The Nine by Jeffrey Toobin
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Many of the opinions the Supreme Court issues are dry and technical, deciding obscure points in the law; simple cases, after all, can be decided by the lower courts according to past decisions, and the justices of the Supreme Court choose what cases they will take. Then there are the cases that draw the eyes of the country, such as Bush v Gore and Citizens United vs Federal Election Commission (usually known simply as Citizens United). When the court agreed to hear lawsuits challenging the constitutionality of the Affordable Care Act, it seemed as if everyone in the country had an opinion. In the end, though, it comes down to the opinions of nine justices.
How do they decide? In theory, a judge should only interpret the law, and rule as the law is set out – but even the justices of the Supreme Court don’t agree as to how the Constitution should be interpreted. For some, everything should be decided by considering what was meant by the founders as they wrote the document; anything the founders wouldn’t have had an opinion on is beyond the scope of the Constitution. Others believe that we should follow what the Constitution literally says, rather than trying to read the minds of the founders. Some, like Stephen Breyer, are strong advocates of state decisis – that the court should tend to follow their previous opinions. Others, like Clarence Thomas, prefer to ignore previous decisions they feel were wrongly decided. Many of the controversial cases heard by the Roberts court have been decided on a 5-4 vote; the final decision on whether a law should stand often comes down to the judicial philosophy of the swing voter (with Sandra O’Conner gone, this is usually Anthony Kennedy).
So what leads a justice to these decisions? In interviews with the justices and more than 75 of their clerks, Jeffrey Toobin learns about their personalities, their relationships with each other, and how they approach the work of the court. As in Toobin’s later book The Oath, this is often illustrated through their approach to various cases – Bush v Gore, Planned Parenthood v Casey, Ledbetter v Goodyear. While Toobin sometimes interjects his opinion – in particular, he obviously feels that the justices embarrassed themselves in Bush v Gore – he allows each of the justices to express themselves in their own words, and indeed has admiring words for each of them. (Published in 2007, the book covers the eleven justices who served under Bush.)
Since getting this book, I’ve barely been able to put it down. Recommended for anyone interested in the workings of the court.