The Nine

This article is reprinted with permission from the October 11, 2007 edition of the New York Law Journal. Copyright 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.  

10/11/2007 N.Y.L.J. 2, (col. 3)

New York Law Journal
Volume 238
Copyright 2007 ALM Properties, Inc. All rights reserved.

Thursday, October 11, 2007

LAWYER'S BOOKSHELF

News

The Nine: Inside the Secret World Of the Supreme Court

By Jeffrey Toobin. Doubleday, New York, N.Y. 384 pages, $27.95
 

Reviewed by Phil Schatz
 

Because it operates largely above the political fray and is anchored by precedents, tradition and the Constitution, the U.S. Supreme Court is very slow to change. Politicians who have tried to shape the Court to their ends are almost always disappointed; Justices who have been appointed to change the Court have more often been changed by the Court. The Court has functioned, for good and ill, as the antimajoritarian counterweight intended by the founders. The Court's institutional stubbornness has contributed to making the Court the most admired of American institutions.

It is also one of the most devoutly loathed. Since the perceived excesses of the Warren years, conservatives have made it a high priority to obtain a solid working majority on the Court. These efforts have been diligent, sustained, innovative -- and unsuccessful. Although it has been 30 years in the making and fueled by rightwing think tanks, media echo chambers, the Federalist Society of true believers, and relentless smear campaigns against judges in general and the Court in particular, the conservative counter-revolution has been stymied by institutional inertia and by the adherence of appointed justices to principles of stare decisis and precedent. Conservative hopes of a solid majority have come tantalizingly, achingly close to fruition, only to vanish like so many desert mirages. Despite substantial changes in personnel, the Court has done little more than list rightward.

Until now. As chronicled in Jeffrey Toobin's illuminating new book The Nine: Inside the Secret World of the Supreme Court, conservatives are now close to total control of the Court. More notably, ideas that were only recently at the fringe of intellectual responsibility -- such as the power of the executive to ignore laws of Congress, to hold or to spy on American citizens without judicial review, and to authorize torture -- may now even command a majority on the Court. The Nine is an examination of how this change occurred and what it may portend.

It is also an inside-baseball examination of the various personalities on the Court. Toobin was blessed with access to many of the Justices themselves as well as 75 of their law clerks, all on a not-for-attribution basis, and his descriptions of the behind-the-scenes motivations and maneuverings of the Court and its Justices are crisp and believable. The portraits of the Justices themselves are compelling and fair; although some are criticized more than others, none of them is depicted as anything less than a real (and thus fallible) human being.

The Justice who comes across the worst is Clarence Thomas, who undoubtedly lied during his confirmation hearings about his willingness to respect precedents (not to mention other things). Still nursing resentments from that bruising battle, he has crawled into a conservative bubble. He limits his public appearances to hand-picked audiences of ideological soul-mates, and he insists that his law clerks be prescreened to ensure ideological purity. (The screeners have included John Yoo and Jack Goldsmith, the architects of the Bush administration's pro-torture policies). He refuses to participate in the Court's oral arguments; in the last term he didn't ask a single question. He accepts substantial book advances and gifts from fellow conservatives -- far more, in fact, than any other member of the Court. He opposes affirmative action even though he would not be where he is today without it. Yet, he can be warm and endearing; although he opposes gay rights, he treats his gay law clerks with the same 'boisterous bonhomie' as his other law clerks.

Some recent reviews have suggested that Justice Sandra Day O'Connor is the hero of the book. She presumably was an important source of information (Toobin says that she views George W. Bush as 'arrogant, lawless, incompetent, and extreme,' and it is difficult to believe that this opinion didn't come from her directly, off-the-record or not), and Toobin clearly admires her. A true Republican (in the old sense of fiscal restraint and limited government), she loved the Court and relished her position as the crucial swing vote for much of the 90s until her retirement in 2005. During her tenure, Justice O'Connor's case-by-case approach resulted in a series of majority opinions that tracked, to a remarkable degree, the opinions of a majority of Americans. Toobin reflects that her judicial approach was 'indefensible in theory and impeccable in practice.' Since her resignation, to care for her beloved husband of 50 years, she has been an effective and outspoken proponent of judicial independence and the importance of respect for the courts.

She is not, however, the hero of the book. John Paul Stevens is. Stevens is willing to sacrifice his ego to obtain consensus and respect for the Court as an institution. Because of his extraordinarily long tenure on the Court (he was appointed by Ford in 1975), Stevens knows that it takes a long time, sometimes decades, for troublesome issues of Supreme Court jurisprudence to be resolved. He further knows that yesterday's loser can be tomorrow's winner. His 1986 dissent from Bowers v. Hardwick (upholding Georgia's sodomy statute), for example, was vindicated by Justice Anthony Kennedy's 2003 majority opinion in Lawrence v. Texas (invalidating Texas's statute and explicitly overturning Bowers ). Alone among the Justices, Stevens was not burned by the partisan flame of Bush v. Gore -- an embarrassing and shameful episode, in Toobin's opinion. A veteran of the Pacific Theater and winner of the Bronze Star, and former law clerk to Justice Wiley Rutledge, Justice Stevens eviscerated Ted Olson's dramatic 'we are at war' opening in Rasul v. Bush with a series of questions demonstrating that the Bush administration's rationale for the suspension of habeas corpus did not depend upon a state of war. Like the president who appointed him (who emerged from retirement to mobilize corporate leaders and retired military officers to save affirmative action), Justice Stevens is not willing to sacrifice his integrity for the sake of ideology.

Toobin also has great fondness for Stephen Breyer, the 'sunniest individual to serve on the Supreme Court in a great many years' and a believer in the power of government to serve people and solve problems, and David Souter, who has the habits of a gentleman from another era, including an abiding respect for precedent and the rule of law as the rightful glue of a just society.

That glue may not hold. Justice Thomas does not believe in stare decisis at all. With the addition of the charming Chief Justice John Roberts and the charmless Justice Samuel Alito (both of whom carry the Federalist Society's imprimatur of ideological purity), the Court has been transformed. In its first term, the Roberts Court engaged wholesale in the juridical equivalent of the presidential signing statement, simply refusing to enforce prior decisions of the Court. In such diverse areas as abortion, campaign finance, church-state relations, and affirmative action, the Roberts Court has effectively overruled prior precedents, without expressly saying so. Justice Antonin Scalia, who never was one to mince words, says that '[t]his faux judicial restraint is judicial obfuscation.'

Because the Roberts Court is in its infancy, 'The Nine' feels unfinished, like a teaser for a movie still in production. What kind of a movie will the Roberts' Court be, when all is said and done? A feel-good Capraesque drama about the triumph of honest American values over corporate greed and corruption? Or 'The Invasion of the Body Snatchers' redux, in which humorless pod people take over our institutions by stealth? Based on its inauspicious beginnings, the horror picture may be the better bet.

Phil Schatz is a member of Wrobel & Schatz.