Review of The Nine,

by Jeffrey Toobin (Doubleday ,2007)

Globe and Mail, Sept. 29, 2007

"What is the most important law at the Supreme Court?" Justice William J. Brennan, who served on the U.S. Supreme Court from 1956 to 1990, used to ask his law clerks this question on their first day at work.

The new clerks would puzzle over the right answer. Freedom of speech? Equal protection? Separation of powers? Finally, Brennan would say, "Five! The law of five! With five votes, you can do anything around here!"

Jeffrey Toobin - Harvard law graduate, staff writer at The New Yorker, and senior legal analyst at CNN - tells this story, and demonstrates its truth, in his entertaining and tough-minded book, The Nine: Inside the Secret World of the Supreme Court.

John Adams, second president of the United States, said that just and democratic government is of laws, not men. But can it ever be so? Toobin tells us that, when it comes to the U.S. Supreme Court, it's the judges' politics and peculiarities that matter - more than laws, more than history, more than custom, more than anything. That's why the struggle over who is nominated and confirmed to the highest court is politically intense; in the United States, they understand that who is chosen is what really matters.

So, Toobin describes why former attorney-general Alberto Gonzales was not nominated to fill the seat vacated by Sandra Day O'Connor, why White House counsel Harriet Miers was nominated but later withdrew, and how Samuel Alito ended up being the successful candidate. (This despite Alito's appearance before the Senate committee considering his nomination, which showed him, in Toobin's words, to be "charmless, evasive, and unpersuasive.")

It was all about the political beliefs and cultural positioning of the candidates, and the way in which powerful lobby groups reacted to these beliefs, particularly on the dominant issue of abortion.

It's the men and women of the Supreme Court who count, but can we count on them? Much of The Nine is given over to the despicable way the Court resolved 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 justices displayed all of their worst traits - among them, vanity, overconfidence, impatience, arrogance, and simple political partisanship. ... The justices did almost everything wrong. They embarrassed themselves and the Supreme Court."

In Bush v. Gore, the court held by a vote of 5-4 that a ballot recount in certain Florida counties had to be stopped on constitutional grounds (the majority found there was no consistent standard for determining a ballot's legality). This meant that an earlier certification of George W. Bush as winner of Florida's electoral votes stood, and Bush, not Al Gore, became president of the United States (in fairness, Bush might have become president anyway, depending on the outcome of the recount, had it taken place).

Toobin is unsparing in his criticism of the Court's conduct in Bush v. Gore. He writes, "their performance ... amounted to a catalogue of their worst flaws as judges," and he lists those flaws judge by judge. Some of them: William Rehnquist - intellectually lazy and politically partisan; Sandra Day O'Connor - unprincipled and impatient; Antonin Scalia - bullying advocacy in lieu of reasoned analysis, naked bias for the Republican Party; Anthony Kennedy - basic judicial ineptitude compounded by empty rhetoric; Clarence Thomas - sullen withdrawal and reflexive partisanship; Stephen Breyer - favouring muddleheaded compromise. Only Justices John Paul Stevens and David Souter, in Toobin's view, stood apart from the "inept and unsavoury manner that the justices exercised their power." Later, when confronted with criticism of Bush v. Gore, Justice Scalia's terse comment was "get over it."

Toobin writes with authority in The Nine. He has carefully considered the voluminous literature about the court, from The Brethren by Bob Woodward and Scott Armstrong (1979), portraying then chief justice Warren Burger as, in Toobin's words, "a pompous, egomaniacal bumbler," to the titillating contemporary blog, underneath-theirrobes.blogs.com.

But the book's heart comes from his interviews with Supreme Court justices and their law clerks (Toobin could use the information provided in these interviews but was not allowed to quote directly or identify the sources). This is how we find out how the judges do their work, and how they interact - often poorly, or not at all.

One suspects that law clerks were a particularly valuable resource, more likely than judges to be both objective and indiscreet, equally likely to be self-important. The late chief justice Rehnquist, himself a law clerk early in his career, described clerks (before he became a judge) as "scheming and powerful". Toobin's judgment is that "it is easy to overstate the importance of law clerks."

When I was a clerk at the Supreme Court of Canada, many years ago, we boasted about how we wrote judgments, but boasting was as far as it went.

If it is the people who are judges that count more than anything else, particularly on the highest court, then we should know as much as possible about them, both when their appointment is being considered and after they ascend to the bench. How else is the mystery of this arm of government to be dissipated? This is true as much in Canada as in the United States. After all, let me ask you, what do we know about the judges of the Supreme Court of Canada?