Jeffrey Toobin's The NINE--a Review

After 338 pages of fluent prose, in which Toobin abundantly tips his hand on who his favorite Justice (or best source) was (Sandra Day O'Connor), he finishes his book with a statement that belies the entire argument of the book. He says:

"So one factor--and one factor only--will determine the future of the Supreme Court: the outcomes of presidential elections," 339.

Yet, Toobin has just spent the rest of the book telling us that despite the fact that only two Supreme Court appointments in the last 40 years have been made by Democrats, the political right has been frustrated in pushing its agenda on the Court. If the outcomes of presidential elections (or, more elegantly stated, "The Court follows election returns") was determinative, why does he argue that it was Rehnquist's lack of energy in the late 1990s, Katrina in 2005, or the events of 9/11 and the overreaching of the Bush Administration that has shaped the Court at least as much as the President who appointed the Justices? It may be that he quickly had to complete the book in order for it to be a hot sell for the holiday market (indeed, my son got it for me as a Christmas present); in any case, his blithe and unjustified conclusion suggests that he is like a pilot who loves to fly but hates to land. He is most in his element when he tells about the personal lives of the Justices and the intersection of personal, historical and judicial events; he is least able when he tries to "draw meaning" from it all or even to speak with much clarity about the present, much less the future. In fact, the "Roberts Court," which began Oct. 1, 2005, is only presented here as a sort of epiloque; the book is really about the last decade of the Rehnquist Court and the way that the court's unchanging personnel dealt with the "hot issues" of the period from about 1990-2005.

The Value of the Book

Despite the "hypeish" subtitle of the book (Inside the Secret World...), the value of the book lies in the things said here that aren't particularly secret. Toobin skillfully weaves narratives of the Justices' and some other lawyers' lives as well as the stories of several high-profile cases that came before the Court. He is especially deft at describing the circumstances in American life that provoked cases that arrived at the Court. For example, his description of the invention of the "partial-birth abortion" or "dilation and extraction" method of aborting a fetus, was extremely helpful in setting the stage for the Court's decision late in the 2000 term (Stanberg v. Carhart) to overturn the NE law disallowing the procedure, the Congressional pique at the Court's decision, and the subsequent Court's decision upholding the new federal law (pp. 132ff.). His treatment of the whirlwind of activities following the Bush v. Gore Presidential election on November 7, 2000 was an excellent refresher course on the issue, even if he didn't get into some of the issues related to why a recount of the "undervote" rather than the entire vote was the final item at issue in the case. In fact, he tells so many stories so well that it would be unfair simply to isolate only a few of them. These, then, are only a few examples.

What makes his book valuable is also the legal analysis that informs his narrative. In a book like this, meant for the "intelligent general reader" as well as legal professional, weighty legal discussions have to be kept to a minimum. But in his treatment of the 1995 Lopez case, for example, Toobin skillfully guides the reader through a rudimentary exposition of the commerce clause and its interpretation over the years. Or, in his discussion of the various rationales for supporting a woman's right to choose in abortion cases (privacy, equal protection, human rights, etc.), Toobin brings us into the tool shop of the Justices and shows us how some of them slice.

Toobin is valuable, also, in his description of a few of the personalities, but especially the energy, behind the emergence of the most powerful legal movement of our generation--the conservative Federalist Society. Though he doesn't attempt to provide anything like a history of that movement, he shows that the forces unleashed through the backlash against the liberal jurisprudence of the 1960s and 1970s (perhaps culminating in Roe v. Wade in 1973) soon began to shape the judicial landscape in the 1980s and 1990s. Chalk up the appointments of Chief Justice Roberts in 2005 and Justice Samuel Alito in 2006 to the force of this movement.

Thus, I can say without a doubt that anyone interested in the general flow of some important issues in the Supreme Court's docket from about 1990-2005 would be well-advised to pick up Toobin.

Questions/Deficiencies

Despite the fact that the book's title invites speculation that a "Jason Bourne-type" story of intrigue and mystery is about to unfold, no such story emerges. And, in a way, that is inevitable because life at the Court, like life in most law firms or courts, is generally pretty dull, except for the occasional fireworks, posturing or interesting cases. It would have been helpful had Toobin provided the reader a little bit more about the nature of the Court's cases. By "skimming" the "sexiest" cases, it makes the Court look like the popular body of mythology--always working on blockbuster issues in American life. But some "nuts and bolts" of the Court's operation would have helped out the reader, I think. It would have given us both the sense of the continuity and newness in the Court's work.

Then, Toobin's account is pretty conventional, despite the promise of "secrets." That is, he takes the view from the "center," delighting most in the stories provided him by Justice O'Connor, and suggesting not-so-subtly that the Court's center as exemplified in O'Connor really reflects the correct "balance" that the Court needs to demonstrate. But because of its conventionality, he isn't very interested in cases that might not make it on the "East Coast" spectrum of interesting cases. For example, a January 2006 case Gonzales v. Oregon, upheld a lower court's decision which said that then-AG John Ashcroft had gone to far in passing regulations which would severely punish Oregon physicians participating in legal (under Oregon law) assisted suicide. Toobin doesn't mention the decision or the issue which, in my judgment, is bound to grow over the years. This will be a valuable precedent for states which pass laws similar to Oregon's Death with Dignity Act.

Finally, as I suggested above, Toobin seems to end his book too early--at the installation of Chief Justice John Roberts late in Sept. 2005. He mentions the Alito confirmation hearings and a few things about the "pasty-faced" judge from the 3rd Circuit, but you can tell that his real interest was in the dynamics of the Rehnquist Court, especially the latter years of his tenure as chief. I would have preferred that he ended the book with an awareness of some of the cases in the 2007-08 term. Is the Court primarily just going to focus on "fine-tuning" some laws? Are there "big issues" which will allow the Court to show its new-found and seemingly secure conservative approach to judging? If he had only taken us slightly below the surface of the "hot-button" issues, such as affirmative action, abortion, Guantanamo, death penalty and commerce clause interpretation, he could have focused on a "second order" series of cases--such as in the area of employment law or criminal sentencing law or even tax law. There are at least five tax-law cases on the Court's docket this year. Or he also could have pointed out that there seem to be a lot of "single issue" cases on the docket--without any implication beyond the case brought to the Court (i.e., on NY elections law; on Judge Alex and his fee dispute; on aspects of arbitration agreements; on special education law).

Conclusion

Thus, The Nine is a good and breezy read, but it hardly takes you into the "secret" world of the Court, nor does it take you very deeply into the world of the Court. But it provides a wonderful window into an institution that helps mark in very visible ways the development of our American culture. For that, we should be grateful.

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