Book Review: The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin
Recommended for people who like: Law and Order, The Daily Show, anything by Howard Zinn, reading footnotes, abovethelaw, Dahlia Lithwick or anything written by the Jurisprudence department of Slate.com.
The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin is an examination of the Supreme Court during the tenure of Chief Justice Rehnquist. Please don’t be turned off because of its (boring!) “history” label. Some of the “history” lessons that I learned:
- pre-SCOTUS appointment, Justice Clarence Thomas drove a black corvette (“‘REZ IPSA,’ the vanity license plate said, a play on the Latin legal phrase that means ‘The thing speaks for itself.’” p. 41)
- Clinton appointed two Jews to the Supreme Court – Justice Ruth Bader Ginsburg and Justice Stephen Breyer
- Chief Justice John Roberts played a part in advocating for Bush v. Gore as a private attorney…and he adopted his two kids
- Jay Sekulow, “a nice Jewish boy from Brooklyn” who later “committed his life to Jesus Christ” as a “Jews for Jesus,” is the force behind many of recent First Amendment cases that have to do with free exercise, free speech, and the Establishment Clause
- Souter, a bachelor, lives like he’s straight out of Walden
The book describes the idiosyncrasies of the justices (for example, who knew about Sandra Day O’Connor’s partying or her rigorous exercise schedule). More importantly, it shows their growth and their stubborn resolve as they interpret, apply, and create Court precedents such as Bush v. Gore, Lawrence v. Texas (overruling Bowers v. Hardwick), Ropers v. Simmons (overruling Stanford v. Kentucky), Roe v. Wade, Planned Parenthood v. Casey, Grutter v. Bollinger, Gratz v. Bollinger, Hamdi, Padilla, United States v. Lopez, and Kelo.
By default, The Nine shows the rise of the conservatism on the Supreme Court and in the public at large. It gives its readers a brief history of the Federalist Society, a student organization borne within the halls of Yale Law School and the University of Chicago, under the tutelage of Professors Antonin Scalia and Robert Bork.¹ When Chief Justice Burger resigned in 1986, Rehnquist was Reagan’s obvious pick. “During his fourteen years on the Court, William Rehnquist had grown from being an often solitary voice of dissent to the leader of the Court’s ascendant conservative wing.” After Chief Justice Rehnquist untimely death, George W. Bush faced a tougher decision because he had a choice of pro-life conservative justices.²
Too bad the election is tomorrow or I would say that this should be required reading for anyone who is thinking about pulling the lever on November 4th, 2008.
Instead, I will give you the short speech…found in the very last paragraph in the paperback edition on pages 410 – 11):
Indeed, at this precarious moment in the Court’s history, it is hard to say for sure which issues are settled for the long term. The 4-4-1 breakdown of the justices guarantees that on most any controversial issue, the majroity will be tenuous. This is especially true on the most politically explosive issues before the Court – abortion, above all. The replacement of a liberal by a conservative – or of a conservative by a liberal – will transform the law, perhaps for a generation. To many, the polarized state of affairs is cause for dismay; the hope for a middle ground – for “the law” to become clear – endures. But this, as the framers knew, remains a false hope. The justices of the Supreme Court are selected by the president and confirmed by the senate because they are part of the grand political design that is our Constitution. And so, with their votes and through this system, the people pick their Supreme Court. In 2008 especially, but in ever election as well, the Court’s future is up for a vote.³
FN1. As the book was written pre-Obama-fascination, there is no mention of Obama’s constitutional law exams or his affiliation with Bill Ayers or the National Lawyers Guild…all that is mentioned is “a movement known as Critical Legal Studies.” (“Drawing heavily on the work of thinkers like the Italian Marxist Antonio Gramsci and the French post-structuralist Jacques Derrida, CLS devotees attacked the idea that law could be a system of neutral principles, or even one that could create a fairer and more just society. Rather, they viewed law mainly as a tool of oppression that the powerful used against the weak. Whatever its ultimate merits, CLS was singularly inconsequential outside the confines of law schools, its nihilism and extremism rendering it largely irrelevant to the work of judges and lawmakers. At law schools, then, the field was largely open to a vigorous conservative insurgency.”)
FN2. In the end, he appointed now-Chief Justice John Roberts, Rehnquist’s former clerk on the Court, to fill his mentor’s shoes.
FN3. For you nerds who can’t get enough of your Supreme Court fix, here’s a *BIG* excerpt from an article by Tony Mauro entitled “Bush Got a Conservative Court, With Caveats” published here in full.
Bush Got a Conservative Court, With Caveats
November 03, 2008
Most Court commentators believe conservatives are finally riding high in the saddle at the Supreme Court—and enjoying it. Increasingly, their ascendancy is being viewed, as author Jeffrey Toobin puts it, as President George W. Bush’s “most enduring triumph.” In The New York Times, Linda Greenhouse, now retired from the beat, wrote that it is “the Supreme Court that conservatives had long yearned for and that liberals feared.” NPR’s Nina Totenberg chimed in that conservatives “seem to have reached the promised land.”
Without being churlish, it is fair to wonder whether even this part of the Bush legacy is the shining success it is cracked up to be. Has the Court yet gotten all the way to conservative nirvana? A new law review study of the Roberts Court’s decisions concludes, in a play on Greenhouse’s 2007 assessment, that “conservatives should continue to yearn, and liberals should not fear.”
From the viewpoint of business litigants, says Sidley Austin’s Supreme Court expert Carter Phillips, “If the world had truly changed, employers would have won a lot more cases than they did last term.” Adds Mayer Brown’s Dan Himmelfarb: “Moderate conservatives being replaced by pragmatic conservatives hasn’t made much difference in most cases.”
Coming months will bring new tests of just how far to the right Bush has turned the Court. A crucial drug safety case, Wyeth v. Levine, is set for argument on Nov. 3, asking whether federal drug-labeling law pre-empts state product-liability tort actions. Will the Roberts Court heed the strong call of business to favor federal pre-emption over unruly state court litigation? A ruling that pleases corporations is considered likely—but not certain.
And then, of course, there is the election, which will determine if what Bush began on the Supreme Court gains momentum or stops in its tracks, halted by the prospect of a President Barack Obama appointing—or even just a Democrat-dominated Senate confirming—the next Supreme Court nominees.
‘A VERY TRICKY BUSINESS’
Few dispute that Bush’s campaign to move the Court to the right was a deliberate journey, launched by Federalist Society Republicans who had been awaiting their moment for decades. But serendipity and lucky moments of history helped enormously to create the Roberts Court. If key events had broken differently, the Supreme Court might have been added to the list of unconsummated Bush administration projects, right next to Social Security reform and energy independence.
As one top former Justice Department official put it, “Roberts and Alito were inspired picks, but I don’t think anyone should ever forget who his second choice was.” Even the proudest architects of the Bush Supreme Court legacy wince at the memory of Harriet Miers.
The administration’s obsession with Supreme Court appointments began even before George W. Bush was elected in 2000. In 1999, Bush invited conservative lawyers—among them, Reagan Attorney General Edwin Meese III—to Austin, Texas, to discuss judicial selection, says conservative lawyer Leonard Leo, an informal adviser on the subject from that point on. “There was a sensitivity that judicial selection was a very tricky business,” Leo recalls, and a desire to get started early. As a son of the first President Bush, George W. Bush had seen and felt the disappointment (Souter), the agony (Clarence Thomas), and the success (again, Thomas) that the power to appoint justices could bring.
Then came the 2000 election itself, producing a baptism by fire called Bush v. Gore. The ordeal left an unavoidable, black-robed birthmark on the Bush administration, a profound reminder that the Supreme Court matters. “It was impossible to have had that supercharged judicial experience and not walk away with a deep sense of the awesome power of the judiciary,” says Leo.
When Bush was inaugurated, “we prepared from day one,” according to one top staffer. The goal was to prevent a mystery candidate like Souter from sneaking to the front of the line. While some administrations task the Justice Department with judicial selection, Leo says, “it was flipped in this Bush administration” to the White House counsel’s office, headed by Alberto Gonzales. “That’s where the president had his closest friends,” Leo adds.
The list of potential Supreme Court nominees that emerged from the counsel’s office was heavy with Texans and a fair sprinkling of Hispanics [See list, page 8]. Roberts, then in private practice, was not on the list, and neither was Miers. But Alito, a solid conservative on the U.S. Court of Appeals for the 3rd Circuit, was.
The important thing was that there was a list to work from. Mistakes come when the staff is caught unprepared, officials believed, leaving a vacuum for mystery candidates—like Souter—to fill. “Heaven help you aren’t ready when the time comes,” says Timothy Flanigan, then-deputy White House counsel and now a partner at McGuireWoods in Richmond, Va. “Everybody hopes for and dreads a vacancy at the same time.”
As the years went by without vacancies, according to another former senior official who requested anonymity, Alito and Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit emerged as front-runners. Alito’s early prominence comes as something of a surprise; he rarely appeared near the top of media short lists. “I’ve never seen much of a correlation between the real list and the one that is spoken of publicly,” shrugs Flanigan.
The passage of time also helped Roberts. He’d been nominated to the U.S. Court of Appeals for the D.C. Circuit, and began serving in June 2003. By 2005 he had enough judicial heft that his biggest fan, deputy White House counsel David Leitch (now vice president and general counsel of Ford Motor Co.), could push him for the Supreme Court. Any earlier and it would have been a tough sell.
HITTING HOME RUNS
What the administration was seeking, according to conversations with participants, was a mix of ideology and excellence. The goal was to find impeccable Supreme Court nominees whose talents and intellect were so unimpeachable that their strongly conservative stripes would not defeat them.
“The conversation isn’t, ‘he’ll vote right on abortion,’ ” says Leo, “because conservatives have learned you can play that game all you want and you’ll still have a 50 percent chance of being wrong.” Instead, the “cafeteria talk,” Leo continues, was, “do you hit a home run or trade up?” Leo defines “trading up” disdainfully as appointing someone who is only a notch more conservative than his or her predecessor instead going for full ideological purity. In 2005, Leo took a leave of absence from his job as executive vice president of the Federalist Society to serve as one of the president’s key advisers on high court nominations. By then, Leo says, the debate over what kind of nominees should be sought was over. “It was all about hitting home runs,” he says, rather than appointing “85-percenters.”
Leo was one of the “four horsemen,” as they were called, who consulted daily with the White House on high court nominations. The others were Meese, Christian-right attorney Jay Sekulow, and C. Boyden Gray, White House counsel under the first President Bush.
So the stage was set when the events of the summer of 2005 began. Just before the term ended in June, Justice Sandra Day O’Connor went to chat with her ailing, longtime friend Chief Justice William Rehnquist about the future. A strong institutional impulse at the Court compels justices not to burden the nation with more than one vacancy at a time, so she wanted to see what Rehnquist’s plans were. O’Connor’s husband, whose Alzheimer’s disease was worsening, needed her, but if Rehnquist was about to announce his retirement, she’d defer to him and stay on. Rehnquist, suffering from a virulent form of thyroid cancer, said he would not resign. “Well, okay, I’ll retire then,” was O’Connor’s reply, according to Jan Crawford Greenburg in her authoritative 2007 book Supreme Conflict.
On July 1, after the term had ended, O’Connor stunned Washington by announcing she would retire when her successor was confirmed.
The White House was ready for a vacancy—though staffers had expected they would be looking for a replacement for Rehnquist. Conservative activists were ready, too, and they quickly snuffed out Gonzales’ chances to be named. “Gonzales is Spanish for Souter” was one fatal slogan.
Though Leitch pushed hard for Roberts, doubts remained about his conservative credentials, partly because he had not written many decisions on the appeals court in his brief time there. Leo recalls a White House meeting where Miers, then White House counsel, bluntly said of Roberts’ conservatism, “Prove it. I’m not sure I see it.” The case was made, and Bush nominated Roberts to replace O’Connor.
Then Rehnquist died, just before Roberts’ confirmation hearings were to begin. Roberts would not get to serve on the Court next to his mentor and the man who had hired him as a law clerk more than two decades before.
Faced suddenly with task of replacing Rehnquist, Bush no longer felt he had to start from scratch; he had his man right in front of him. Roberts had benefited from the summer of scrutiny, and with Hurricane Katrina devastating the Gulf Coast at the same time, Bush wanted to move fast. Naming Roberts to the Court’s center chair two days after Rehnquist’s death, Bush said that after getting to know Roberts, Americans “like what they see.”
The discipline broke down when Bush then had to find someone else to replace O’Connor. He was under pressure to nominate a woman, but for whatever reason, insiders say the vetted list contained few “home run” candidates who were female. So Bush looked elsewhere—not very far, it turns out—and went with Miers, his White House counsel. “I know the president felt she was a quality candidate,” Leo says. “In his own heart, he was not compromising.”
But in little over three weeks, she was gone—a victim of conservative outrage that she would be a moderate mistake worse than Souter, and with fewer credentials than Souter. Miers did not help her own cause. During a courtesy call, when Sen. Patrick Leahy (D-Vt.) asked her to name her favorite justice, she said “Warren.” Surprised, Leahy sought clarification; did she mean Earl Warren or Warren Burger? She gave the correct conservative answer—Warren Burger—but the exchange left Leahy doubting that she had any more than a passing knowledge of the institution she was seeking to join.
A COURT TRANSFORMED?
Even before Miers withdrew, it appears, Bush had settled on her replacement: Sam Alito. During earlier interviews, Bush had liked Alito more than Luttig, says Toobin in his book The Nine. And the line on Alito among White House lawyers was that in his 15 years on the 3rd Circuit—he’d been appointed by Bush’s father—Alito had never written a wrong opinion.
The dramatic chronology was crucial to the almost accidental success of Bush’s Supreme Court nominations. If the cards had been dealt in a different order, Roberts might not be chief justice at all. If Rehnquist had retired before 2005, as many expected, either of the more experienced 4th Circuit judges—J. Michael Luttig or J. Harvie Wilkinson III—probably would have been picked to replace him. And if Rehnquist had retired in 2005, as was widely expected, or passed away earlier, O’Connor would have stayed on at least one more term, to avoid a double vacancy. By then her husband John’s Alzheimer’s disease, the reason she wanted to leave, had deteriorated to the point where he could not be cared for at home; O’Connor might never have stepped down at all.
In short, Bush might have given life to a Luttig Court that included Justice O’Connor. Conservatives would have a lot less legacy to boast about.
But Roberts and Alito did make it to the Court. The first full term of the Roberts Court brought enough conservative victories that the story line of “a Court transformed” was set. The Roberts majority upheld the federal law banning “partial-birth” abortion, frowned on the use of race as a factor in public school class assignments, and told women that they were out of luck if they complained about pay disparity when they first realized it was happening—rather than years earlier, when their salaries were set.
The victories, however, came at a cost. Nerves were raw inside the Court, and reports circulated that Roberts was sometimes dismissive at conference. Justices Ruth Bader Ginsburg and Stephen Breyer read dissents from the bench—a rarity. Breyer, dispirited and exhausted by June, went off-script when he recited his dissent in the school race case. “It is not often in the law,” he said mournfully, “that so few have so quickly changed so much.” Roberts’ stated goal of greater unanimity did not get off to a great start.
Then came 2008. The Court seemed a happier place, and the numbers proved it: only 11 decisions were 5-4, compared to 23 the term before. Seemingly chastened by the rancor of the term before, the Court worked harder to bond. To be sure, the Court’s conservative course continued, most dramatically with a landmark victory for gun rights. Writing on a virtually clean slate, the Court in D.C. v. Heller said the Second Amendment protects an individual right to bear arms. But Scalia tempered the judgment—was he also trying to get along?—by acknowledging that some restrictions on the right were permissible.
But in a conservative paradise, the Court would not have expanded habeas rights for Guantánamo detainees as it did in Boumediene v. Bush, nor would it have declared yet another category of defendants—child rapists whose victims survive—immune from the death penalty, as it did in Kennedy v. Louisiana. The Court pleased the business community by slashing the punitive damages stemming from the Exxon Valdez oil spill in Exxon Shipping Co. v. Baker, but it was in the context of maritime law. Sidley’s Phillips says, “I still can’t count to five [votes] on any particular view of punitive damages.” Employment discrimination cases also went against employers, by and large. But recent precedents seemed to demand that the Court decide that way, says Phillips. “They tend to take precedent pretty seriously.”
THE KENNEDY FACTOR
These liberal detours were enough to give legitimacy to that contrarian Tulsa Law Review article, co-authored by Northwestern University political scientist Lee Epstein, who has spent her career charting Supreme Court trends. “It seems clear to us,” says Epstein, “that reports of the sea-change generated by O’Connor’s departure and the onset of the Roberts era are overwrought at best and mistaken at worst.”
Many scholars and practitioners continue to talk about a new Court that has lurched to the right—as conservative as it could be while Anthony Kennedy is still one of the nine. “President Bush and conservatives generally couldn’t possibly have hoped to achieve more with the Supreme Court,” says Akin Gump Strauss Hauer & Feld Supreme Court practitioner Thomas Goldstein. “If Bush had cloned Scalia twice, he still could not have moved the Court to the right of Kennedy,” adds Cornell Law School’s Michael Dorf, a former Kennedy clerk. Kennedy replaced O’Connor as the swing vote, and when he tacked to the left, so did the Court.
The occasional liberal ruling should not distract anyone from the reality of the Court’s transformation, says Kitty Kolbert, new president of People for the American Way. “We had a victory in the Guantánamo case,” says Kolbert. “But it was only 5-4, and that’s an abomination. Habeas is our most cherished right. It should have been 9-0.”
Other ominous trends might not turn up in a statistical head count, Kolbert adds. The Court’s discouragement of facial challenges to statutes in a range of recent cases, and its embrace of federal pre-emption for the benefit of business, she says, have the long-range effect of “slamming the courthouse door” on the public.
David Garrow, who watches the Court from the University of Cambridge, has no doubt that “the chief justiceship of John Roberts will, 10 or 25 years from now, certainly stand as the most successful legacy of Bush’s two terms as president.” Of course, who knows where Alito and Roberts will be on the ideological spectrum in 10 or 25 years? Epstein and other scholars have documented a drift to the left in most justices, especially after their first year of service. “If history is any guide, the Alito and Roberts of today will not be the Alito and Roberts of 2018,” says Epstein’s article.
But Cornell’s Dorf has done another study to counter the theory of leftward drift. Republican appointees with executive branch experience—like Scalia, Thomas, and now Roberts and Alito—tend to stay put and not drift, he says.
The cases that will test the Roberts Court on abortion, race, gay rights, and religious freedom are not yet on the horizon—although they are certain to appear before long. How they are framed—obeisant to precedent or staking out new ground—may make all the difference. If even Scalia feels compelled to list ways in which the right to bear arms can be regulated, then incrementalism may still be the Court’s style for years to come.
The mantra from liberals for the last four elections, at least, has been that the Supreme Court is “one vote away” from overturning cherished precedents like Roe v. Wade. After two dramatic appointments and eight long years of the Bush administration, Dorf notes that on issues such as race, abortion, and gay rights, “things have moved considerably. But we are still one vote away.”