The Nine: Inside the Secret World of the Supreme Court

“Through the tense standoff of the Burger and Rehnquist years, a powerful conservative rebellion against the Court was building. It has been, in many respects, a remarkable ideological offensive, nurtured at various times in such locales as elite law schools, evangelical churches, and, most importantly and most recently, the White House. Its agenda has remained largely the same over the decades. Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere.” 

This passage sums up the overall theme of the book—a monumental shift from liberal to conservative in the field of law and at the Supreme Court. It was a concerted effort by conservatives and reflected the culture wars taking place in the country during this time period. 

“She had an uncanny ear for American public opinion, and she kept her rulings closely tethered to what most people wanted or at least would accept. No one ever pursued centrism and moderation, those passionless creeds, with greater passion than O’Connor. No justice ever succeeded more in putting her stamp on the law of a generation.” 

This characterizes Justice O’Connor’s power on the Court and her place in history. She was one of—if not the—most powerful women in United States history and was a force for the middle ground at a time when the country was falling ever more into extremes of left and right.

“There were two kinds of cases before the Supreme Court. There were abortion cases—and there were all the others.” 

This signifies the central place abortion rights had come to occupy after Roe v. Wadelegalized it in 1973. The conservatives’ main goal was to overturn Roe, and after several justices appointed by Republican presidents did not turn out to be as conservative as expected, this goal became a litmus test for future nominees to the Court. 

“When it came to abortion rights, even at the start of the 1990s, the Rehnquist Court was in fact the O’Connor Court.” 

This quote once again shows the central place of Justice O’Connor on the Court. She dominated the issue of abortion with her swing vote, and with the decision in Casey in 1992, her position on the issue had won out even though virtually none of the other justices agreed with it.

“But by the time of Casey it was clear that Scalia’s zest, passion, and intelligence did not translate into the most important thing one member of a court of nine could have—influence.” 

This passage sums up Justice Scalia’s ultimate legacy on the Court. Although he was a larger-than-life figure who was often at the center of battles on the bench, he rarely had the skills (or temperament) to build coalitions and muster colleagues to his view. Many times, this resulted in his strong words coming in the form of a dissent.

“The Court was usually pretty savvy about how its decisions would play out in the real world. But Stevens, who was nearing his eightieth birthday cloistered from the hubbub of life in the age of cable news, had not anticipated that Jones’s lawsuit would turn into a magnet for the president’s political enemies—a result that may have pleased some of the other justices.” 

The Court allowed the Paula Jones case to proceed, falsely thinking would hardly take up much of President Clinton’s time. In fact, it consumed most of two years in his second term as conservative enemies of the president piled on, leading to his impeachment by the House and acquittal by the Senate. It was a rare instance of the Court failing to correctly take the pulse of society. 

“The case opened a window on what it meant to be a ‘conservative’ on the Supreme Court—the Rehnquist mode or the Scalia and Thomas approach. To the surprise of many people who followed his career, Rehnquist not only joined the majority in the 7–2 decision upholding Miranda but wrote the opinion himself. Rehnquist’s words in Dickerson v. United States were characteristically terse, and somewhat grudging, with little of his dreaded ‘reasoning,’ but his thinking was plain: ‘Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,’ the chief justice wrote. ‘Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.’ Scalia, joined by Thomas, wrote one of his classic fire-breathing dissents—and illustrated what a conservative Court, untethered to the rule of precedent, would do to landmarks like Miranda (and Roe v. Wade).”

This passage illustrates the two strands of conservatism on the Court during the tenure of Rehnquist as chief justice. Scalia and Thomas were the only two far to the right on the political spectrum, whereas Rehnquist, Kennedy, and O’Connor were milder conservatives who sometimes sided with the liberal justices. 

“It was clear by this point that Scalia didn’t need better arguments to win over his colleagues; what he needed was different colleagues.” 

Not only was this clear to Scalia, it was clear to the Republican Party and conservatives in influential organizations; thus, changing the composition of the Court became a prime target after 1999. 

“Sekulow was disappointed, of course, but the defeat in the Santa Fe case, combined with his earlier victories before the Court, actually wound up being a model for how the Supreme Court ought to work. […] which made it a classic expression of the style of the Rehnquist Nine at this moment in its history. This was not a Court for the true believers—for Scalia, Thomas, and even Rehnquist himself—but rather a Court for the middle-of-the-road majority.” 

The context of this quotation is the 1999-2000 term, in which the Court shifted rather sharply left after a steady move to the right for most of the previous decade. Toobin’s argument is that this was actually the Court at its best: finding a middle ground that reflected the median thought in society. Yet it was not enough for conservatives, as the previous quotation indicates, and they worked to ensure the right would dominate the bench more thoroughly. 

“Such was the justices’ isolation from one another that the best advocacy could be done only in oral argument, when they were a captive audience for one another. For this reason, Breyer planned his questions with care, not because he was especially interested in the answers but because his questions were a way of making his case to his colleagues.” 

This often happened during oral argument. It was a time and place for the justices to publicly talk to one another, making their opinions known and bouncing ideas off each other through questions to the two lawyers arguing the case. 

“To be sure, the Court did not suddenly turn into a reincarnation of the liberal Warren Court. The justices had parried conservative legal offensives—on church-state, federalism, and abortion—rather than forging a liberal direction of their own. They had protected the status quo, which was what the country wanted, but that left the conservative movement seething. Even with seven Republican appointees on the Court, and eleven of the last thirteen appointments made by Republican presidents, the justices had not made the sharp turn to the right that conservatives had been seeking for a generation. As the decisions in that year showed, the Court would be sticking to its moderate course.” 

This quotation refers to the 1999-2000 term, which brought an end to the success conservatives had for most of the 1990s. It precipitated a push for greater control of the Court through new members whose conservative credentials were beyond doubt. Thus, the first step was gaining control of the White House. 

“Random chance—a freakishly close vote in the single decisive state—gave the Supreme Court the chance to resolve the 2000 presidential election. The character of the justices themselves turned that opportunity into one of the lowest moments in the Court’s history. The struggle following the election of 2000 took thirty-six days, and the Court was directly involved for twenty-one of them. Yet over this brief period, the justices displayed all of their worst traits—among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court.”

In Toobin’s opinion, the justices’ involvement in the 2000 presidential election was a stain on the Supreme Court’s legacy, as this passage makes clear. 

“Elections had always been run by states, not the federal courts, and Florida was merely doing what states had done for generations. They were following their own law on recounts. Counting votes had never before been seen as a violation of the U.S. Constitution. Moreover, as a practical matter, the situation in Florida was changing day to day; by the time the justices in Washington heard arguments in this case, the facts on the ground in Florida might be very different—which was why the Supreme Court rarely took a case until it was concluded in all respects.” 

This quotation presents more details about just why the Court was wrong to interfere in the 2000 presidential election. The justices issued a stay to halt all recounts, a peculiar action, noted Justice Stevens, since counting votes thus amounted to “irreparable harm” (163) according to the standards for issuing a stay. 

“Kennedy responded by adding what became the most notorious sentence in the opinion—indeed, a single sentence that summed up so much of what was wrong with what the Court did. ‘Our consideration is limited to the present circumstances,’ Kennedy wrote, ‘for the problem of equal protection in election processes generally presents many complexities.’” 

As Toobin writes just after this passage: “The business of the Supreme Court is to take cases that establish principles of general application”(173). In Bush v. Gore, however, no general principle was involved, and Kennedy’s sentence made it clear that the decision applied to one election in one state. 

“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” 

This quotation comes from Justice Stevens’s dissenting opinion on Bush v. Gore, which Toobin points to as clear and levelheaded in the wake of the Court’s decision. The main point here is that when partisanship emerges on the Court, its fundamental strength is undermined—the faith of the American people. This speaks to the symbol of the steps before the Supreme Court building, representing the notion that the Court is above politics. 

“Of the five justices in the majority, Kennedy had the hardest time with the aftermath of Bush v. Gore. He had spent most of his adult life as a judge, and he had a special reverence for the profession, ‘the guild of judges,’ as he sometimes called it. There would be, it turned out, two Anthony Kennedys on the Supreme Court—the one before December 12, 2000, and the one after—and his transformation was surely one of the most unexpected legacies of this epochal case.

“The Justice Kennedy of the post–Bush v. Gore era was shaped by one influence in particular—his exposure to foreign law and foreign judges. After 2000, in part to escape the political atmosphere in Washington, Kennedy deepened his commitment to the broader world, and his journeys changed him. Given Kennedy’s pivotal role, the Court and the nation would never be the same. The paradox of Bush v. Gore is that the justices’ gift of the presidency to a conservative sent the Court in its most liberal direction in years.” 

This passage describes Justice Kennedy’s transformation after the 2000 presidential election. Ironically, after the Court’s ruling that gave the election to Bush, a conservative Republican, the Court itself shifted left. This was largely due to Kennedy, who had always been a swing vote (along with O’Connor). From his international influences, he became more liberal. 

“At first it was the legacy of Bush v. Gore that turned O’Connor and Kennedy toward their more liberal colleagues. Later, it was the Bush administration itself.” 

Following from the previous quotation, this indicates that Bush himself alienated O’Connor and Kennedy. Although O’Connor especially had wanted Bush to become president, she was disappointed in his presidency, particularly as the security measures put in place after the September 11 attacks impinged upon judicial independence. 

“The expected replacement of Rehnquist would have been momentous—there had, after all, been forty-three presidents but only sixteen chief justices. But a Bush appointee in that seat would not change the balance of power on the Court in any dramatic way. The loss of O’Connor, in contrast, would. The conservative counterrevolution, thwarted for so long, often by O’Connor herself, might finally have a chance to succeed.” 

This sums up the position of conservatives in 2005. After a string of successes in the 1980s and 1990s, their revolution had faltered starting in 1999 and continuing until O’Connor’s resignation and Rehnquist’s death, both in 2005. Because of O’Connor’s unique status on the Court as a swing vote, replacing her seat with a staunch conservative would have the greater effect. 

“Fairly or not, accurately or not, the decisions branded Gonzales as unreliable on abortion, and that was enough for conservatives to veto him as a nominee to the Supreme Court. Such was the power of movement conservatives—and such was the importance of abortion to them—that Bush had no choice but to eliminate his good friend from consideration.” 

In the above quotation, the “decisions” refer to the ruling of the Texas Supreme Court when Alberto Gonzales was a member. After Bush was elected and Gonzales became White House Counsel, and then Attorney General, Bush wanted to nominate him to the Supreme Court. The decision was taken out of his hands and nixed by a drumbeat of opposition from right-wing groups, showing how powerful they had become in the Republican Party. 

“In the mainstream news media, which were still largely working off an obsolete model of the confirmation process, these memos were generally treated as problems for Roberts’s nomination (although manageable ones, to be sure). The governing idea behind the news coverage was that Roberts, like Bork, risked defeat if he was seen as too conservative. But the truth was precisely the reverse—that the only threat to a Bush nominee to the Supreme Court was if he or she was seen as not conservative enough.” 

This again points to the shift in the Republican Party, as staunch conservatives dominated in the early 2000s. To them, in essence, a candidate for the Court could not be too conservative, though that was still the conventional wisdom for many observers. 

“The nomination of Miers reflected Bush’s arrogance, his sense that vouching for his personal lawyer would be all that was necessary to bring the Senate along. The president had miscalculated his own remaining clout—and the importance of the Supreme Court to his more ardent supporters. On this issue above all, a ‘Trust me’ from George W. Bush would simply not be enough.” 

Harriet Miers, the president’s personal attorney who worked in the White House, was also considered for the Supreme Court but rejected by movement conservatives. Bush had not realized how much the events of 2005 (Hurricane Katrina, the war in Iraq going badly) had weakened him within his own party.

“But the good cheer—and the promises of incremental change—masked the truth about the Roberts Court on the only thing that mattered, the substance of its decisions. George W. Bush’s second term has been marked by a series of political calamities for the president and his party—on the Iraq war, Hurricane Katrina, Social Security and immigration reform, and the midterm elections, to name a few. But one major and enduring project went according to plan: the transformation of the Supreme Court. Quickly, almost instantly by the usual stately pace of the justices, the Court in 2006 and 2007 became a dramatically more conservative institution.” 

With the addition of Justices Roberts and Alito to the Supreme Court, the conservative revolution was now complete and became apparent almost immediately with decisions in the 2006-2007 term. 

“Above all, Breyer was taking a stand against the agenda that was born in the Reagan years, nurtured by the Federalist Society, championed by the right wing of the Republican Party, and propelled by the nominations of Roberts and Alito. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade and allow states to ban abortion. As Breyer knew better than anyone, the two new justices, plus Scalia, Thomas, and (usually) Kennedy, put all those goals tantalizingly within reach.” 

This quotation comes from a description of the last day the Court was in session in June 2007. Justice Breyer spoke for an unusually long time (27 minutes) in reading his dissent to two cases involving school desegregation. He was really pointing out the rightward shift the Court had taken that year and noting that conservatives were now poised to control decisions on key issues.