, Ginsburg, and Stevens are portrayed as highly intelligent but married to one side or the other. Rehnquist is portrayed as a keen administrator who as his career progressed became less involved in affecting the law as he was in making sure it was efficiently processed. Breyer and Souter had more light shown in their direction. Souter was notable because of the distinctly odd or ascetic lifestyle he lives, he still only uses a fountain pen for example. Breyer, a pragmatist and worldly justice, developed a great relationship with O’Connor and also influenced much of how the Court decided in those 11 years.
Perhaps the biggest focus on an individual case in this book was the monumental Bush v. Gore. Toobin describes the history briefly and illustrates the hubris of the Justices and their political motivations. It was, perhaps, one of the Supreme Court’s worst moments in history along with cases like Dred Scott. However, much of the book is not about specific case law as opposed to the generalities of the Justice’s political and legal thinking. That makes the book much more of a narrative and perhaps more entertaining than other Supreme Court tomes. Toobin does a wonderful job at showing just how fragile the law really is because it exists as the whims of 9 Justices and when they change one can be sure that the law will shift too. The old myth of the Justices only being arbiters of the law not creators of the law is shattered by Toobin, especially when he exemplifies how quickly the Robert’s Court, which made a dramatic lurch to the right, was apt to turn over major precedents.
Toobin’s look into the modern Supreme Court was enlightening but also disheartening as one ponders the thought of a Supreme Court filled with extremists and the damage they may cause. Unlike the rest of our nation’s government, the Supreme Court is not accountable to anyone but themselves. Justices like O’Connor were always quick to measure how the Public felt at large with her rulings and that is one reason she was so effective. If anything, in The Nine: Inside the Secret World of the Supreme Court Toobin illustrates the best and the worst of the Supreme Court system, but like most systems it is usually only as good as the people that occupy it.