The Nine: Inside the Secret World of the Supreme Court (Paperback)

Reviewed by Edward Lazarus

In 1979, Bob Woodward and Scott Armstrong published The Brethren, an eye-popping look into the closed world of the Supreme Court under then-Chief Justice Warren Burger. Through interviews with several justices and dozens of former law clerks, the authors captured the personalities, rivalries, politics and principles that drove the court’s decisions.

In the decades since, a number of writers have tried to do for the court under Chief Justice William Rehnquist (and now John Roberts) what The Brethren did for the Burger era. With The Nine, Jeffrey Toobin, a New Yorker staff writer and CNN legal analyst, becomes the latest.

The idea behind The Nine — that the public should understand the court’s inner workings — remains vital. To a degree that would baffle the Founding Fathers, we have come to vest these unelected, life-tenured judges with final authority to interpret the Constitution as well as all federal law. Yet the justices go to considerable lengths to shroud their deliberations in secrecy, and some of them, notably the current chief justice, engage in a disinformation campaign, announcing that they are disinterested referees, like umpires in baseball, engaged in the pedestrian enterprise of calling legal balls and strikes according to a clear set of rules.

Toobin deserves credit for adding his influential voice to the chorus seeking to debunk this myth. As he observes, the justices are chosen through a political process for political reasons, and the decisions they reach are inevitably influenced by their ideological commitments, personal experiences and personalities.

(In the interest of full disclosure, I should note that my book Closed Chambers also discussed the court’s inner workings. Toobin cites my earlier work as a source, and, in one brief passage, he suggests that we disagree on the subject of how much influence law clerks wield.)

Toobin guides us through the last 15 years of court history by focusing on individual justices, and his portraits are unspoiled by hagiography. Toobin’s Rehnquist has little interest in the reasoning even of his own opinions; the brilliant but pugnacious Antonin Scalia alienates potential allies; Stephen Breyer is an eternal optimist with a sometimes unrealistic belief in his own powers of persuasion; and a pompous Anthony Kennedy (Toobin’s least favorite) revels in his power to shape the law.

Published by: on April 12th, 2009 | Filed under Courts, Procedures & Litigation, Professional & Technical Law

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