Denver Bar Association
May 2008
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The Nine: Inside the Secret World of the Supreme Court

by Marshall Snider

 

Pop quiz, hotshot. In the history of the United States Supreme Court, what was the longest period of time that the same nine justices sat on the Court, with no deaths, retirements, resignations or replacements? You don’t have to look very far back for the answer. The membership of the Court did not change for 11 years, from 1994 to 2005.

Once this long standing nine began to change, however, it changed radically. With the death of Chief Justice William Rehnquist and the retirement of Sandra Day O’Connor, the Court took a sharp turn to the right.

In his book "The Nine: Inside the Secret World of the Supreme Court," author Jeffrey Toobin takes a fascinating look at the members of the Court during the period leading up to 2005. He summarizes their decision-making processes and the forces that led to a conservative revolution on the Court during the Bush administration.

Most of the justices sitting on the Court after 1991 had been appointed by Republican presidents. Toobin discusses the personalities of these justices and describes the ways in which they came to the Court.

O’Connor was the political justice, in touch with the pulse of the country. As the swing vote between liberal and conservative justices, she became the most prominent member of the Court during these years. If she said a law was constitutional, it was; and if she said otherwise, the law was determined to be unconstitutional.

Then there is Justice Antonin Scalia, the originalist. Because the Constitution does not mention a right of privacy or abortion, for example, Scalia was convinced that Roe v. Wade was wrongly decided. Scalia has no room for compromise of his originalist philosophy. Still, for all his bluster Scalia has little influence on his colleagues and has authored few important majority decisions.

Furthest to the right was Justice Clarence Thomas. His views were considered extreme even by Scalia. (When asked to compare himself to Thomas, Scalia reportedly said: "I am an originalist, but I am not a nut.") Thomas was rarely assigned majority opinions because his views were too extreme. In 104 oral arguments in the 2006–07 term, Thomas famously did not ask a single question of the lawyers.

Despite the presence of mostly Republican appointees, by the end of the Clinton administration, conservatives believed that the Court’s moderates held too much sway on issues important to the right, such as federalism, abortion, church-state relations and the death penalty. To conservatives, the Rehnquist Court was not a court of true believers like Scalia and Thomas, but a bunch of middle-of-the-road compromisers led by O’Connor. The right wing realized that what it needed was not better arguments, but better justices.

Things began to change with the 2000 election of George W. Bush. Toobin describes the Court’s deliberations in Bush v. Gore in tantalizing detail. The Court broke with tradition by tracking the election results in Florida and agreeing to hear the case — at least five justices wanted to get involved and knew much about the issues even before the case was fully briefed. In the end, Tobbin writes, the opinion awarding the election to Bush was flawed in its reasoning due to haste and contentiousness among the justices, and was perceived by many as partisan, not an independent decision based on the rule of law. Outside the results of the election, conservatives could not buy a break. In their view, the Court’s decisions continued to be too moderate in areas such as privacy, affirmative action and the "enemy combatant" cases. Even the justices who voted for Bush in the election decision sided against the administration in many of these cases. O’Connor and Justice Anthony Kennedy moved to the left in response to actions of the Bush administration. Toobin takes us on an inside journey through these crucial post-2000 election decisions.

With Rehnquist’s death and O’Connor’s resignation, the President played into the ideology of his conservative base in his nominations of new justices. Bush went on the lookout for nominees who would reverse Roe v. Wade, expand executive power, speed executions, welcome religion into the public sphere and strictly construe the constitution. John Roberts and Samuel Alito were appointed, and Toobin dissects the politics of their nominations. Roberts — viewed as too moderate by some — secured the nomination while on the District of Columbia Court of Appeals. There, Roberts upheld a broad use of executive powers when he ruled in favor of the administration on the issue of military tribunals for Guantánamo Bay prisoners. Toobin also plays out the "black comedy" of Harriet Miers’ nomination, and he lists Alito’s impeccable conservative credentials.

The new appointments paid immediate dividends to the right. The Court was now dramatically conservative. For the first time, the Court upheld an abortion law that did not provide an exception for the health of the mother. Justice Ruth Bader Ginsburg noted that the law had not changed, just the composition of the Court. The Court also moved to the right in Title VII civil rights cases, limiting back-pay remedies. The justices were now divided four to four, with Kennedy taking over the swing position, and cases were decided on a 5–4 vote in unusually large numbers. Several precedents on abortion, campaign finance, affirmative action and church-state relations took a right turn on a 5–4 vote. These precedents weren’t overruled, just limited or ignored.

Toobin concludes from all of this, as have many others, that at the Supreme Court political judgment trumps the law; what matters is not the quality of the arguments but the identity of the justices.

This book provides an exciting inside look at the Supreme Court and its political environment. It should be required reading not just for lawyers, but for anyone interested in how things work at the top of this co-equal branch of government.


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