"The Nine"

Jeffrey Toobin's new book peeks inside the sheltered world of the Supreme Court justices. Are the unpredictable personal dynamics among the justices more important than the agenda they brought with them?

By Garrett Epps

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Sept. 13, 2007 | Last July, Chief Justice John Roberts -- one of four votes on the "conservative" wing of our closely divided Supreme Court -- was rushed to the hospital following a seizure. At a human level, the news was gripping: a young man, the father of small children, forcefully reminded of his mortality.

But Roberts' private trauma has much wider implications for the country, which we can only dimly foresee. A uniquely powerful, uniquely American institution made up of unelected lawyers, the Supreme Court is dependent on the unpredictable fortunes of the nine ordinary mortals who make it up.

"The Nine," the latest book from the indefatigable New Yorker legal correspondent Jeffrey Toobin, provides fascinating glimpses into the humanity of these mortals. But in the end, Toobin falls prey to the temptation to reduce them to "conservative" or "liberal" votes. That temptation is widespread in media coverage of the court, and often obscures the real process of change that takes place inside its closed chambers.

Sheltered by life tenure, and surrounded by deference and flattery, the justices live in an airless bubble even harder to penetrate than the one surrounding stubborn presidents. Events outside can seem distorted or far away; developments inside -- many invisible to the larger public -- can take on outsize importance. Each justice influences the others in ways that are hard even for those involved to understand. One may be alienated by his nominal allies; another may find himself unexpectedly beguiled by the "enemy." Justices sometimes migrate permanently (Harry Blackmun was a rock-ribbed conservative when named to the court) or move back and forth depending on events inside and outside the court (as Justice Anthony Kennedy sometimes seemed to do on the Rehnquist Court between his appointment in 1987 and the chief justice's death in 2005). The result is an institution that has often defied the predictions of seasoned analysts and observers. Present appearances to the contrary, it may do so again.

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A generation ago, the financial writer Burton Malkiel suggested that the motions of the stock market, though in broad outline reflective of economic trends, were random and unpredictable from day to day. A similar case, it seems to me, can be made for the Supreme Court. Courts move in broad directions as a result of the political leanings of new justices; but in individual cases they can be quirky and unpredictable.

Being one of the nine is different from being an advocate on the outside, or even from being one of the nearly 180 appellate judges on the federal courts. A justice's vote can shift history, and that responsibility can change the way he or she looks at issues. "When you put on the black robe, the experience is sobering," Justice Lewis F. Powell once said. "It makes you more thoughtful." The justices, in fact, may sometimes take their own importance a bit too seriously. Toobin quotes the more histrionic Justice Kennedy, moments before going into court to announce a key ruling, as saying to a reporter, "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line."

Kennedy occupies the swing-vote position on this court that Powell occupied during the '70s and '80s. Summarizing the 2006-07 term, Toobin writes, "No justice in history had had a term like his; in the twenty-four cases decided by votes of five-to-four, Kennedy was in the majority in every single one." The justice in the center can have an outsize influence -- and not just when the votes are counted. Other justices know they must win the swing vote, and they often tailor their constitutional arguments in an attempt to read his or her mind. But of course the reverse is also true -- the justice who seeks the center will very often find him- or herself moving right or left according to the pull of the opposing wings.

The story of the court's swing votes -- from Powell in the '80s to Sandra Day O'Connor until her retirement in 2005 to Kennedy today -- maps a fairly steady pilgrimage to the right. But that pilgrimage has included detours that defied nose-counting projections. The Rehnquist Court refused to overturn Roe v. Wade or Miranda v. Arizona, pulled away from rigid limits on federal power, and even reaffirmed a limited role for racial preferences in higher education -- all disappointments to the conservative presidents who nominated six of the current nine. It also extended the right of privacy to cover the choice of consenting adults to have sex -- gay or straight -- in their own homes.

To Toobin, these detours, not the overall conservative trend, truly define the meaning of the Rehnquist Court. After Bush v. Gore, he argues, the court set off "in its most liberal direction in years." But he warns that those days are over. The appointments of Roberts and Samuel Alito, he says, mark the ascendancy of the "movement conservatives," prepared to use their power of judicial review to block political initiatives to protect civil rights, free speech and the environment. Long frustrated by the unpredictability of Republican appointees like O'Connor and David Souter, Toobin says, the members of the legal hard right "are very close to total control."

"The Nine" generates its story arc by overemphasizing the liberal detour after 2000 to set up a coming violent swing to the right. It covers much of the same ground as "Supreme Conflict" by ABC News correspondent Jan Crawford Greenberg. Greenberg got deeper inside the court's bubble, with background interviews with nine justices and extensive on-the-record comment from Justice O'Connor. Toobin is a tireless reporter, but his beat at the New Yorker is much wider than the Supreme Court, and he is at his best covering volatile stories like the O.J. Simpson case or the Florida recount. He has a less sure feel than Greenberg for the constitutional issues that dominate the Supreme Court's agenda.

Within these limits, though, "The Nine" is entertaining and illuminating. Toobin draws a vivid and irreverent picture of the justices; it's best summarized in his estimation of seven justices' performance in Bush v. Gore. In his account, Chief Justice Rehnquist is slapdash and result-oriented; O'Connor, image-conscious; Kennedy, bloviated and incoherent; Antonin Scalia a self-righteous bully; Clarence Thomas, withdrawn and rigid. The two Clinton appointees, Ruth Bader Ginsburg and Stephen Breyer, are portrayed as timid and flabby. Only Justice John Paul Stevens emerges as an admirable jurist, though any personal picture of Stevens is largely absent from "The Nine." By contrast, Toobin draws a moving portrait of David Souter, whose faith in moderate-conservative judging was nearly shattered by the haste and fatuousness of the court's interference in the election. "There were times when David Souter thought of Bush v. Gore and wept," he writes.

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