About nine months ago, my seat buddy in Constitutional Law asked me, "Have you read The Nine?" A few months later, at my 10th high school reunion, a recent J.D. recipient and classmate asked the same question. I said no, but I joked vociferously with him about the Supreme Court. He said the book showed that the justices just liked to squabble all the time. It made it seem funny.
Turning into a nerd, I started joking all too often about the Supreme Court. Truly, the justices were the greatest political celebrities in America. They may be the greatest celebrities of all, though I am sure Snooki commands a greater majority of the public consciousness than Stephen Breyer. Over this winter break, my nerdiness reached its absolute. Recognizing that my family had 9 members, I decided it would be appropriate to institute a family court. All decisions that affected all members of the family significantly would have to be voted on, with a majority opinion written which would then contain "holdings" for future decisions. My hope is that the practice would be handed down from generation to generation. Whenever a family member died, rules were in place to appoint replacements. However, all opinions would be "advisory," which Supreme Court opinions never are. This caused considerable confusion, but it was fun to attach a justice to each member of our family:
Dad - John Roberts (Dad was offered the position of Chief Justice, but gave it to Mom. They look alike and are conservative - though Dad would never admit as much, having supported Obama - and both have a son named Jack.)
Mom - Ruth Bader Ginsburg (Their political ideologies are almost perfectly aligned.)
Brooke - Sonia Sotomayor (Liberal, and with a middle name of "Vanessa" the most vaguely Hispanic - though I am not sure Vanessa has any Hispanic implications whatsoever.)
Marc - Stephen Breyer (Only because he looks 10 years younger than he is.)
Lindsay - Samuel Alito (There is no good reason for this - except that his seat was Sandra Day O'Connor's, and they wanted a woman to replace her, but they got him instead.)
Me - Antonin Scalia (We are at opposite ends of the political spectrum - but we are both also incredibly angry, enjoy grandstanding, and have a flair for incendiary prose.)
Michael - Anthony Kennedy (He is unpredictable, the "swing justice," the most powerful man in America.)
Emma - Clarence Thomas (She is the most black, and extremely conservative.)
I bought The Nine for Michael as a Christmas present. Before Christmas, I did my best to get through as much of it as possible. Whatever ringing endorsements there may be for it are all true. This book is essential reading for all law students, and for anyone else interested in what is probably the most important branch of government.
The focus of the book is on the nine justices that served together for the longest period in American history, 1994 - 2005: Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer. The area addressed is (almost) exclusively Constitutional Law. Any 1Ls (or 2Ls at certain schools, I am told) that have not taken this course will be well-served to read it. I got a B in Con Law last year. I've written enough about my failure to address the Commerce Clause, but this book serves as an effective "nutshell" for a very high percentage of cases that will be covered in that course (had I read it, I might have gotten an A-, given my professor's then-seemingly peculiar method of placing the justices on a line from left to right). Those cases are:
-Roe v. Wade (+ Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart)
-Grutter/Gratz v. Bollinger (+Adarand v. Pena, Bakke v. Regents of University of California, and the Louisville/Seattle school district cases that close out the text.)
-Bush v. Gore (+ Clinton v. Jones)
-United States v. Lopez (+United States v. Morrison and Gonzales v. Raich)
-Hamdi v. Rumsfeld (+Rasul v. Bush, Hamdan v. Rumsfeld, and Boumedienne v. Bush)
-Kelo v. City of New London
-Lawrence v. Texas (+Bowers v. Hardwick)
-District of Columbia v. Heller (in the Afterword)
There are many others I am forgetting. But aside from being an entertaining primer and supplement to the sometimes inscrutable language of their opinions, the book is above all, a great mini-biography of all the justices.
John Paul Stevens probably comes across as the most admirable. He was still serving at 89 (90?), and stayed on the Court nearly as long as anyone in history. More importantly he was from Chicago and went to Northwestern Law rather than Yale or Harvard. His vote was not always that predictable, but in later years he moved to the left. He always applied a certain degree of common sense in his decisions that is a breath of fresh air, considering the underlying theme of this book: the conservative movement to control the Court.
It's extremely disturbing to read about hardcore Federalists and Evangelicals. However, Toobin notes near the very end that, "They organized more, mobilized more, and cared more about the Court than their liberal counterparts. And when their candidate won the presidency, these conservatives demanded more--a pair of justices who were precisely to their liking [Roberts and Alito] (and the ejection of one nominee, Harriet Miers, who was not). With admirable candor, and even greater passion, conservatives have invested in the Court to advance their goals for the country." (393) It seems clear that Toobin favors liberals, but he does not seem to criticize conservatives unfairly. However, I do not want this review to dissolve into a discussion of partisan politics. The Nine will provide a heavy education if you are seeking that. Needless to say, I consider the squabbles between liberals and conservatives over affirmative action and abortion and gay rights extraordinarily annoying, and heavily favor O'Connor's view of judicial independence. Anyone that votes along partisan lines without considering the issue from their own independent point of view as an individual deeply steeped in the practice of law is abusing the system. Judges are not supposed to be partisan. But they are. This is the ultimate take-away from the book.
Sandra Day O'Connor was the most powerful woman in America during her time on the Court. She was quite conservative, and her move to the center, and then the left, makes for a fascinating read. She was the original "swing justice" and controlled the Court. Toobin takes pains to point out that O'Connor, better than any other justice (with perhaps Stevens in 2nd), tried to vote on every decision as she thought the American popular consciousness would vote. And most of the time she got it right. Except in Bush v. Gore.
Bush v. Gore merits special mention because it was sort of glossed over in my Con Law class, but is described in such minute detail in The Nine that it takes up its own special section of the book (Part Two of Four). Toobin frankly seems obsessed with this decision. He has very strong opinions about it: "The struggle following the election of 2000 took thirty-six days, and the Court was directly involved for twenty-one of them. Yet over this brief period, the justices displayed all of their worst traits--among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court." (165)
It is worth noting that Stevens is perhaps the only one that didn't embarrass himself in this case. Toobin cites a "peroration" that Stevens composed from his home in Fort Lauderdale that pretty much sums it up perfectly: "Time will one day heal the wound to that confidence [in the men and women who administer the judicial system that is the true backbone of the rule of law] that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly [formerly "pellucidly," as Toobin notes] clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law." (207)
David Souter nearly resigned after Bush v. Gore. It took a serious toll on him. It seems clear that the he hated serving on the Court. This is probably an exaggeration. However, he comes across as, by far, the most interesting person in the book. One would naturally assume that Scalia provides most of the entertainment in this book, but it is actually Souter who is hilarious.
"Fifty-two years old and a lifelong bachelor, he had the habits of a gentleman from another century. During the day, he would leave the lights off in his office and maneuver his chair around the room, reading briefs by the sun. He ate the same thing for lunch every day: an entire apple, including the core and seeds, with a cup of yogurt. When the justices sat together in the dining room, the two items would be delivered to Souter on the same fine china that served his colleagues; Souter was familiar with Coca-Cola, but he had never heard of a beverage that several of the other justices favored--Diet Coke. Souter did all his writing by fountain pen. Perhaps the best known fact about the new justice was that when Warren Rudman, the New Hampshire senator who was Souter's friend and patron, gave Souter his first television set, he apparently never plugged it in." (51-52)
I could cite more examples but I don't want to spoil it all. Just one more to highlight the awesomeness of being a federal judge:
"Souter had minimal financial obligations and a lifestyle that hovered somewhere between modest and ascetic. He had no wife, no children, a venerable family homestead in New Hampshire, and a small apartment in an unfashionable neighborhood in Washington. He worked about seventy hours a week, and his main hobby was jogging. In the annual disclosure that the justices are required to file, Scalia reported being reimbursed in 2003 by universities and bar associations for twenty-one trips, several of them abroad; O'Connor came in second among the justices with nineteen. Souter was last, as usual, with none. He also reported no outside income from speeches or publications and no gifts. Still, Souter's New England frugality was one factor that kept him on the Court when he thought about resigning after Bush v. Gore. Years earlier, he had invested in local bank stocks in his home region, and after a series of takeovers, the value of his shares had soared. By 2003, he reported cash and stock assets between $5.2 million and $25.5 million, nearly tying with Ginsburg for the highest on the Court. But Souter was also acutely aware that federal judges were entitled to retire with full salary after fifteen years on the bench, a benefit that would become available to him in 2005, when he would be sixty-six. A resignation before that point would forfeit his full pension, so he told friends he thought it would be unwise to forgo that bounty. It was characteristic of his quirky personality that he would worry about his pension when he had little need for it--and almost nothing to spend it on--but Souter's colleagues were used to his eccentricities." (283-284)
Anthony Kennedy is probably the second most eccentric justice profiled in the book. He has a flair for the dramatic. His "sweet mystery of life" passage from Casey is mentioned more than a couple times. His prose is purple. However, I happen to like it most of the time. Also, though conservative, I tend to agree with a lot of his decisions. He is referred to as "the most dangerous man in America" when he seems to turn his back on the conservative movement by joining the "troika" of Souter and O'Connor in Casey, but now that O'Connor has retired, he is the ultimate "swing justice" and the most powerful man in America. (Everyone knows that he will cast the deciding vote on the constitutionality of the Affordable Care Act in June 2012--but then again, it would be just like the Court to surprise everyone on this issue. Further speculation on this issue is likely to be rendered moot and I do not like Flying Houses to exhibit obsolescence.)
His opinion in Roper v. Simmons (a case with which I am not intimately familiar) is emphasized because he pointed to the practices of other countries in generally not allowing the death penalty for juvenile offenders (the only countries that did allow it were Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China) and this greatly offended conservatives. There are some funny parts about him too, but probably the best is when Tom DeLay chastises him for doing research on the internet. But his chambers are (is?) worth noting:
"Understatement was the rule for the decor in most justices' chambers. Everyone had a few personal touches--O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit his 'called shot' home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars--garish touches that made the office a sort of comic tourist attraction for law clerks and other insiders. All of the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection. What was more, he wedged his desk into the far corner of his office, away from the door, so that visitors had to traverse the expanse of his room to shake his hand. It was an office that tried hard, maybe too hard, to impress. (Kennedy even labored on his magnificent view of the east front of the Capitol. When Congress announced plans to build a massive visitors' center between the Court and the Capitol, Kennedy took the lead in lobbying the legislators to make sure it was built entirely below ground, so as not to disrupt his vista. The negotiations turned out to be surprisingly complex, and lasted for years, but Kennedy won this battle, and the view from the Court was largely preserved.)" (172)
Antonin Scalia deserves mention next, as he was appointed close to the same time as Kennedy, and was actually his classmate, and former running partner. They are also close to the same age and likely to retire around the same time. Scalia is probably one of the most noteworthy members of the Supreme Court ever. He had 9 kids. He is of Sicilian descent. He was raised in Elmhurst, Queens. I think he is a Mets fan. I am very fond of his dissent in Romer v. Evans because of his bizarre mention of a law firm interviewee's hating the Chicago Cubs being permissible grounds for denial of an offer. Scalia rarely wrote important majority opinions, and probably has the all time record for dissents. His ideology may be abhorrent to me, but my feelings about him are much more complicated. I really respect his ability to "humanize" the Court and lighten the mood. I am also of Sicilian descent, and Catholic. Also, I totally agree with him about Crawford:
"In two decades on a generally conservative Court, his number of important majority opinions was almost shockingly small; asked at a public forum his favorite of his opinions--a common question for the justices in such settings--he came up with an esoteric case interpreting the Confrontation Clause of the Sixth Amendment." (368-369)
If this is indeed a reference to Crawford v. Washington (US, 2004), Toobin is making a serious mistake by calling it an "esoteric case." Crawford is one of the most important cases in the study of Evidence. Scalia draws upon practically the whole of human history in the development of the Confrontation Clause of the 6th Amendment. It makes for one of the more interesting reads that the Supreme Court has produced, at least for its storytelling quality of the trial of Sir Walter Raleigh in 1602. Furthermore, his recent dissent in Michigan v. Bryant (US, 2011) is also worth a read. Scalia feels very strongly about the Confrontation Clause, and I am inclined to agree with him on it. Moreover, he is often "a voice in the wilderness" and no one joins his dissents. This makes me feel bad for him in a way, and also makes me feel closer to him, because I feel the same way a lot of the time. His rejoinder to the editor of the Boston Herald after a reporter had written about his making an "obscene gesture" at a church is worth quoting at length:
"Your reporter, an up-and-coming 'gotcha' star named Laurel J. Sweet, asked me (oh-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said, 'That's Sicilian,' and explained its meaning--which was that I could not care less. That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini's The Italians: 'The extended fingers of one hand moving slowly back and forth under the raised chin means: 'I couldn't care less. It's no business of mine. Count me out.'...How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line of her article: '"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged.' From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene--especially when made by an 'Italian jurist.' (I am, by the way, an American jurist.)" (370)
Clarence Thomas dispels the notion that Scalia does all the work for him in this book. He may often vote with Scalia, but he is actually more conservative. By far the juiciest part of the book details his confirmation hearings. Flying Houses tries to avoid gossip better suited to tabloids and this is old news anyways. Thomas is noteworthy for being especially quiet. He has not asked a question during oral arguments in years. Perhaps this gives the impression that he really does not like his job. He always votes against affirmative action, and hates it, though he himself is a beneficiary of it. He is probably the most controversial member of the Court. However, Toobin points out that he is also universally beloved, and extremely nice to everyone in the building. He makes a personal effort to know the names of the cafeteria workers. He befriends a lesbian couple and keeps the picture of one of them, a snowboarder, on his desk. He also occasionally gives interesting speeches.
"He had an understandable sensitivity to the common (and false) notion that he functioned as Scalia's pawn on the Court. This idea was absurd not least because the two justices' voting records were different, with Thomas well to the right of his senior colleague. What was notable, though, was that Thomas attributed this canard to racial, not political, bias. As he put it in a speech in Louisville, 'Because I'm black, it is said that Justice Scalia does my work for me. I understand how that works. But I rarely see him, so he must have a chip in my brain that tells me what to do.'" (126)
More egregious is the Media Research Center's annual dinner story:
"After speeches by Michael Reagan, the president's son and a talk show host, and Oliver North, also at the time a figure in right-wing radio, the climax of the evening came with the presentation of the 'I'm-a-Compassionate-Liberal-but-I-Wish-You-Were-Dead Award for Media Hatred of Conservatives.' This award was presented to an obscure columnist named Julianne Malveaux, for saying in a cable television interview about Thomas, 'I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do.' Thomas had been laughing so hard early in the evening that Evans, the MC, said to him, 'Justice Thomas, you are a great audience, too.' When Thomas stepped up to the microphone to 'accept' the award for Malveaux, he received a standing ovation. 'Thank you,' the justice said, still laughing. 'Normally, we are busy. This is a sitting week, so we have cases to decide tomorrow morning at 9:30, and I usually spend this night working. But we realized that this was such an important occasion that we decided it was time to put aside our personal obligations, the Constitution, the work of the Court, our little nephew, to attend...I am pleased to accept this award on behalf of Suzanne Malveaux.' Thomas had mixed up Suzanne, a CNN correspondent, with her distant cousin Julianne; both are African American women. As always, the confirmation hearings were never far from Thomas's mind. 'As I was listening to those awards, I was hoping that Nina Totenberg would also share in it,' he said. Totenberg, the NPR legal affairs correspondent, had played an important role in bringing Anita Hill's story to the public. 'I have finally had the opportunity to have my surgeon remove her many stilettos from my back, and I'd like to return them.'" (132)
By contrast there is very little interesting to say about either Breyer or Ginsburg. They are both liberals, both former law professors, and generally vote in a reasonable manner. Breyer is probably the most obscure member of the current Court. His expertise was in Administrative Law. He always likes to avoid conflicts and tries to make compromises with all of the other justices. He also really enjoys his work on the Court. He stays in good shape. Ginsburg, by contrast, seems annoyed most of the time. She writes very well, and has been extremely influential in the field of women's rights. However, if anyone watched the State of the Union Address last January and saw her basically face-forward asleep, it's clear she hates formal committments that have little meaning. Also, it's clear the work on the Court is not for the faint of heart. Who knows how they have the energy to deal with all that reading and writing? Ginsburg and Breyer were both nominated one after the other by Clinton (not unlike Roberts and Alito by Bush) in the wake of Byron White's and Harry Blackmun's retirements. Along with these two, Lewis Powell also figures somewhat prominently in this book as a friend and mentor to O'Connor, and the author of the Bakke opinion. The friendship between O'Connor and Breyer is also heavily emphasized. But really, most of what comes across in this book is the absolute mess that Clinton made in his search for replacement justices. It took an incredibly long period of time and he went through dozens of options.
This is one of my major complaints about the book. There is a very heavy focus on the "search" for replacement Supreme Court justices. Probably 50-75 pages of the text are taken up on this issue. Now, this will prove very useful to any reader (perhaps an 8th grader) that wants to set themselves up perfectly for an appointment (as apparently Roberts did). But to the rest of us it is just depressing. The lengthy background questionnaire you have to fill out is just scary. The scrutiny is unbelievable. However, Thomas managed to get confirmed despite his controversies, so maybe it's not all bad. Just so long as you can prove you're going to make the right vote, you should be fine. It also helps to have some experience as an actual judge.
We end this lengthy review with William Rehnquist, who, near the end of his tenure as Chief, stopped caring about the reasoning in the opinion and just cared about the votes. He thought that was all anybody cared about anyways, and the reasoning would get overruled eventually too, so who cares. He was meticulous when it came to being on time and keeping the Court efficient and organized. He knew O'Connor from their days at Stanford together. They were friends for 50 years. He was very conservative, but eventually, he stopped caring so much about the "cause" and arguably moved a tad towards the middle. His health problems are emphasized in the book:
"For a large, strapping man, Rehnquist had a delicate constitution. He had a chronically bad back, from an injury he sustained while gardening, and the pain would sometimes cause him to stand up during oral arguments at the Court and take a few steps behind his chair. In the early 1980s, he was even hospitalized for the back problems, and the treatment created new issues. The painkillers caused him to slur his words, and the problem became embarassingly noticeable when he asked questions in Court. The FBI investigation in connection with his promotion to chief justice revealed that Rehnquist's medical problems were more serious than the public was led to believe. He had been addicted to the sedative Placidyl for at least four years, and when he was hospitalized during his withdrawal from the medication in 1981, he suffered hallucinations. On one occasion, he told a nurse that 'Voices outside the room are saying they're going to kill the president.' Still, by the time he became chief, in 1986, his condition appears to have stabilized, in part because he took up tennis. Even though he was entitled to hire four law clerks, he generally took only three, which suited his weekly doubles game." (37-38)
The book came closest to bringing tears to my eyes during a particularly moving passage near the end of Rehnquist's tenure:
"In truth, Rehnquist was a tired old man in the spring of 2004. And he had grown cynical about the work of the Court. Over the years, his opinions had become more terse and cryptic because he had come to think that only the results, not how the justices explained them, really mattered. As Rehnquist told one colleague, who was shocked by the chief's gloom, 'Don't worry about the analysis and the principles in the case. Just make sure that the result is a good one this time around--because those principles you announce will be ignored in the next case." (276)
"In 2004, Stevens was eighty-four, the oldest among them, but he enjoyed robust health and no affinity for the president who would appoint his replacement. Rehnquist, closing in on eighty himself, was the most likely to leave. He had spoken candidly of his belief that justices should hand their seats to the party of the presidents who appointed them, and George W. Bush's conservatives politics reflected his own. But Rehnquist didn't want to retire. He was a widower who lived in a small town house in suburban Virginia. His three children were long grown. He liked his job and his colleagues. His health was satisfactory, if not robust. With his trademark directness, Rehnquist would point out the grim truth about retirees from the Supreme Court: all they did was die, usually sooner rather than later." (277)
I'll leave it there rather than spoil it any further, but I was quite shocked by Rehnquist's condition at the end of his time on the Court. I think I have said all I need to say about this book--except that it ends on a note of uncertainty--whether Obama or McCain would win in 2008. We know what happened, and we know Sotomayor and Kagan are now on the Court and that it is pretty much split down the middle with Kennedy. I read an article in the Tribune today about how both Clarence Thomas and Elena Kagan should recuse themselves from the Affordable Care Act decision. They cancel each other out anyways. The conservatives will fight tirelessly to get Kagan to recuse herself, and the liberals will fight (perhaps with less vigor) to get Thomas to recuse himself. "Politricks" at work to again....It makes me sick.
But if you care at all about politics, you owe it to yourself to read The Nine. I doubt you will be disappointed.