Wednesday, October 27, 2010

The Nine: Inside the Secret World of the Supreme Court

I really struggled with making this review approachable, so I apologize if it is still too intricate.

The Supreme Court has always been a theoretically interesting institution. Serving as the hand of American law and acting as one of the many checks and balances upon United States policy, the Supreme Court always feels distant, timeless, and wise. One pictures a high court of nine old men and women draped in the robes of office. One imagines the scales of Lady Justice along with the marble pillars before the court's hallowed halls. When it occurred to me how little I knew about the Supreme Court, I decided to do what I could to learn of it. Thus did my goal lead me to this book, The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin.

Two Decades of Judicial Upheaval

The book focuses primarily on the court's recent history. The past twenty years, to be precise. In this time period, we see faces change and disappear but, for the most part, the court retains the same group of justices for a record period of time. In reading this book, I discovered how politicized and, occasionally, polarized the justices can be, along with the immense influence presidents can wield in assigning a justice to the court. I learned how justices do their best to wait for a president they approve of before retiring, so as to be replaced by new justices who have similar beliefs, ideologies, and legal philosophies. In short, I pierced the mystique of the court, and was saddened by the truth. But I will touch on this later.

As a book, the flow occasionally becomes disjointed and can jump around wildly. Jeffrey Toobin's writing approach involves detailing one case after another. Tangents pop up constantly; he deviates into talking about each separate/new justice from time to time. He also likes mentioning, in detail, habits and nuances of the court, how justices are appointed, how their clerks work and interact, their lives outside of the court, etc. The result is a page-turner, but one that is sometimes hard to follow. I managed to attain an impressive knowledge of how the court works and who is in it, but the journey to get to this point had many twists and turns. At times, I wished that this book had more of a chronological order to it; the author tends to bring in stories and events that have some relevance to the overall timeline, but does so in a manner that can cause confusion.

One thing that is especially important to note about this book is the clear agenda of the author in writing it. The goal of the book is to highlight the influence of a far-reaching conservative agenda on judicial appointments. Essentially, the author explains how conservative movements and presidents have done their best to stack the Supreme Court in their favor so as to overturn gun controls, the right to abortions, immigration, separation of church and state, and others. At first, I was worried that this argument of the author's would dominate the book, lead to cherry-picking of facts, and render the book a useless propaganda piece. But, thankfully, this was avoided. The facts and cases showed flaws and extremes in both sides. And the argument was largely confined to the introduction and conclusion of the book, leaving the middle to illustrate an unbiased history of the past twenty years of the Supreme Court.

The Loss of Stare Decisis

However, I did not quite agree with the author's point of view. The author wants me to believe that the conservatives are basically taking over the Supreme Court. To a certain extent, this is true; recent years have shown us that judicial decisions have taken on an increasingly conservative bent. But this is not unusual for the court. From the 1940s to the 1990s, the court was predominantly liberal in composition, and this worked out just fine. Civil rights were granted and defended. Cases were decided by precedent of law and rational argument. Politics, for the most part, stayed out of it, and the Supreme Court functioned brilliantly.

But, more recently, this has changed substantially. The key problem here, to my eyes, is that the justices more and more have been making their decisions without consideration for stare decisis, precedents created in law by the cases decided in the past. For example, Brown v. Board of Education establishes the precedent that racial segregation is inadmissible and unconstitutional. The recent case of Grutter v. Bollinger decided that affirmative action in universities was unconstitutional. Essentially, this decision created a bizarre paradox; universities can't segregate, yet they are not allowed to permit student selections based on race (the result is, sadly, universities that can become overwhelmingly white because of scores being higher on average among white applicants). This is but one example. Precedents are considered less important or binding now, even though the existence of precedents effectively defines the rule of law for the land.

Another problem is that justices are being appointed (particularly conservative judges) based on their strict adherence to ideology instead of devotion to the law. This leads to the indifference to stare decisis and polarizes the courts toward extremes. Prime among these is Clarence Thomas, a justice who believes explicity in conservative originalism, taking the Constitution literally instead of recognizing its status as a document created to last the ages and to adapt over time to fit the present. Time and time again, Thomas' views seemed destructive to the rational rule of law. An example comes to mind where he supported torture, saying that the Bush adminstration should be allowed to torture even more painfully and explicitly. He says in his brief (Baze v. Rees) that, in the late 1700s (the time of the Constitution) that anything short of being, "Hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces – that your head be then cut off, and your bodies cut in four quaters", should be permissible (the quote involves the penalty for treason in eighteenth-century England). This is clearly a belief not supported by the Constitution, yet it is still one that Thomas believes and voted on in an effort to decide laws that are held over us all.


Basically, what disturbed me most about this book was learning of this recent disregard for stare decisis and the fact that the justices are becoming more politicized; they are affected by political trends and impressions far more than they have been in the past, losing their status as the branch that is the aloof, ethical heart of the government. They are becoming more conservative, it is true, but this is not without precedent. The issue is that presidents (I'm pointing at you in particular, Bush Jr.) have become far more interested in finding justices who believe wholeheartedly in their party instead of the rules of law, only appointing those who match up to beliefs on every level and who will be trusted to stick to them. This creates a Supreme Court that decides cases based more on personal opinion and ideology instead of legal precedents and judicial trends.

This book is definitely worth reading, and I fear that my description of it has been more intricate than I had hoped to make it. Dealing with the technicalities of law has that effect, and these precise points are similarly the language of the book itself.

One final note, though, would be that this book will make you energized and, occasionally, outraged. It can't be helped. The book delves into all the immensely polarizing and upsetting cases of the past two decades. Its effect, after all, caused me to write two preceding posts about gay marriage and evolution versus religion. What can I say? This book can get you pumped and it is a worthy and compelling read.



  1. I know this wasn't the point at all, only a brief caveat, but where do you personally stand on torture?

  2. In short, I lean against it, but also sympathize with supporting views for it, so I can't say I condemn it completely.

    The way I see it:

    + If there is a chance to save many people by torturing one, then why not take it?

    - Torture is morally repugnant.

    - Under torture, people will say ANYTHING to get it to stop, so helpful or correct information is potentially impossible to get.

    - You might torture someone who doesn't know jack shit, but you wouldn't be able to tell.

    - Acting on information obtained through torture could be harmful or wasteful.

    I would say that a really great movie that is both entertaining and informative regarding this dilemma is the recent movie, "Unthinkable", with Samuel L. Jackson and Michael Sheen. You should definitely see if you haven't already, it basically analyzes every positive and negative possibility that I can think of while still maintaining an interesting story with intriguing characters.

    How bout you? What is your stand on torture?

  3. Les juges devraient veiller à l'application de la loi et non pas en créer de nouvelles. Je ne vois qu'un moyen pour limiter leur pouvoir devenu exorbitant dans les démocraties modernes : autoriser le peuple à renverser par son vote (référendum ou votation) n'importe quelle décision de la Cour suprême : les juges se montreraient plus prudents.