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Toobin's 'The Nine' Reveals Politics of High Court

Sep 14, 2007 (All Things Considered)

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New Yorker staff writer Jeffrey Toobin's The Nine is the latest, and by far the best, in a line of books this year about the Supreme Court.

There have been a number of attempts this year.

Supreme Conflict, by ABC's Jan Crawford Greenburg, contains a fair amount of good conservative gossip about the nomination of Chief Justice John Roberts and Justice Samuel Alito, but it lacks the balance, substance, and context of Toobin's book. Jeffrey Rosen's book about famous court personalities and rivalries is an interesting history packed into a professorial thesis. And a biography of Justice Clarence Thomas by the Washington Post's Kevin Merida and Michael Fletcher is a credible, but limited, look at the justice.

In addition, Thomas himself was paid a reported $1 million to write a book that is slated to come out this fall.

If you're interested in the Supreme Court as an institution and as a collection of personalities, though, Toobin's is the book to read.

The Plot

The plot is simple: the decades-long fight by a new and more extreme brand of conservative to take control of the Supreme Court. It is a fight that fails during the '80s and '90s and even in the early 21st century, despite the fact that Republican appointees far outnumbered Democratic appointees on the court.

The dénouement of the plot comes in 2005 when Justice Sandra Day O'Connor retires and Chief Justice William Rehnquist dies. Both would be replaced by appointees far more conservative — Roberts as chief justice and Alito as associate justice — men in the new conservative mold. Or, as Toobin puts it, "in the mold of the new Republican Party of George W. Bush."

Justice O'Connor's Alienation

The central thesis, or one might argue, the central disclosure of Toobin's book is his portrayal of Sandra Day O'Connor as increasingly alienated from the Republican Party she loved.

Ironically, Toobin tells us, if there was a contemporary politician O'Connor really admired, it was the governor of Texas, George W. Bush — a man whose theme of compassionate conservatism was much like O'Connor's, or so she thought.

Instead, says Toobin, O'Connor came to disdain the Bush presidency. It was a transformation that did not happen overnight, but with each step that President Bush took, whether to exert unilateral executive power in the war on terror, or on social issues like abortion, separation of church and state, affirmative action, and gay rights.

O'Connor was a healthy 75 years old in June of 2005, in the prime of her judicial influence and self-confidence, when her husband's Alzheimer's took a turn for the worse. She didn't want to leave the Court, but with the ailing Chief Justice Rehnquist telling her he was going to hang on, she felt she had no choice but to step down to avoid a double vacancy in the future. In a cruel twist of fate, Rehnquist died weeks afterward — and O'Connor's husband would not recognize her within a matter of months and would have to be institutionalized.

The Appointment of Samuel Alito

If O'Connor had any hope that her replacement would be a woman of substance or a justice of her general outlook, that hope was dashed with the appointment of Samuel Alito. The appointment, contends Toobin, was an anathema to O'Connor; it was Alito's lower-court opinion on the abortion question that O'Connor had repudiated in the strongest terms in 1992.

The Alito opinion approved a law that required women to prove they had notified their husbands before they could have an abortion. To O'Connor, Alito's view was "repugnant." Women, she said, "do not lose their constitutionally protected rights when they marry." His appointment as her successor infuriated her.

Most of this is not new to court aficionados, but the rich detail and well-written Toobin narrative is. So, too, are details of the Bush v. Gore case, into which Toobin weaves the personalities of the justices, the rage of conservatives at the actions of the Florida Supreme Court, and the despair of the four dissenters. Indeed, Justice David Souter is portrayed as so upset by the political nature of the final decision that he nearly resigned in protest.

In short, this is a good read, a digestible and often fascinating look at the court, its recent history, and what lies ahead.

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