The Nine: Inside the Secret World of the Supreme Court.

The Nine: Inside the Secret World of the Supreme Court

Jeffrey Toobin 

Doubleday

www.doubleday.com

369 pp., $27.95

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With The Nine, CNN legal analyst and New Yorker staff writer Jeffrey Toobin offers his contribution to the current crop of inside stories about the Supreme Court. The book tells a story of the Court's evolution against a backdrop of struggle for conservative control of politics and government since the early 1990s. The issues and judicial nominations Toobin focuses on reflect critical points in this "conservative revolution" and illustrate a popular-culture context and influence in the Court's recent history. Some compelling issues covered include abortion, religion and the state, gay rights, affirmative action, and executive power and detainee rights.

Under this broad umbrella, Toobin discusses the unique back stories, tensions, and politics that converged to produce the outcomes in specific cases. Along the way, he reiterates his theme of struggle for conservative control over the Court and the other branches of government in discussing the political machinations surrounding the Clarence Thomas, Ruth Bader Ginsburg, and Samuel Alito nominations.

The book offers digestible descriptions of some of the more critical constitutional decisions of the last two decades. The addition of context (both personal and public) and internal Court dynamics transforms often complex judicial decisions into absorbing stories. To maintain this storytelling flow, the book forgoes substantive discussion of the cases and the justices' reasoning. This allows Toobin to do what he does best--draw the reader into the human element behind what legal scholars often paint in dry, academic terms.

For example, his discussion of Lawrence v. Texas, the case that overturned Bowers v. Hardwick, does not address the right to consensual and private sexual conduct under the Due Process Clause of the Fourteenth Amendment. Instead, Toobin juxtaposes Justice Anthony Kennedy's beliefs as a devout Catholic with his internationally influenced views on human rights, revealing the perspective from which Kennedy wrote his opinion. The account is both moving and reflective of the larger public conflict over gay rights.

Toobin's book probably offers little in the way of political or strategic revelation to Court insiders and scholars. Yet it succeeds, as Toobin's New Yorker pieces do, at revealing the personal elements that underlie political and strategic events such as the 2000 presidential election and ensuing Bush v. Gore litigation. Through anecdotes and personal histories, each justice emerges as a complex, multidimensional personality with redeeming and likable qualities as well as less attractive traits.

Many academics have expressed distaste for such revelations in light of their potential effects on the Court as an institution. Indeed, the brief discussion of one justice's eccentric (non)dating habits seems a little too gossipy. Still, most points regarding the justices' personalities and beliefs tie back to the conservative-struggle theme and caution against making blanket assumptions about the justices or viewing them in a one-dimensional light.

Litigators may appreciate some of the more humorous anecdotes about attorneys' appearances before the Court. For example, during the Bush v. Gore arguments, one attorney's nerves were so frayed that he referred to Justice John Paul Stevens as 'Justice Brennan"--who, at the time, had been retired from the Court for 10 years and deceased for three. He then addressed Justice David Souter as 'Justice Breyer," to which Souter responded, "I'm Justice Souter. You'd better cut that out." Amid laughter, Justice Antonin Scalia said to the lawyer, "I'm Scalia!" (The recounting of this story offered solace to a former classmate of mine who, in her first appearance before a court, replied to the judge with, "Pardon you, my honor.")

The book's closest cousin is probably Jan Crawford Greenburg's Supreme Conflict The Inside Story of the Struggle for Control of the United States Supreme Court (Penguin Press 2007), which also features well-written, interesting back stories and personality descriptions. The two books diverge in topical scope and perhaps political slant. Jeffrey Rosen's The Supreme. Court (Times Books 2007) provides similar background information in a more academic style and covers four critical moments in the Court's history from the Marshall era to the Rehnquist era. For a more substantive historical reference, The United States Supreme Court: The Pursuit of Justice (Christopher Tomlins ed., Houghton Mifflin 2005) offers a comprehensive review of the Court's history and decisions.

In the end, Toobin's skill as a storyteller makes The Nine an enjoyable read. He taps into the human element behind the legal and political dynamics that drive the Court's decision-making. This, together with Toobin's review of the political context of the Court's recent history, reveals the secret not only of the many factors that influence the Court's personalities but also how those personalities continue to influence the Court's dynamics.

CHRISTINE J. KYMN is a visiting assistant professor of law at the George Mason University School of Law in Arlington, Virginia.