The Nine: Inside the Secret World of the Supreme Court

  • Jeffrey Toobin
Doubleday: 2007. 384 pp. $27.95 0385516401 | ISBN: 0-385-51640-1

The United States Supreme Court is one of the more unusual aspects of a very unusual country. An unelected body that is expressly non-political, its membership is subject to bitter political struggles and its decisions can have profound political consequences — sometimes even changing history. Its nine members are famous but faceless, oddly impersonal in the midst of a culture of celebrity. These nine people work painstakingly at a difficult job that is usually routine and often obscure.

George W. Bush nominated two of the current nine Supreme Court judges. Credit: J. S. APPLEWHITE/AP

Jeffrey Toobin is a staff writer at The New Yorker and a legal analyst for CNN. His latest, very readable book is one of several efforts in the past few decades to personalize the Supreme Court and its members. He does so through a close examination of the past 20 years of its membership and decisions. The inside stories of the famous cases he discusses are not shocking, they are intriguing — particularly the discussion of Bush vs Gore, which prematurely ended Al Gore's challenge to George W. Bush's 2000 election. The book's strength, though, is not its account of the court's history, but what it reveals about the men and women who wear the robes. It is enlightened and enlivened by insights gleaned from Toobin's many interviews. Toobin focuses particularly on the rise to prominence of Justice Sandra Day O'Connor and the likely conservative future of the Supreme Court after her 2006 retirement.

Nearly 30 years ago, I had the good luck, and honour, to serve as a law clerk for a justice of the Supreme Court. Toobin's portrayal of the court generally feels right to me, although he overemphasizes the influence of public opinion on it and slights its less dramatic aspects. Many of the cases have no liberal or conservative side, which may help to explain why even the deeply divided court of recent years decides about a third of its cases unanimously.

Just as science clocks up more drudgery than 'Eureka!' moments, Supreme Court justices spend most of their working lives reading yet another claim that a prisoner's attorney was incompetent, or writing and rewriting another background paragraph for a case that will attract no attention. In some ways, a justice's work resembles a scientist's. Both examine lots of inputs — laws, precedents and arguments for the justice; data and hypotheses for the scientist. And they try to make sense of them, to find a solution that will work. Both know they will have to defend their solution by the authority of their positions and by their reasoning. Scientists' papers are scrutinized for any weaknesses by friends and rivals; justices face external and internal critics, sometimes being the targets of stinging dissent from their colleagues on the Supreme Court

In most cases, no verifiable (or falsifiable) truth underlies the Supreme Court's decisions. As Toobin illustrates nicely, every justice has a different view of the law, and the world. The justices (and their law clerks) are intelligent, hard-working and dedicated, weighing and re-weighing every word. Technically, 30 years ago and today, the justices usually do an excellent job, but their different perspectives often lead to different decisions. The book shows that these views are complex and can be only poorly summarized as 'conservative' or 'liberal'; the effects of those views are also complicated.

In ways that non-lawyers do not always understand, the Supreme Court is the weakest part of the US government. It has no power over the laws of the 50 states unless those laws run foul of the regulations, statutes or Constitution of the federal government. It cannot overturn actions by Congress unless they violate the Constitution, or of the president unless they violate the Constitution or statutes. Even when such issues arise, the court is forced to be responsive, not active. Justices who want to decide an important issue have to wait for it to be argued in a real case that reaches them through a chain of lower courts. Then they have to hope that they can persuade at least four colleagues to agree with them, on both the result and the reasoning.

Still, the Supreme Court has plenty of power and that power will sometimes involve science. It applies patent and copyright laws in ways that affect high-tech industries and universities. It can interpret the First Amendment to judge attempts to limit the teaching of evolution. It can decide what kind of scientific evidence a court can admit. But most of what is important to 'science' itself is not within the Supreme Court's jurisdiction. For example, President Bush's restrictive stem-cell funding policy or California's expansive policy could come before the court only on claims that they violated the Constitution, but no such claim is plausible. The Supreme Court will not rule on whether human actions are changing the climate: at most, it might decide whether state regulation of industries to limit climate change interferes with powers reserved to the federal government.

Crucial disputes about the funding of science, or on the influence of industry on agency actions supposedly based on science, simply will not come within the Supreme Court's reach. Its decisions about abortion and sexual freedom will influence public health, but will not, on either side, involve much science. I am unhappy about the Bush administration's general attitude towards science and its selection of Supreme Court justices, as two separate harms; a conservative counter-revolution on the Supreme Court would change the United States (for the worse, in my view) but is unlikely to have a major effect on science.

Will that counter-revolution take place? Observers have proclaimed its coming since at least 1969, when Chief Justice Burger replaced Chief Justice Warren — Toobin himself details other such failed reversals in the past 20 years. The Supreme Court's future course depends largely on its future members, who in turn depend on future presidents and senators — and the public opinion to which they all, in part, respond. It also depends on the current 'nine' and how (not if) they change during their years on the court.

Toobin's book is an excellent introduction to today's Supreme Court, but readers must bear in mind that part of the “secret world” of the court is its own future course.