The Nine

If this book, The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin (2008) were nothing more than what the subtitle asserts, I wouldn't bother recommending it. But, in telling the story of the Supreme Court from the Reagan years through the first couple of years of Roberts and Alito, it highlights how much is at stake in the election next week. It also highlights how much smarter "movement" Republicans are about the importance of the Supreme Court than are Democrats.

And, although I put the word in quotations, Toobin, who writes about the Supreme Court for The New Yorker, gives a glimpse into the history of the right wing movement and its process of taking control of the Republican party beginning with the Reagan years. (The process began earlier, but Toobin's book begins with the Court during the Reagan presidency.) As an example of this right wing awareness of the importance of the Supremes, before the Court intervened in the Florida certification process and handed the election to G. W., there was already an official committee at work to prepare a list of acceptable Supreme Court nominees for Bush to choose from...before there were any retirements or even hints of retirements. Eventually Roberts and Alito both came from that list.

The right wing were very smart during their years in the desert, as they planned for their eventual victory.  They knew the importance of controlling not just the Supreme Court but all of the layers of the judicial process. The Federalist Society, which now dominates right wing judicial thinking on the courts and in the universities was only formed as recently as the 1980s by Ed Meese, Robert Bork, Ted Olson and others. Now a Republican president would not dare nominate anyone for any court at any level who wasn't a member.

There is a right-wing concept of the Constitution in Exile, a term first used by Federal Appeals Court justice Douglas Ginsburg to define the period before FDR's New Deal. The belief is that the growth of the Federal Government is unconstitutional and needs to be rolled back to that earlier time. You may not remember (I jussssst barely did.) that Ginsburg was nominated by Reagan to replace Lewis Powell on the Supreme Court in 1987, and he would be on the court today (instead of Anthony Kennedy) if not for the fact that his regular marijuana use became public. This extreme Federalist belief, which would expand Executive power almost without limit, decimate all affirmative action programs, all civil rights programs, all distinctions between church and state, all court rulings based on the Commerce Clause, not to mention Roe v. Wade is gospel to the people who now control the Republican Party. (Douglas Ginsburg, by the way, is no relation to Ruth Bader Ginsburg.)

Toobin, and I suspect he is right, points out that there will not be any more surprises, like Earl Warren was to Eisenhower, Byron White was to Kennedy (or would have been if Kennedy were around to see him in action) and Souter was to Bush Sr. The focus that the movement conservatives have put on the records of Supreme Court nominees virtually ensures against it, because the left now finally gets it as well. Unfortunately, it almost surely guarantees that future nominees will all come from the appeals courts, and with a written record that can be examined before confirmation.  That's too bad.

Toobin's book suffers from the fact that it is based on interviews with Justices and clerks who cannot be identified, but the Supreme Court is the most secret of government institutions, and there isn't any other way to get around the fact that nobody is going to talk for attribution. It is easy enough to guess which Justices talked to him; at least we can know for a certainty that O'Connor did, and probably Breyer. Toobin's profiles of the various Justices are illuminating and insightful, and his writing style is very accessible. The book, despite what I have chosen to focus on above, is very balanced and is something of a page-turner.

My favortie gossipy story:  One summer, after the end of the session, David Souter was driving alone back to his home in New Hampshire and he stopped along the way to eat. A couple came up to him and the guy said "Aren't you on the Supreme Court?" He said, yes, he was. "You're Justice Breyer!" Not wanting to embarrass the guy, the shy, reclusive, just barely social Souter said, yes, he was Justice Breyer. The conversation continued for a while and the guy asked, "Justice Breyer, what is the best thing about being on the Supreme Court?" Souter grew pensive and eventually replied, "I'd have to say it is the honor of serving along side Justice David Souter."

One last thing. Many commentators were so foolish as to interpret Chief Justice Roberts' vote upholding the Affordable Care Act as a liberal position.  But remember, he did not find the ACA constitutional on the basis of the Commerce Clause, but on the basis of Congress's power to levy taxes.  Roberts is smart enough to know that he needs to move slowly with his agenda so as to "preserve the integrity of the institution." But he and the people who think like him abhor the Commerce Clause and that will yet come back to bite us in the ass. Roberts is not a liberal.