The Nine: Inside the Secret World of the Supreme Court (J. Toobin)

I waited for the paperback edition of this book to come out, and I did well. This is a book best read with a bit of distance to the events described.

A history of the Supreme Court of the United States of America in recent times. Once an institution of minor rank, over the 20th century the Supreme Court transformed itself into a powerhouse of societal transformation, pushing the nation forward towards equality and the rule of law. Never mind that most of the justices were appointed by conservatives: they ended up veering sharply to the liberal side once appointed.

Unfortunately, though, the Supreme Court is still a deeply political institution. Its composition is determined by presidents who increasingly cannot choose based on legal merits but have to select someone who, first of all, will espouse a political opinion, and only secondarily is able to justify it in legal and rational terms.

This is the world J. Toobin describes, the court as it has been run for the past 20 years, the longest period without changes in the history of the United States. We are introduced to the justices, one by one. We learn about their quirk, their challenges, their judicial opinion. We learn about the inner workings of the court, about the selection process of interns, about dinner parties and the calendar of events.

Oddly, while all of it is quite interesting, the part that stands out most is certainly the one dealing with recent events, since 2000. The Supreme Court has done itself no favor, after the presidential election of that year, when it single-handedly decided to make George W. Bush president in an act of political activism.

The justices could have chosen any of many possible ways to have their way: they could have sent the decision back to the Florida legislature, who was in trusted Republican hands; they could have issued a ruling on fundamentals of the case. Instead, they opted for the most embarrassing option: they wrote that their decision applied only to the circumstances in the case at hand and were not to be used as precedent. Essentially, they said that they wanted George W. Bush so badly as the next president, they didn’t really care if they embarrassed themselves.

On matters of style and writing, I enjoyed this book quite a lot. Mr. Toobin’s pace is outstanding and adds to the pleasure of reading about a topic that is, by its nature, relevant to all. The tidbits of personal life about the justices were quite cunningly interspersed with the more professional narrative. All in all, an amazing read.

Mr. Toobin chooses an unlikely heroine, though, in Sandra Day O’Connor. He says that, since she was the swing vote in a great many crucial cases, the court ended up being hers most of the time. Since you had to go to her to get your way, her legal reasoning carried the day many, many times over.

Sandra Day O’Connor, though, seems to have carried the day only in a very short-sighted way. Sure, her reasoning won out many times, especially in abortion cases. But that reasoning was usually as weak as the one applied to the case of Bush vs. Gore.

In cases like Brown vs. Board of Education, the landmark case ending school segregation, or Miranda, on the rights of suspects in criminal proceedings, the principle of law was clear, although its application controversial. In Roe vs. Wade, on the other hand, and on the evolution of cases after that, her way of reasoning was going to cause traumatic reactions in the conservative world.

In the end, Sandra Day O’Connor not only brought about the collapse of the judicial decisions she so cared about, she created the monster of judicial activism the conservative revolution has been railing against: now, to be a Supreme Court Justice, one has to be a reliable vote in political matters. One has to abhor abortion, one has to limit civil rights, one has to expand executive powers.