Court of the conservatives

How nine justices shape the Supreme Court and interpret the Constitution.

By NATHANIEL FRENCH, Special to the Times
Published October 7, 2007

President Dwight Eisenhower once referred to his appointment of Earl Warren to the Supreme Court as "the biggest damned-fool mistake I ever made." For 26 years, many conservatives believe, the Warren Court inferred for itself unprecedented power from vague clauses of the Constitution, inventing a right to privacy, desegregating the schools and setting the stage for Roe vs. Wade.

Jeffrey Toobin's The Nine is the story of the conservative movement's fight to correct Eisenhower's "mistake" and produce a change in our laws just as revolutionary.

When the Federalist Society appeared on law school campuses in the 1980s, it represented an obscure minority of conservative intellectuals. They were dedicated to reversing what they considered the excesses of the Warren Court, excesses that were popular in left-leaning academia. Two faculty advisers, Robert Bork and Antonin Scalia, began talking about "original intent" and a "Constitution in exile."

Over the next two decades, the conservative movement made tremendous gains. Scalia was appointed to the court, and William Rehnquist became its chief justice. After a brutal confirmation process, Clarence Thomas joined them on the right.

But conservatives were disappointed by Anthony Kennedy and David Souter, who turned out to be more liberal than the Republicans who appointed them. And while Rehnquist was chief justice, it was Sandra Day O'Connor's court.

"No other woman in United States history," Toobin writes, "made such an enormous impact on their country." On a host of issues, O'Connor's was the decisive vote.

As time went on, she became more and more disillusioned with her Republican Party and, in her later years on the court, with President George W. Bush. On abortion, civil liberties, presidential authority and affirmative action, O'Connor disappointed her conservative backers. The Rehnquist court that should have brought about a conservative revolution was tempered by O'Connor's caution.

When O'Connor announced her resignation two years ago, conservatives were taking no chances. The movement had been instrumental in both Bush campaigns, and in return it expected an appointee who would match its judicial and political philosophy.

When Rehnquist died shortly after O'Connor's resignation, Bush was presented with two vacancies. The Nine concludes with John Roberts and Samuel Alito, both reliable conservatives, as the court's newest members.

The Nine focuses on the justices' personalities and how each individual shapes the court. O'Connor is portrayed as a fiery independent who likes order, categorizing people and issues as either attractive or unattractive. Souter has no cell phone, e-mail or even answering machine. And there's the flamboyant Kennedy, full of "empty rhetoric."

Rehnquist, on first meeting President Nixon, wore, in John Dean's words, "a pink shirt that clashed with an awful psychedelic necktie, and Hush Puppies." When the justices ate lunch together, Souter consumed an entire apple, core and all, and was mystified by the Diet Coke preferred by some of his colleagues.

Toobin gives us a portrait, sometimes inspiring and sometimes unflattering, of the men and women who hand down our most important legal decisions.

The author is hardly sympathetic to the conservatives' cause. "It was not until the 1950s and 1960s, and the tenure of Chief Justice Earl Warren, that the court consistently asserted itself as an independent and aggressive guarantor of constitutional rights," he writes, ignoring the controversy in the legal community as to whether the Warren court's rulings were based in the Constitution at all.

But Toobin is not partisan; on decisions he finds incorrect, such as Bush vs. Gore, he takes the liberal justices to task along with the conservatives, and he portrays Rehnquist as a well-respected administrator. Rather, Toobin has strong opinions about the court, and he is hostile toward those who disagree, however legitimately.

Supreme Court appointments are some of the most important, lasting decisions a president makes. Recent rulings on late-term abortion, the lawfulness of indefinitely holding an enemy combatant without charge or trial, and school desegregation remind us of the stakes.

As Toobin wrote in the New Yorker recently, "The court, no less than the presidency, will be on the ballot next November, and a wise electorate will vote accordingly."

Nathaniel French is a student at Macalester College.

The Nine

By Jeffrey Toobin

Doubleday Publishing, 336 pages, $27.95

The book

The Nine

By Jeffrey Toobin

Doubleday Publishing, 336 pages, $27.95

[Last modified October 6, 2007, 21:02:50]