David's Reviews > The Nine: Inside the Secret World of the Supreme Court

The Nine by Jeffrey Toobin
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Jun 20, 11

Read from January 27, 2010 to June 20, 2011

It’s certainly not outside of the realm of possibility that I am deluded. Completely and utterly deluded. Nevertheless, I have always held the American judiciary in much greater esteem than either the executive or legislative branches of government for several reasons—but most persuasive among them is my firm belief that the judiciary is the best situated to transcend workaday partisan politics.

Sure, judges are appointed by partisan politicians for partisan reasons. Therefore, they are functions of the vitriolic, electorate-responsive machinery known as American politics. (This is my concession that judiciary is more admirable than its peer branches in only a relative sense.) But once awarded their posts, however, they are no longer beholden to the partisanship which empowered them.

Let’s narrow our discussion of the judiciary to the United States Supreme Court for purposes of specificity—and to give proper credit to the extraordinary book dealing with that institution known as The Nine by Jeffrey Toobin.

David Souter provides an exceptional instance of the integrity which the judiciary branch does not demand, but enables. Souter was appointed to the Supreme Court by George H.W. Bush. According to Toobin, Bush was not particularly interested in the politics or strategy of such appointments. He simply wished to appoint an acceptable and competent justice to the Court—a Republican-leaning nominee, to be sure, but the rigor of his partisan stances was never tested. (This strikingly contrasts the younger Bush’s appointments of Roberts and Alito, which were, to differing degrees, a product of an informal vetting with Republican party’s social conservatives rather than the scrutiny of Congress. In this respect, the elder Bush deserves either credit for his integrity or blame for his political carelessness.)

Souter of course ended up being an extreme disappointment to conservatives. A sort of eccentric bachelor who despised the Washington political scene, Souter’s opinions on the Court were based on a consistent judicial philosophy that generally placed him in agreement with the Court’s liberals. Whether or not his judgments reflected his personal views on these issues, he provided a model for an ideal of jurisprudence in which the integrity of law and justice outweighs one’s personal stances. This isn’t to propose that Souter’s interpretation of Constitutional law is the ‘correct’ one—but only to suggest that he points toward an ideal of thoughtfulness and judicial conscience unencumbered by prejudice or personal willfulness. (Please note that I called this an ‘ideal’—and in this sense an objective never to be reached by Souter or anyone else. Alas, we are humans…)

An object lesson in lack of judicial integrity—at least in Toobin’s reckoning—might be provided by the most famous (and now retired) Supreme Court Justice Sandra Day O’Connor. O’Connor was the first female justice, appointed by Ronald Reagan, and as such she was the product of a very different brand of conservatism than holds sway today. Hers, more specifically, was a conservativism that did not yet despise intellectualism but was repelled by extremism (of politics and temperament). Wherever she is today, she is no doubt disgusted by the Tea Party movement, whose vulgarity and ignorance she would likely describe as ‘unattractive.’ (O’Connor transformed politics into aesthetics: moderation, decorum, and intelligence were attractive; their opposites were certainly not.) This concern for propriety and the political golden mean frequently drew the scorn of right wing of the Supreme Court—particularly Antonin Scalia who, in his opinions for the courts, showed little restraint in voicing his contempt for her unprincipled stances. She was scarcely bothered by these rhetorical attacks in any lasting way though because O’Connor, during most of her tenure, ruled the Court.

She was not the Chief Justice, but she was dead-center. Her opinion was often the deciding one in many hot-button cases—because, while she was a political conservative, this conservativism did not extend to all social issues. In other words, she—unlike, say, Scalia or Ginsburg—was persuadable. She also served as a barometer for public opinion in most cases. Whether she followed public opinion or was merely the product of it, she privately relished her position as the voice of the people. As previously noted, she found extremism of either stripe distasteful and undesirable. As a consequence, she found herself the moderate tie-breaker of the Court—a power which she also enjoyed and knowingly wielded.

Like Souter, therefore, O’Connor was often a disappointment to the Republican party. Over time, the Republican party had evolved (or devolved, as she would have likely put it), but her centrist views remained largely unchanged—or they changed only to the extent that the public’s did (which is to say, very slowly).

Many will credit O’Connor for representing popular opinions and values on the Court, but then again, her detractors might note, the Court wasn’t intended as representative body. It was the Court’s expressed purpose to check the powers of the elected officials and to keep their legislation in line with the Constitution, regardless of public sentiment. Thus, seeming to lack a coherent judicial philosophy and following a course of personal (and aesthetic) moderation, rationalized into legal principle, O’Connor lacked integrity and coherence as a Supreme Court Justice. Her part in the Bush-Gore election case, for example, was egregiously unprincipled, and Toobin covers this case in all its disgraceful detail in The Nine.

I don’t believe I’ve ever given a non-philosophical non-fiction book five stars. This is a first. Toobin’s book is the perfect integration of fluid, well-paced writing, personal insight, and a wealth of fascinating factual detail. Right-leaning readers will no doubt find this book biased, chiefly because of its scolding of the Court’s odious involvement in the Bush-Gore case, but his condemnation appears well-argued and reasonable (to these admittedly liberal eyes anyway). At any rate, his discussion certainly furthers the discussion of the role of the Supreme Court in our lives today.

Even after reading this book, I still believe that the judiciary is (by a long shot) the branch of government with the most integrity. And I am aware of how problematic this belief is, too. To suggest that an appointed rather than elected branch is superior in such an essential way makes me sound undemocratic, to be sure—but more alarmingly it doesn’t seem to bode well for the state of representative government today. This awareness makes me very uneasy, but I can’t quite shake the truth of it.
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Comments (showing 1-23 of 23) (23 new)

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message 1: by Jen (new)

Jen I want to know who makes her collars.


message 2: by Jen (new)

Jen Because he's got plenty.


message 3: by David (last edited Jan 27, 2010 05:20PM) (new) - rated it 5 stars

David If you could see me, you'd know I have my serious face on now. Nobody better be disrespectin' Ruth, 'cuz that's where I go mental. (Mental-er than usual.)

Don't be no hatah!
It's Ruth Badah!
(Ginsburg, y'all.)

But you're free to talk about this one's genitalia in any manner you see fit.


Oh. And these two can definitely go to hell too...


(Did you see that? Black men who like NASCAR. Now that's a wafer-thin demographic.)

And of course... here's John Roberts with Carol Channing.

Should her wrist bend like that?




Pinky David wrote: "Should her wrist bend like that?"

Roberts is bending it with his mind powers. (Her brittle bones so much easier than even the cheapest spoon...)


message 5: by Shelly (new)

Shelly My Legal Research professor was trying to tell us (w/o just saying it flat out) that Scalia is a dick. She said she's heard lots of good things about other members, but not Scalia. Specifically she mentioned how she's heard from so many people what a nice guy C. Thomas is. I was like "?!" All I could think about was a coke can and pubic hair. Real nice.


message 6: by Michelle (new)

Michelle Fantastic review, D. It made me want to read a book I wouldn't normally read.


message 7: by Manny (last edited Jun 20, 2011 07:32AM) (new)

Manny Hey, I'd forgotten that you could do serious as well! What a great review.


message 8: by AC (new) - rated it 5 stars

AC Wonderful review - of a wonderful book. But if you want to give those nice lingering illusions of yours their coup de grace, here it is:
http://www.goodreads.com/book/show/11...

That said, Toobin's defense of SDO'C did not sit well with me at all. In the final analysis, whatever her role during her tenure, I cannot forgive her for retiring when she did. She pretended that the Republican Party of her youth was the Republican Party of her maturity, and only thus could she justify keeping her "seat" in Republican hands. That is in error in judgement and an instance of bad faith which is inexcusable. Moral blindness is not a tolerable weakness in a retiring SCJ.


message 9: by David (last edited Jun 20, 2011 12:46PM) (new) - rated it 5 stars

David Thanks, everyone.

AC, I've thought about reading that book, but I'm not sure if I can stomach any more about the Court's involvement in the election. I like to maintain some (fragile) illusions.

--- Okay, the part below is in response to Benji Harrison's post that he deleted. ---

Benji, it's not a matter of liking or disliking O'Connor, who I am sure was a fine person. But I don't think a SCJ should attempt to channel the voice of the electorate. The Court is often dealing with preserving rights that might not always be popular with the majority, so I don't think O'Connor's finger-in-the-air method (to see which way the wind is blowing) is necessarily appropriate for a justice. That's what the elected representatives do. The justices should only be concerned with constitutionality. Admittedly, they have different ways of interpreting constitutionality, but there should be a coherent and consistent judicial philosophy (in my opinion) governing her votes rather than an 'common sense' opinion which she seeks to rationalize after the fact.


message 10: by D. (new)

D. Pow David! In da Good Reads house!

http://www.youtube.com/watch?v=mEszTz...


message 11: by AC (new) - rated it 5 stars

AC David wrote: "AC, I've thought about reading that book, but I'm not sure if I can stomach any more about the Court's involvement in the election. I like to maintain some (fragile) illusions...."

I'm reminded of the famous story about Tolstoy and Turgenev at the hanging...


message 12: by trivialchemy (new)

trivialchemy give the masses more more more


message 13: by Esteban (new)

Esteban del Mal David wrote: "so I don't think O'Connor's finger-in-the-air method (to see which way the wind is blowing) is necessarily appropriate for a justice. That's what the elected representatives do. The justices should only be concerned with constitutionality. Admittedly, they have different ways of interpreting constitutionality"

I wonder what Toobin would make of all this Clarence Thomas stuff going on right now.


David D-Pow and Isaiah! Two blasts from the Goodreads past (i.e., the halcyon days of yore)!

Good to hear from you guys.

D-Pow, are you still jacking off while you read about elf-kings riding winged purple unicorns into the City of Atlantis?

Isaiah, I heard-tell that you're going to be a NASA test pilot or something...? Is this true or a scurrilous rumor? Does that mean you're no longer living close to 'Ginnie Jones'?


message 15: by David (last edited Jun 24, 2011 06:16AM) (new) - rated it 5 stars

David Esteban wrote: "David wrote: "so I don't think O'Connor's finger-in-the-air method (to see which way the wind is blowing) is necessarily appropriate for a justice. That's what the elected representatives do. The j..."

Actually... Toobin already covers an ethical 'issue' (RE: Thomas) in the book, so this isn't the first time the Ol' Pubemeister stretched the concept of judiciary ethics like Silly Putty. He was also buddy-buddying around with Cheney on a hunting trip around the same time Cheney was a defendent in a case before the Supreme Court. Is it impeachable? Probably not. But Thomas certainly does not aspire to an ethical scupulousness one might hope for in a Supreme Court Justice, and he makes no apologies for it.

Interestingly enough, Thomas is generally known as being the warmest and friendliest of all the justices. Most people (even his enemies and dectractors) like him on a personal, if not ideological level. I myself couldn't give two shits whether he learns the first names of all the employees at the Court. I'd prefer a cold, temperamentally unpleasant justice to one who is a right wing extremist with little concern for civil liberties.


message 16: by Esteban (new)

Esteban del Mal A NASA test pilot?

I coulda been onea those, but, uh, you know, bum knee. (And a child-like fear of flying; did I just type that out loud? I hope people aren't judging me. They probably are. Especially David.)

Supremes can be impeached? Didn't know that. In any event, I hope Thomas recuses himself when his wife's case comes before the court for high crimes against fashion:

Photobucket


message 17: by Jen (last edited Jun 24, 2011 10:04AM) (new)

Jen But Esteban, her logos are matching.

And David, talking about NASA and Isaiah in the same sentence isn't unbelievable or anything, he's more than ridiculously smart, it is just that now that I know about the whole astronaut diaper issue my imagination is ruined.


message 18: by Jen (new)

Jen I preferred the good old days, where movies like The Right Stuff portrayed astronauts peeing in their suits like kayakers in wet suits on weekend excursions.


message 19: by trivialchemy (new)

trivialchemy You guys are deeply confused. I quit the job at NASA I held for several years when I finally got accepted into the Air Force pilot program. I'm now at a NATO base awaiting training to start. Anything beyond that would be irresponsible conjecture.

As for the supreme court, my favorite justice was always Judge Dredd. I thought he displayed an appropriate amount of authoritarianism while not necessarily confining himself to black-and-white interpretations of legal or constitutional authority. Plus he didn't have the weird memory thing that Robocop had going.


message 20: by Jen (new)

Jen So, just to be clear, if you were an astronaut, you'd also wear an adult diaper.


message 21: by David (last edited Jun 25, 2011 08:13PM) (new) - rated it 5 stars

David Bird Brian wrote: "This is a great review, David. Does anybody happen to know how Souter ruled in Gore v. Bush? One hopes he wasn't swayed by any lingering feelings of indebtedness to the Bush family for appointing ..."

Firstly, Souter was one of the justices who didn't think the Court should hear the Gore v. Bush case; he believed (and I agree with him) that the states have a right to determine their voting standards and procedures to the extent that it doesn't violate the Constitution's Equal Protection Clause. But in his decision in the case, he said the recounts should continue (according to the Florida court's ruling) but that the Florida courts needed to establish a standard. (So he decided in Gore's favor, with a caveat.)

Also of note regarding Souter and this case: He was greatly disturbed by the Court's granting cert to the case and almost resigned from the Court as a result.


David Isaiah: Air Force pilot, NASA test pilot -- same diff, right? Anyway, that's impressive. And something I would never do in a million years. But I am glad there are people who want to do it, so I don't have to.

Ideal Supreme Court? Judge Dredd, Judge Reinhold, Judge Wapner, Mike Judge...


David Also: I can't believe I misspelled 'defendant' way up there. I am utterly humiliated.


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