Executive Times






2008 Book Reviews



The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin








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In his new book, The Nine: Inside the Secret World of the Supreme Court, Jeffrey Toobin makes the case that when it comes to the members of the Supreme Court, it’s all about ideology. As a staff writer for The New Yorker and CNN’s legal analyst, Toobin brings a journalist’s skill at making a story interesting to every chapter of this book. While occasionally repetitive, Toobin reinforces with anecdotes key revelations about the ideology of each current and recent justice on the Supreme Court. Here’s an excerpt, from the beginning of Chapter 17, “The Green Brief,” pp. 215-217:


The period leading up to the Grutter and Gratz decisions the early part of 2003 was not an easy time for O'Connor. Her husband John's condition had continued to deteriorate. He had started to accompany her to work every day, and the justice hired his former secretary to keep an eye on him as he sat on the couch in her office, chatting or reading the newspaper. No one uttered the word Alzheimer's at the Court, but the nature of John's problem was increasingly obvious to all.

The justice and her husband would arrive together in time for her exercise class in the morning, stay through their lunch together, and then return home at about two, when she would read briefs. Even then, they never stopped going out at night, to embassy parties, mu­seum openings and the like, just as O'Connor had continued making the rounds fifteen years earlier, when she was weakened by her chemotherapy for breast cancer. In her forthright, determined way, O'Connor did not believe in making concessions to illness, her own or anyone else's.

O'Connor's own health was fine, despite a persistent tremor that she had had for years. For her morning exercise class, she added salsa dancing to step aerobics and Pilates. She still loved the work of the Court and always sought more of it. O'Connor never signed on to Rehnquist's crusade to cut the Court's docket and thus was always urging her clerks to scour the petitions for cases where she could vote for cert. "Find us some good cases!" she would say.

Still, like many older people, O'Connor resisted changes to her rou­tine, especially the one promised by an impending renovation project at the Court. The building had not been upgraded since it opened in 1935, and Rehnquist had prevailed upon Congress to fund a full over­haul. Each of the justices would have to vacate his or her chambers for a while, and O'Connor was slated to be the first evacuee, in 2004. A pack rat who loved her view and her office, especially now that John was joining her there every day, O'Connor dreaded the prospect of moving to the Siberia of the Court's second floor.

By now, O'Connor usually had little trouble making up her mind about how to vote. She assigned one clerk to write a bench memo on each case to be argued and then invited the other clerks to write counter-memos if they did not agree with their colleague's recommendation. This was the year that O'Connor cut back to a five-day schedule—there were no more crockpot lunches for her clerks on Saturdays—but she still went over each case with them before oral arguments. She did not ago­nize. Having laid out her views for her clerks, she had them help her craft some questions for the lawyers for both sides. She didn't believe in playing devil's advocate, either. The tilt of her questions at oral argu­ment almost always showed the way she was going to vote.

But Grutter and Gratz were different. They were not easy cases for O'Connor. This time, she did agonize. In the first place, the stakes were enormous. Unlike some high-profile cases before the justices, the Michigan lawsuits had more than symbolic importance. Admissions de­cisions for thousands of students were at stake, and so, less directly, was all affirmative action in government and private companies. (In con­trast, because there were so few actual prosecutions for sodomy, Lawrence v. Texas, which was argued the same year, had fewer immediate, real-world consequences.) In addition, O'Connor's favorite route through any problem—the middle of the road—wasn't readily obvious. Either universities could consider the race of their applicants or they couldn't; even O'Connor would have trouble finessing that kind of choice.

In the weeks leading up to the argument, O'Connor sequestered herself in her office, poring over the briefs of the parties and the am­icus briefs as well. Stewing over the Michigan cases at length—a rar­ity in itself—she would pop out of her office with cryptic and sometimes contradictory observations. She was thinking out loud.

"I need to be consistent with what I said in Croson and Adarand." This suggested a vote for the plaintiffs. (O'Connor thought that a jus­tice being inconsistent was . . . unattractive.)

"Race consciousness is a pernicious thing."

But O'Connor also said:

"What if these schools become all-white? Can we live with that?"

"This isn't government contracting. This is education. And Lewis said that education was different."

"Lewis" was Lewis Powell, O'Connor's mentor on the Court and her predecessor as its swing vote. The key precedent in the area was Powell's opinion from 1978 in Regents of the University of California v. Bakke, where the Court struck down a rigid quota system for minorities at the state medical school at Davis. (In each year's class, the university reserved sixteen of one hundred seats for minorities.) In that case, no opinion of the Court commanded a majority, but Powell's came the closest and his view came to be considered the pre­vailing law on the subject. Powell rejected the quota system at Davis, but he did say that universities could use race as one factor in admis­sions. His reasoning was somewhat unusual for his time. In the sev­enties, the main justification offered for affirmative action tended to be that the nation owed a special debt to blacks and other historically disadvantaged groups; because of decades of discrimination, mere equal treatment was not enough to provide them a fair chance.

But Powell justified affirmative action because of what it did for everyone, not just for its immediate beneficiaries. In his view, diver- sity a buzzword that came into wide use only after Bakke helped all students of all races. "The nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples," Powell wrote, so "race or eth­nic background may be deemed a `plus' in a particular applicant's file." (Powell quoted at length from the admissions plan at Harvard College, which stated, in part, that "the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases.") In the subse­quent twenty-five years, Powell's rationale had become the dominant intellectual justification for affirmative action not as a handout to the downtrodden but as a net benefit to the society as a whole.

The question in Grutter and Gratz was whether Powell's ruling should remain on the books. As the justices emerged from behind the red curtain to hear argument on the morning of April 1, 2003, not even O'Connor's clerks knew how she would vote.


As shown in the excerpt, Toobin’s writing is lively in The Nine, and his message is an important one for readers to consider: the ideology of the justices will influence American life for a long time to come.


Steve Hopkins, June 20, 2008



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