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Published: Saturday, 4/19/2008

'The Nine': Glimpses of the Supreme Court

BY JACK LESSENBERRY

THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT. By Jeffrey Toobin. Doubleday, $27.95

Normally one reviews books within weeks after publication, and Jeffrey Toobin's blockbuster The Nine already has been on bestseller lists for several months. But this mesmerizing book is worth making an exception for - and very much worth buying and reading.

For one thing, The Nine is probably the best and certainly the most intimate account of the nation's highest court ever written. (The only other comparable book, Bob Woodward's The Brethren, is less detailed and is now nearly 30 years old.)

And what the high court does and how the high court changes - especially after this year's presidential election - will have a deep and lasting influence on life in the United States for years to come.

The Supreme Court is, in fact, the most mysterious of our three branches of government, and in some ways the most important.

Laws passed by Congress can be vetoed. Presidential initiatives can be turned down or ignored. Vetoes can be overridden, and in any event, the entire thrust and direction of presidential policy can - and usually does - change dramatically every few years.

Yet when the nine justices decide something, it stays decided for decades, if not forever. And though their decisions can be changed by a constitutional amendment, the chances of that are about the same as a new glacier forming - and takes about as long.

Indeed, most of the time, the work of the Supreme Court (as in Plessy vs. Ferguson, 1896) is only overruled, if at all, by the Supreme Court (as in Brown vs. Board of Education, 1954).

We've always known that - but as a nation, we've been much more acutely aware of the court's power since Brown - and especially since Roe vs. Wade, the landmark 1973 decision making abortion a constitutional right, a decision that stands with Dred Scott as one of the court's two most controversial decisions in history.

That's one of the reasons The Nine is such an important and timely book. One week from today, John Paul Stevens, currently the longest-serving associate justice, turns 88.

He has shown no inclination to retire. Yet it is hard to believe that he can last another four years.

Though appointed by Republican Gerald Ford, Stevens now is perhaps the court's most reliable liberal voice and vote. Many observers think that abortion rights might well be overturned entirely were he to be replaced by a more conservative justice. Almost certainly, a President McCain would name an anti-abortion justice were Stevens to retire or die.

Almost certainly, either a President Clinton or a President Obama would name someone pro-choice - and might easily by 2013 have a second or third chance to help shape the court.

Those are all reasons why this book is important. Yet it is not a heavy treatise on judicial or legal philosophy at all, but a superbly written and chatty account of who these justices are, and how they do their jobs. Author Jeffrey Toobin is familiar to many news junkies as CNN's omnipresent legal and political analyst. But he is also a lawyer and former federal prosecutor himself, and the author of best-sellers about the O.J. Simpson case, the disputed election of 2000, and the so-called "vast conspiracy" against the Clintons.

Clearly, his legal expertise and experience covering the court won him the confidence of at least some of these justices. Though he doesn't betray their confidences, it is clear that Sandra Day O'Connor was a major source for this book, as was Stephen Breyer.

Indeed, perhaps the most substantial criticism about this book is that its lionization of O'Connor seems a little out of proportion.

True, she was capable of growth, and clearly seems to have evolved far beyond the conventional suburban Phoenix Republican she once was. And Toobin does give her deserved lumps for her complicity in the legally outrageous decision in Bush vs. Gore.

Yet apart from that, one might get the impression at times that she was on a plane with Oliver Wendell Holmes or Louis Brandeis.

What one does get from The Nine is a very real sense of who these very different people are, plus some gossipy details. (Kennedy loves himself; the abnormally silent and legally underachieving Clarence Thomas has become spectacularly fat since being confirmed) Toobin seamlessly weaves a narrative of their personalities into the fascinating history of how recent presidents have selected the justices - and how some of the great decisions of our era, notably Roe vs. Wade, were made.

We also get a glimpse into the court's future, which is likely to be unlike its past. President Eisenhower is said to have been totally startled at how liberal Earl Warren, the man he made chief justice, turned out to be. Future surprises of that nature, Toobin argues persuasively, are unlikely. "One factor - and one factor only - will determine the future of the Supreme Court: Presidential elections."

Not that he thinks that is a bad thing. "The Court is a product of a democracy, and represents, with sometimes chilling precision, the best and worst of the people," he says, concluding that we as a nation are bound to get the Supreme Court we deserve.

You can't help thinking that sometimes, we may need a little better than that.

Jack Lessenberry is The Blade's ombudsman.

Contact him at: omblade.aol.com.



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