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Trying to write a potboiler about the Supreme Court is not for the faint of heart. It can be a stubbornly mundane institution, with plot points that stretch over years, if not decades. It’s a place cloaked in ritual, not so much for the purposes of secrecy as for comfort. Think of Clarence Thomas famously declaring, “I ain’t evolving,” and considering that the highest of virtues. So Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court isn’t “The Perils of Pauline” or even Presumed Innocent. And it never gets more breathless than its title, but, all the same, it provides a welcome window into a coequal branch of government that remains largely a mystery to most Americans. Whether those Americans care is another matter entirely, and Doubleday, Toobin’s publisher, has done its best to make them. Thus the reader is promised an escort into the Court’s “secret world,” as if one of those ceremonies from Stanley Kubrick’s “Eyes Wide Shut” could break out at any moment. We all know better, “we” being, of course, the people who read this publication and who will end up reading the book and appraising it in harsher terms than most. Which is to say, we already know quite a bit about the high court, and the question is what Toobin, a skilled writer and commentator, can tell us that we don’t already know. In that regard, he’s at a bit of a disadvantage, with his book coming at the tail end of a wave of Supreme Court books, from Joan Biskupic’s biography of Sandra Day O’Connor to Linda Greenhouse’s history of Harry Blackmun to Jan Crawford Greenburg’s Supreme Conflict. (Surely, The Secret Life of Roger B. Taney is in the offing, and if not, I’ll take a stab at it — as long as there is an advance.) Greenburg’s book, released earlier this year, tracks much of the same period as Toobin’s, with special attention paid to the behind-the-scenes maneuvering that gave us the two most recent justices, John Roberts Jr. and Samuel Alito Jr. Everyone, it seems, has a layer of the onion to peel back. Toobin, however, works from a position of strength, one perhaps aided by his lofty perch at The New Yorker. He doesn’t seem to be too worried about making points with the justices. Thus, in long form and shorthand, Toobin spares little in a cold assessment of each justice’s shortcomings. At one particularly entertaining, if inflammatory, juncture, after the monumental case Bush v. Gore is decided, Toobin even resorts to a quick index-card rundown of the weaknesses of each, as if he were Mel Kiper on draft day. An example: • William Rehnquist: results-oriented, intellectually lazy, politically partisan

• Sandra Day O’Connor: unprincipled, impatient, dedicated to the appearance of moderation rather than its reality • Anthony Kennedy: basic judicial ineptitude compounded by empty rhetoric I guess we’re lucky that Oliver Holmes and Benjamin Cardozo aren’t around to get this treatment. Kennedy has previously been called many things (including, as Toobin recounts, “the most dangerous man in America”), but inept is likely not one of them. In fact, Toobin seems to save his harshest criticism for the three justices mentioned above. He has little respect for practicalities, believing that Rehnquist’s interest in efficiency, O’Connor’s quest for pragmatism, and Kennedy’s passion for the trappings of office fatally undermine their judicial philosophies. By that token, justices such as Thomas, Antonin Scalia, and especially David Souter come off better. At least they’re consistent. Still, no one receives a free pass, especially where the Florida recount case is concerned. “The justices did everything wrong,” Toobin writes. “They embarrassed themselves and they embarrassed the Supreme Court.” Toobin’s point isn’t so much that the Bush legal team stole the election (although Theodore Olson’s and, to a lesser degree, Roberts’ role in the fight is required reading for anyone who may have forgotten) but that the Court had no business intervening in what was essentially a matter of state law. He lays most of the blame at the feet of Kennedy, who, Toobin says, was so hungry for the case he resorted to providing the other justices with regular updates on the Florida proceedings. It was a traumatic experience for some on the Court, especially Souter, who, Toobin says considered resigning afterward. Later, the thought of the case would sometimes reduce him to tears. (Souter isn’t the justice in the book caught crying, by the way.) Perhaps just as interesting, Toobin details how the whole sordid business transformed Kennedy, pushing him toward the left and a furtive embrace of international law. The Court went along with him, leaving Rehnquist’s promised federalism revolution in the dust. But to some degree, this is all ancient history now. And that selfsame revolution may have not been stopped but simply temporarily stymied. Roberts and Alito brought with them a new dynamic and, with that, a new Court. That’s good news for Toobin and his chronicling colleagues. Because there’s one golden rule in Washington: New eras yield new books.


James Oliphant, formerly editor in chief of Legal Times , is national correspondent for the Chicago Tribune .

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