Nickdfresh
09-24-2007, 06:14 PM
Book review: The Nine
By Michiko Kakutani
Monday, September 24, 2007
The Nine:
Inside the Secret World of the Supreme Court
By Jeffrey Toobin
Illustrated. 369 pages. $27.95. Doubleday.
With President George W. Bush's addition of John Roberts Jr. and Samuel Alito Jr. to the Supreme Court, the balance of power in the highest court in the land has shifted decisively to the right. In fact, Jeffrey Toobin observes in his compelling new book, conservatives are now within one vote of "total control" of the court and advancing their agenda: "Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere."
Already with Sandra Day O'Connor's retirement and Anthony M. Kennedy's new role as the crucial swing vote, a third of the cases in 2006 and 2007 were decided by votes of 5 to 4 — a level of division, Toobin writes, "unprecedented in the court's recent history." And as conservative change has accelerated, he adds, the rulings of the majority in several cases involving abortion, campaign finance and church-state relations have "directly contradicted court precedents," though Chief Justice Roberts and his colleagues "did not come out and say that the old cases had been overturned."
Given all these changes, the Supremes command more attention than ever, and Toobin's new book "The Nine" not only provides a vivid narrative history of the court's recent history but also gives the reader an intimate look at individual justices, showing how personality, judicial philosophy and personal alliances can inform decisions that have huge consequences for the entire country. Toobin examines how a conservative rebellion against the legacy of the Warren Court gathered momentum in recent decades, nurtured by Federalist Society activists, evangelical lobbyists and most recently the Bush White House. He reviews President Bush's selection of Chief Justice Roberts and Justice Alito, explicating their views on everything from the right to privacy to the role of precedent. And he shows how the thinking of individual justices has reflected — or, in some cases, repudiated — sentiments abroad in the nation at large.
Toobin — a former assistant United States attorney who is now a staff writer at The New Yorker and senior legal analyst at CNN — uses his familiarity with the law not to deliver a partisan brief (as he did with "A Vast Conspiracy," his ham-handed 2000 book on the Clinton scandals) but to illuminate the dynamics of the Supreme Court and to situate key decisions made by the court within a political, social and historical context.
Driven by the author's assured narrative voice, "The Nine" is as informative as it is fascinating, as insightful as it is readable. It is an altogether crisper, livelier performance than Jan Crawford Greenburg's book on the court ("Supreme Conflict"), which appeared this year, and it gives the reader a far more tangible sense of the court's day-to-day workings as well as a sharper understanding of issues, like executive power, which are at stake in pending cases.
Although the reader may not agree with all of Toobin's opinions, his arguments, like any good lawyer's, are shrewdly reasoned and grounded in lots of persuasive citations. He writes that despite the uproar over the doomed nomination of Harriet Miers, President Bush's friend and counsel, her qualifications (or lack of qualifications) "were hardly unusual" in the broader sweep of history, noting that "Lewis Powell had never worked in government," and Byron White's brief stint as a deputy attorney general followed "an unremarkable career as a private lawyer in Denver."
He asserts that the outcome of presidential elections is the only factor that "will determine the future of the Supreme Court," that the days when justices surprised the presidents who appointed them are over. "The last two purported surprises, Souter and Kennedy," he writes, "were anything but" and all the subsequently appointed justices — Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Chief Justice Roberts and Justice Alito — "have turned out precisely as might have been expected."
Most emphatically Toobin contends that the court's intervention in the momentous Bush v. Gore case which decided the 2000 election "made the justices look like another set of partisans." He writes that "the tragedy of the court's performance in the election of 2000 was not that it led to Bush's victory but the inept and unsavory manner with which the justices exercised their power." Toobin concludes that they "displayed all of their worst traits — among them vanity, overconfidence, impatience, arrogance and simple political partisanship."
For that matter, Toobin reveals in this book just how much personality shapes interactions on the court and sometimes determines the direction of debate. It's well known, of course, that Chief Justice William H. Rehnquist and Justice O'Connor shared a long friendship that predated their arrival on the court, but Toobin also reveals that she formed a close bond with Justice Breyer, with whom she shared a practical, pragmatic outlook. He tells us that David Souter's "gentle charm" probably made him "the best liked of the justices among his peers." He tells us that Justice Kennedy's travels abroad and his interest in international law pushed him to the left over the years. And he tells us that Justice Scalia never learned to translate his moxie into real influence on the court, while Justice Breyer, who'd "watched his former boss Ted Kennedy push legislation through the Senate" by building coalitions, knew how to work "his colleagues — decorously, respectfully but unmistakably — to try to get them to see things his way."
In the case of both Justices Kennedy and O'Connor, Toobin says, the legacy of Bush v. Gore and later the Bush administration itself contributed to a growing alliance with their more liberal colleagues. The story of Justice O'Connor, who helped tip the Bush v. Gore case in favor of President Bush and whose 2005 decision to retire (to spend more time with her ailing husband) would give the president a crucial seat to fill, is in many ways Shakespearean.. Toobin writes that "the hiring of John Ashcroft, the politicized response to the affirmative action case, the lawless approach to the war on terror, and the accelerating disaster of the war in Iraq all appalled O'Connor." He says she regarded the Terry Schiavo case as "the latest outrage from the extremists who she believed had hijacked her beloved Republican Party" and adds that she was deeply distressed over the administration's efforts to undermine judicial independence.
In the end, Toobin concludes, that when it comes to incendiary political issues, "the identity of the justices" on the court matters more than the quality of the arguments: "There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy — ideology — and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideologies that will shape the court and thus the nation."
Link (http://www.iht.com/articles/2007/09/24/arts/25book.php)
By Michiko Kakutani
Monday, September 24, 2007
The Nine:
Inside the Secret World of the Supreme Court
By Jeffrey Toobin
Illustrated. 369 pages. $27.95. Doubleday.
With President George W. Bush's addition of John Roberts Jr. and Samuel Alito Jr. to the Supreme Court, the balance of power in the highest court in the land has shifted decisively to the right. In fact, Jeffrey Toobin observes in his compelling new book, conservatives are now within one vote of "total control" of the court and advancing their agenda: "Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere."
Already with Sandra Day O'Connor's retirement and Anthony M. Kennedy's new role as the crucial swing vote, a third of the cases in 2006 and 2007 were decided by votes of 5 to 4 — a level of division, Toobin writes, "unprecedented in the court's recent history." And as conservative change has accelerated, he adds, the rulings of the majority in several cases involving abortion, campaign finance and church-state relations have "directly contradicted court precedents," though Chief Justice Roberts and his colleagues "did not come out and say that the old cases had been overturned."
Given all these changes, the Supremes command more attention than ever, and Toobin's new book "The Nine" not only provides a vivid narrative history of the court's recent history but also gives the reader an intimate look at individual justices, showing how personality, judicial philosophy and personal alliances can inform decisions that have huge consequences for the entire country. Toobin examines how a conservative rebellion against the legacy of the Warren Court gathered momentum in recent decades, nurtured by Federalist Society activists, evangelical lobbyists and most recently the Bush White House. He reviews President Bush's selection of Chief Justice Roberts and Justice Alito, explicating their views on everything from the right to privacy to the role of precedent. And he shows how the thinking of individual justices has reflected — or, in some cases, repudiated — sentiments abroad in the nation at large.
Toobin — a former assistant United States attorney who is now a staff writer at The New Yorker and senior legal analyst at CNN — uses his familiarity with the law not to deliver a partisan brief (as he did with "A Vast Conspiracy," his ham-handed 2000 book on the Clinton scandals) but to illuminate the dynamics of the Supreme Court and to situate key decisions made by the court within a political, social and historical context.
Driven by the author's assured narrative voice, "The Nine" is as informative as it is fascinating, as insightful as it is readable. It is an altogether crisper, livelier performance than Jan Crawford Greenburg's book on the court ("Supreme Conflict"), which appeared this year, and it gives the reader a far more tangible sense of the court's day-to-day workings as well as a sharper understanding of issues, like executive power, which are at stake in pending cases.
Although the reader may not agree with all of Toobin's opinions, his arguments, like any good lawyer's, are shrewdly reasoned and grounded in lots of persuasive citations. He writes that despite the uproar over the doomed nomination of Harriet Miers, President Bush's friend and counsel, her qualifications (or lack of qualifications) "were hardly unusual" in the broader sweep of history, noting that "Lewis Powell had never worked in government," and Byron White's brief stint as a deputy attorney general followed "an unremarkable career as a private lawyer in Denver."
He asserts that the outcome of presidential elections is the only factor that "will determine the future of the Supreme Court," that the days when justices surprised the presidents who appointed them are over. "The last two purported surprises, Souter and Kennedy," he writes, "were anything but" and all the subsequently appointed justices — Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Chief Justice Roberts and Justice Alito — "have turned out precisely as might have been expected."
Most emphatically Toobin contends that the court's intervention in the momentous Bush v. Gore case which decided the 2000 election "made the justices look like another set of partisans." He writes that "the tragedy of the court's performance in the election of 2000 was not that it led to Bush's victory but the inept and unsavory manner with which the justices exercised their power." Toobin concludes that they "displayed all of their worst traits — among them vanity, overconfidence, impatience, arrogance and simple political partisanship."
For that matter, Toobin reveals in this book just how much personality shapes interactions on the court and sometimes determines the direction of debate. It's well known, of course, that Chief Justice William H. Rehnquist and Justice O'Connor shared a long friendship that predated their arrival on the court, but Toobin also reveals that she formed a close bond with Justice Breyer, with whom she shared a practical, pragmatic outlook. He tells us that David Souter's "gentle charm" probably made him "the best liked of the justices among his peers." He tells us that Justice Kennedy's travels abroad and his interest in international law pushed him to the left over the years. And he tells us that Justice Scalia never learned to translate his moxie into real influence on the court, while Justice Breyer, who'd "watched his former boss Ted Kennedy push legislation through the Senate" by building coalitions, knew how to work "his colleagues — decorously, respectfully but unmistakably — to try to get them to see things his way."
In the case of both Justices Kennedy and O'Connor, Toobin says, the legacy of Bush v. Gore and later the Bush administration itself contributed to a growing alliance with their more liberal colleagues. The story of Justice O'Connor, who helped tip the Bush v. Gore case in favor of President Bush and whose 2005 decision to retire (to spend more time with her ailing husband) would give the president a crucial seat to fill, is in many ways Shakespearean.. Toobin writes that "the hiring of John Ashcroft, the politicized response to the affirmative action case, the lawless approach to the war on terror, and the accelerating disaster of the war in Iraq all appalled O'Connor." He says she regarded the Terry Schiavo case as "the latest outrage from the extremists who she believed had hijacked her beloved Republican Party" and adds that she was deeply distressed over the administration's efforts to undermine judicial independence.
In the end, Toobin concludes, that when it comes to incendiary political issues, "the identity of the justices" on the court matters more than the quality of the arguments: "There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy — ideology — and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideologies that will shape the court and thus the nation."
Link (http://www.iht.com/articles/2007/09/24/arts/25book.php)