Book Review: The Nine by Jeffrey Toobin

(New York; Doubleday: 2007)

In general terms, Toobin’s tome attempts to trace the recent history of the Supreme Court of the United States as it moved from the liberal penchant of the Warren Court through the Rehnquist Court to the Roberts Court, skipping largely over the strange ineptitudes of the Burger Court. This episode of the Court is covered by Bob Woodward’s The Brethren, to which Toobin makes reference; while case-law from this era is considered, the personalities that informed it are left pretty well alone, aside from some slight historiographical comments on the provenance of the information in The Brethren.

Toobin’s focus on how the personalities of the Justices influenced the manner of decision making strikes me as redolent of the philosophical school of American Legal Realism, in the sense of eschewing any particular rule of recognition for laws (Cf. HLA Hart) in favour of something more mutable. The exceptions to this theme being the principled stand of Justice Scalia, whose contributions to jurisprudential philosophy are, purposely or not, rightly reduced to a nonsense. We might be able to include Justice Thomas in this category, but the book argues instead of a paucity of philosophical foundation to Thomas’ jurisprudence. While Toobin doesn’t spell out the details of Scalia’s originalist arguments, he does highlight some of the absurdities as they occur in the chronology, while crediting Scalia with the courage of his (if I may say, erroneous) convictions. Thomas on the other hand seems a political animal albeit with no sense of politics. It should always be admirable to dissent when dissent is called for, the Thomas’ judicial philosophy mated with his obvious political philosophy are easily dismissed as ridiculous.

If there is a focus in principle, or a theme upon which Toobin hangs his narrative of the Court, it must be the idea of the swing vote in Judicial Conference; the decisions that split the court 5-4 one way or another. As a result, considerable time was spent discussing Sandra Day O’Connor. The only Justice on the Court who had held elected position as a State Senator in Arizona, her love of politics was something that caught me by surprise. Her comments at the viewing party on election night 2000 was also shocking news to which I had not previously been adverted- as Gore approached the threshold and appeared to win Florida, O’Connor exclaimed “This is terrible. That means it’s over.”

The eagerness demonstrated by the Court, and particularly by O’Connor and Kennedy is discomfiting. On Toobin’s account, the Court’s conservatives could hardly restrain themselves from putting the Florida State Court in its place due to their perception that (having nearly all been named to the court by Democratic governors) the State Court had been motivated by political concerns in allowing the recount to proceed. This is pointed up by the practical focus of the Supreme Court in concluding on the inefficiency of conducting a recount, despite the demonstrated plausibility of a recount under the schedule and aegis of the State’s senior judges, namely Judge Terry Lewis. This cringeworthy episode in the life of the modern Court is illustrated quite completely in Toobin’s able narrative style, leaving the reader in little doubt that O’Connor’s shame over the episode is absolutely justified.

If Bush -v- Gore is the definitive shame of this era of the Court, the careful maintenance of abortion rights as against the conservative tide rising in the Court and other branches of U.S. Government, stands as a record of unhoped for rectitude and appropriate reliance on stare decisis. Although I personally agree with Justice Ginsburg that Blackmun’s reasoning in Roe -v- Wade, and its reliance on the privacy standards developed through Griswold -v- Connecticut, is an incomplete if not incorrect Constitutional foundation upon which to set this contentious but crucial personal freedom, I appreciate the good faith shown by O’Connor in consistently re-evaluating her position. (Ginsburg, a preeminent women’s rights advocate in the mould of Thurgood Marshall at the NAACP, argued that abortion prohibitions were sex discrimination and therefore unconstitutional under the equal protections clauses.) O’Connor was thrown onto the horns of the dilemma in Stenberg -v- Carhart, concerning the overturning of a Nebraska law prohibiting later-term abortions, without any available exceptions for the health of the mother. It was this latter issue which proved the crux for O’Connor, causing her to side with the ‘liberal’ votes, overturning the Nebraska law.

There are many interesting insights into the functioning of the modern Supreme Court, too many to catalogue or review in these brief notes; there are issues of gun control near schools, prayer in schools, Article III Court nomination processes, and the expansion of the privacy issues to, inter alia, gay rights. The themes of this text in larger terms are instructive as a road marker for the direction of the Court, and its effect on politics. The rise of conservative influence on the Court is recent, and is likely to have ramifications for years, not only on the political and social atmosphere of the country, but also on the development of the philosophy of the jurisprudence of the American Constitution.

Whereas in the 70’s the idea of a living constitution was very current, it is increasingly a shibboleth of reasonable discussions that judges be mere interpreters of the text ‘within the four corners of the document.’ This flies in the face of American Legal Realism as I understand it, where despite the primary importance of the Constitution, the decisions taken by judges are understood to be robustly informed by their political and social milieu, rather than by the positivism adopted by the (until recently) subordinated judiciary of a country like the U.K. (subordinated, that is, to Parliament). It remains to be seen how the Roberts court will develop in this constellation. The new Chief Justice enjoyed a honeymoon period in which he prevailed upon his colleagues to issue a preponderance of unanimous opinions. This is particularly foreign to me having become accustomed to the delivery of speeches by the Judicial Committee of the House of Lords, where almost as a rule each Law Lord provides his own reasoning regardless of how concurrent the conclusion.

Ultimately, this is an excellent account of a period of the Supreme Court which as already become the past. With the retirement of O’Conner (replaced by Alito), of David Souter (replaced by Sonja Sotomayor) and of John Paul Stevens (replaced by Elena Kagan), the drift of the court is difficult to predict. Of cases like Heller -v- District of Columbia regarding the scope of the 2nd Amendment, or Citizen’s United -v- F.E.C., concerning political contributions and the legal personality of corporations, it is as yet unclear how the Court will drift, and upon what philosophical underpinning. It will not be long until another volume such as this one will be required.

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