The Nine: Inside the Secret World of the Supreme Court

The chapter describes the process of selecting John Roberts for the Supreme Court during the summer and early fall of 2005. Toobin starts off with a scene at a summer party thrown by Theodore Olsen, the solicitor general during Bush’s first term, because one, it was a moment of conservative ascendance that Olsen had worked hard for and two, many of the guests were under consideration as the nominee. Toobin goes through the list, briefly describing their backgrounds and chances. They included Harvie Wilkinson, a former judge with solid experience and a courtliness that would serve him well; Michael Luttig, another judge with a sharp intellect and the necessary conservative credentials; and John Roberts, low-key and amiable.

The White House had prepared for the process that summer, anticipating that Rehnquist would resign, given his illness. He did not, but O’Connor provided an open seat. The main candidates met with Bush in mid-July; the conversations were more informal than detailed, with specific cases and judicial philosophy rarely brought up, as the president liked to rely more on intuition. Bush’s choice came down to Roberts and Luttig, and Bush had a good rapport with Roberts when they met.

However, the White House counsel, Harriet Miers, had reservations about Roberts’s conservative credentials. While Luttig’s stance on the issues was well known, because Roberts had spent the 1990s in private practice, there was less of a paper trail from which to determine his ideology. The conservative wing of the party had made clear that they did not want to take chances since justices like Kennedy and Souter had often not lived up to their supposedly conservative credentials. Just then, as it happened, the DC Circuit Court, on which Roberts served, upheld the administration’s position in a case involving Guantanamo Bay. Based on the decision in Hamdi, the administration had created military tribunals to provide prisoners with some form of due process. When Roberts joined his colleagues in affirming the legality of these tribunals, he erased any doubts about being a bona fide conservative, and Bush formally nominated him on July 19.

The situation changed, however, at the end of the summer. Chief Justice Rehnquist died over Labor Day Weekend, leaving another seat vacant on the Court. At the end of August, Hurricane Katrina had devastated New Orleans and surrounding areas, and the Bush administration had badly mishandled its response. That and other events over the summer regarding the war in Iraq had led to bad press and declining poll ratings, so the president was in need of some good news. Because Roberts had been so well received, and perhaps hoping to deflect attention from Katrina, Bush announced only two days after Rehnquist’s death that he was changing Roberts’s nomination to fill the chief justice’s seat rather than O’Connor’s. After Roberts was confirmed later that month, Bush now had to choose another nominee. He was leaning toward selecting a woman, but several whom he had nominated early for lower courts were too controversial. The Democratic minority leader Harry Reid had mentioned to Bush how impressed he had been with Harriet Miers, the White House counsel, and Bush now began to consider her. 

Toobin describes the nomination and subsequent withdrawal of Harriet Miers in this chapter. Miers had been Bush’s personal attorney in Texas, and he had brought her to the White House with him. When first approached by Bush’s chief of staff about the open seat on the Court, Miers said she did not want to be considered. She was then given the job of vetting possible nominees, which she did admirably and which brought her to the attention of Harry Reid. Following his comment to Bush, noted in the previous chapter, the president had his chief of staff again inquire into her interest in the nomination, and “this time she didn’t rule out” (285) the idea.

In late September, Bush himself asked her if she wanted to be a candidate and she said she did. From that point, the search for a nominee essentially stalled, focused on those already under consideration. Because the process was undertaken with secrecy, at Bush’s request, only a few people knew that Miers was being considered. On October 2, Bush formally asked Miers to be the nominee and she accepted.

Early the next morning, he made the public announcement. There was immediate pushback from conservative groups because, as a corporate lawyer who had never served as a judge, there was no record of her position on key issues. They demanded proof that it was certain she was on their side. The administration’s main supporter enlisted to vouch for Miers was Nathan Hecht, a justice on the Texas Supreme Court who had dated Miers in the past (though now identified as just a close friend) and who introduced her to evangelical Christianity. Their relationship made this awkward, as if the Bush team could find only a former boyfriend to vouch for their nominee.

Although the process moved ahead, with Miers meeting with senators in advance of the Judiciary Committee hearing, the attacks on her from the right continued. It was ironic, Toobin writes, that “one of the most fervent conservatives on the staff” was being labeled a “closet liberal” (294) by the right. Bush tried to reassure them—essentially saying, “trust me on this”—but they were not mollified. The events of 2005, notably the war in Iraq and Hurricane Katrina, had weakened him even in his own party, and he did not have the political capital that he perhaps thought he did. Ultimately, though Toobin argues that Miers probably had the votes in the Senate to be confirmed, she withdrew her nomination at the end of October. Then, loyal as always, she went back to work helping Bush find a replacement. 

In the wake of Miers’s withdrawal, Bush nominated Samuel Alito for O’Connor’s seat on the Court. Oddly, Alito was Miers’s first choice earlier when Roberts was under consideration and she wondered whether he was conservative enough. Now, after being regarding insufficiently conservative herself, Alito got the nod after all.

O’Connor was appalled because the man chosen to replace her was one she had disagreed so strongly with in the Casey case that came before the Court in 1992. As noted in an earlier chapter, O’Connor had objected to the provision in the Pennsylvania law that required wives to consult with their husbands before seeking an abortion. Alito was on the circuit court that had heard the case earlier, and he was the only one of three judges to uphold the notion of spousal consent. O’Connor took particular issue with Alito’s opinion, writing that it was “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry” (300).

Toobin then describes how the last year of the Rehnquist Court had produced a final surge of liberal outcomes before a likely turn rightward with Roberts as the new chief justice. Cases concerning federalism, the death penalty, and affirmative action, for example, were decided against the conservative positions. At the same time, O’Connor’s departure represented the loss of a key swing vote, which was bound to be felt in the future. O’Connor and Breyer had grown close over the years, and both served as swing votes at various times; without O’Connor’s vote, Breyer’s views might be in the minority more often.

Toobin writes that two cases in 2005 involving the Ten Commandments exhibited in public places showed how much Breyer had to lose from O’Connor’s leaving. In one case, they were posted in two courthouses in Kentucky; in the other, they were part of a monument in a park near the Texas state capitol. The other justices were even split between upholding both or rejecting both. Breyer, however, saw a difference in them and upheld the Commandments’ display in Texas but rejected it in Kentucky. The former had existed for 40 years without public outcry, had been erected by a private organization, and stood among many other markers and monuments. The latter had been put up about five years earlier by public officials (in one case accompanied by a minister), and drew criticism from the start. It was this kind of “middle road” interpretation, which O’Connor often preferred, that worked well here and in other cases that year.

However, a case at the end of the term resulted in an unexpectedly strong public backlash. In Kelo v. City of New London, a Connecticut city had taken over private land by eminent domain in order for it to be developed commercially to support a Pfizer research facility. One of the homeowners whose house was confiscated sued, citing the Fifth Amendment. The argument was that the amendment referred to “public use” (304) for seizing private property, and this would be for private use. The justices decided 5 to 4 in favor of the city, however, stating that it was up to each city to determine whether such an urban redevelopment project constituted “public use.” Kelo became a cause célèbre among conservatives, who erupted over what they saw as an overreaching of government authority. To prove the point, one activist even proposed that David Souter’s hometown in New Hampshire seize his home and property to turn it into a hotel on the grounds of serving the public interest through increased revenue.

Finally, Toobin describes the beginning of Roberts’s tenure as chief justice. Compared to Rehnquist, he sought to narrow the issue in each case enough to enable a unanimous decision whenever possible. He also skillfully crafted opinions to diffuse potentially explosive issues. For example, in an abortion case that involved a New Hampshire law requiring minors to inform their parents before having an abortion, he returned the case to a lower court on procedural grounds. The court had struck down the entire state law, he argued, when it could have addressed only the precise and limited issue at hand. Through further review, he hoped the lower court would be able to deal with the issue, thus avoiding embroiling the Supreme Court in the larger issue of Roe and its precedent. Fittingly, O’Connor wrote the opinion—her last before retiring, on an issue over which she had held so much sway.

This chapter is about the Senate confirmation hearings for Samuel Alito held in early 2006. The press had dug up something from the National Archives that Bush’s vetting team had overlooked: a letter Alito had written when applying to a job in the Reagan administration in 1985. In it, he stated, “I am and always have been a conservative” (311). He went on to explain that his interest in the law had been sparked by what he saw as incorrect decisions of the (liberal) Warren Court, which revealed his position on a number of issues central to culture wars. Democrats were dismayed by this but lacked the votes to prevent his confirmation. The only possibility was to use a filibuster, but this was unlikely, again, for lack of votes.

Before the Senate Judiciary Committee, Alito downplayed the 1985 letter as simply what was necessary when applying for a job. As a judge, he claimed, he put aside any personal beliefs to apply the law impartially. He stated that foreign law should not be considered when interpreting the Constitution, placating conservatives. Toobin writes that he was wooden and evasive, in stark contrast to Roberts’s charm in his confirmation hearing. However, as “[b]ad as Alito’s performance was, that of his Democratic inquisitors was worse” (315). Senators Biden and Kennedy, according to Toobin, were by turns pontificating and petty. Ultimately, votes in both the committee and the full Senate were enough for confirmation, and the Democrats did not attempt a filibuster.

Toobin next explains the status of Justice Scalia given the dynamics of the changed court. If anyone should have benefited, it should have been Scalia, now that two more conservative votes had been added. However, after 20 years on the bench, he had grown tired and bored with the work. Despite his outsized personality, he had little to show in terms of a legacy. He had a small number of majority opinions and very little influence on his colleagues. Early on, he had alienated O’Connor, and he did not have the political skills to persuade others to join him in most cases. In public appearances, he eagerly waded into arguments with opponents, and such “confrontations did not always bring out the best in the justice” (318).

In this first term for Roberts and Alito, there was only one significant case. It involved the enemy combatants at Guantanamo Bay, an area that had resulted in defeats for the Bush administration in 2004. In response to the previous cases, military tribunals had been set up to provide the prisoners with some form of due process, and the case of Hamdan v. Rumsfeld now challenged this system. Arguing the case for the prisoner was Neal Katyal, a young law professor who had never before had a case at the Supreme Court. The Bush administration was represented by Solicitor General Paul Clement, who was making his 34th appearance at the Court.

Clement argued that Congress had in effect suspended the writ of habeas corpus (the requirement that prisoners be brought before a court) without explicitly stating so, eliciting a sharp response from Souter. This was a fundamental right that couldn’t so easily be done away with, argued Souter. In this case, though, Kennedy would be the deciding vote, and his interest in international law came to the fore in his questions about the Geneva Conventions. In the end, he voted with the majority in another defeat for the Bush administration’s actions in Guantanamo. Both the Constitution and the Geneva Conventions had to be followed. Breyer wrote a concurring opinion that drew upon the words of his friend O’Connor in the earlier case, Hamdi, stating the executive branch had not been given a “blank check” (318) to do as it wished without consulting Congress. 

This final chapter details the Court’s 2006-2007 term (the last before the book was published in 2007). It reviews the major cases and the significant ideological shift based on the Court’s new composition, making it a “dramatically more conservative institution” (324). Toobin writes that there was some continuity provided by Chief Justice Roberts, who provided a smooth transition from Rehnquist, but the decisions in the cases started to shift away from old patterns.

Two cases involving school desegregation illustrated this. They concerned the cities of Louisville and Seattle, which had taken steps to ensure that their schools had a mixed racial composition. On the face of it, they appeared to be following the standard set in Grutter, which allowed race to be considered among other factors for admission. Roberts wrote the decision for the majority, which came at the end of the term. He wrote that race should not be a factor in school admissions, just as it should not have been in the seminal desegregation case Brown v. Board of Education. While acknowledging that the circumstances were very different, he found that race should not be a factor in either city, even though the intention was to help African Americans rather than hurt them.

Justice Kennedy now provided the key swing vote that O’Connor once had, and Toobin notes that this was evident on the issue of abortion. In 2000, O’Connor had voted with the majority in Stenberg v. Carhart to strike down a Nebraska law banning what some called “partial-birth abortion” because it had no exception for the health of the mother. Congress had later passed a federal law that was similar, and now that conservatives controlled the Court, this was put to the test. Based on Stenberg, lower courts had found the law unconstitutional. Alito and Roberts now joined Thomas and Scalia as the consistently conservative votes, so the deciding vote was Kennedy’s. He had voted to uphold the Nebraska law, and he did the same with this new federal law. The ruling in Gonzales v. Carhart did not explicitly overturn Stenberg, though Toobin argues that it did in effect.

Toobin writes that Justice Ginsburg seemed to notice the ideological shift earlier than other justices. In her dissent of the abortion case above, she noted that the federal law was the same as the Nebraska law had been—the only change was who now sat on the bench. Then, in a case involving equal pay for women, the Court found that women suing for pay equal to men could only be compensated for the six-month period within which they were required to file suit. In the past, courts had always interpreted the statue to mean that women should be paid for the entire time they were discriminated against. Ginsburg wrote an uncharacteristically fiery dissent to denounce the decision and called on Congress to pass legislation to make clear its intentions.

The Court in the 2006-2007 term had clearly moved to the right, not only in the above cases involving racial desegregation, abortion, and sex discrimination but also in decisions involving campaign financing, church-state separation, and free speech. The chapter closes with a description of the last day of the term in June and the final decisions handed down that day. Toobin describes each member of the Court and how the events of the past year had affected them. Overall, the conservatives were more satisfied while the liberals were unhappy. Even Justice Breyer had lost his usual optimistic outlook. After Roberts read the decision for the two school desegregation cases (described above), Breyer read his unusually long dissent, worried about what the ruling meant for the future of affirmative action in all areas. He caught his colleagues’ attention when he ad-libbed: “It is not often in law that so few have so quickly changed so much” (336). When Breyer was done, so was the Court’s business, and Roberts called a recess until the new term in October.

In the short Epilogue, Toobin places the moment (2007) in the larger sweep of the Court’s history. As an institution, it has always changed with the tenor and priorities of the country. He argues that, despite what justices often say, they are deeply political. All are well qualified and steeped in the law; what sets them apart are their interpretations of it, which rest on their ideology. In this, Toobin writes, the Court reflects the American people, and thus, “[w]e can expect nothing more, and nothing less, than the Court we deserve” (340).