Review of Jeffrey Toobin's "The Nine"

Jeffrey Toobin. The Nine. Inside the Secret World of the Supreme Court. New York: Anchor Books, 2007 (2008 edition with a new afterword). Paperback, 451pp., index, ill. $15.95 (ISBN 978-1-4000-9679-4)

This book is, as the endorsement by Michiko Kakutani from the New York Times (printed on the cover) says, “compelling.” Indeed, Mr. Toobin, well-known legal analyst for CNN is more than just a clear head. He is also a good writer. Toobin knows what he is talking about and he delivers his message in a very readable style.

In twenty-five chapters, the book describes the important developments of the later Rehnquist court and into the new Roberts court. Toobin has one important lesson for any layman with an interest in the Supreme Court: judges are politicians. Especially gripping is his description of the very controversial Bush v. Gore case of 2000. His judgment of that case, which he already described in his previous book Too Close to Call, is devastating but Toobin is also very evenhanded. He condemns all justices equally for conduct unbecoming of a judge. Every last of the justices played politics with that case when any law student could have told you that the Supreme Court had no jurisdiction under the Constitution to even hear the case. Nevertheless, the justices also did not affect politics in any way, because even if they had not illegally handed the Bush team his electoral victory on a silver platter, Bush would have won anyway, had Gore’s recount challenge been allowed to work its way through the Florida court system.

Toobin describes that case in several chapters showing enormous depth of knowledge—the most profound knowledge of all the cases he describes—and an ability to empathize with the ‘other side.’ It must come as no surprise that Mr. Toobin, working as he does for CNN, does tip his hand every now and then as a liberal, dismissing some conservative victories as unreasonable and many of their arguments as mendacious.

This becomes all the more clear in the unnecessary new afterword in the 2008 reprint. In it, Mr. Toobin shows himself to be more of a political journalist than a legal analyst. The afterword was clearly written in the thick of the 2008 presidential campaign and Toobin finds it necessary to take some cheap jabs at Republican candidate John McCain. Without the afterword, the book would have had a perfectly elegant ending. With it, the essentially fair treatment of a contested topic is defaced by an author’s ugly unmasking of himself, revealing a bitter hatred for perceived Republican hypocrisy in matters judicial.

Mr. Toobin proves himself to be an especially keen observer of mankind. We learn a lot of things about the personalities of the justices. The book is anything but flattering of the Rehnquist court and the judges who served on it. One wonders whether perhaps the author does not occasionally pass too harsh judgment on some of them. (At least in this indelicacy he pays neither the court’s liberals nor its conservatives any favors.) Justice Thomas is treated perhaps the least kindly when Toobin rakes up the Anita Hill affair again, repeating once more the long-whispered but not substantiated rumor that Ms Hill was right in her charge of sexual misconduct (and that Thomas was addicted to pornography on a profound scale). Mr. Toobin’s description of Clarence Thomas as the kind substitute father to his grandnephew, though endearing in itself, hardly makes up for the unnecessary jabs at Thomas the pervert.

Still, on the whole these are relatively minor flaws in a book that is truly interesting. Mr. Toobin’s look at the politics behind the nomination of justices, the maneuvering of the justices behind the screens, even some of the Congressional debates over the court is enlightening and well written. For those who are prepared for a left-leaning view of the Supreme Court, this book must be considered a very mildly biased book, and with the bias largely restricted to a small number of the author’s pet topics. Because it is so wonderfully crafted, so well researched no reasonable person could dismiss this book as unworthy propaganda—because it is not.

Four and half out of five stars.