Jeffrey Toobin knows that the quaint traditions and magisterial trappings of the United States Supreme Court can fool some into thinking the court stands somehow above the messy contemporary political fray. That’s one misconception that Toobin, the acclaimed journalist, author and legal analyst, is eager to correct.
“Don’t let those black robes fool you,” he told the audience at Elmhurst’s Rudolf G. Schade Lecture in Hammerschmidt Memorial Chapel on September 22. “The Supreme Court is every bit as political and every bit as polarized as the rest of government.”
That’s a theme he explored skillfully in his 2007 book, The Nine: Inside the Secret World of the Supreme Court, which chronicled the growing conservatism of the William Rehnquist-led court in the first years of the new century. Toobin, a staff writer at The New Yorker and legal analyst for CNN, won the J. Anthony Lukas Prize for Nonfiction for The Nine. The book spent more than four months on The New York Times bestseller list.
“There are all kinds of facts I could tell you about the Supreme Court. But the most significant fact is that there are five Republicans and four Democrats on the court,” Toobin said. “It’s very evenly divided.”
In The Nine, Toobin examined the shifting political climate of the court through a series of revealing individual profiles of the justices. One of the most intriguing of the justices, Toobin told the audience, was Sandra Day O’Connor. “She’s an extraordinary figure in American history,” he said. Toobin described O’Connor as increasingly alienated from her own Republican Party’s growing conservatism. When she retired from the court in 2005, citing the need to help care for her ailing husband, the court lost a crucial moderating force, he said.
Her departure, he argues in The Nine, led to the culmination of a conservative counterrevolution on the court that had been brewing for decades. Rising to influence was a new generation of justices, including John Roberts and Samuel Alito, who long had been determined to reverse what they saw as the overreaching liberalism of the Warren Court of the 1960s and 1970s. The shifting politics on the court mirrored trends in a changing Republican Party, Toobin said.
“Compared to the Republican Party of Richard Nixon, the Republican Party of today is virtually unrecognizable,” he said. “There has been an evolution.”
Toobin’s lecture was part of the Democracy Forum, a yearlong series of conversations at Elmhurst focused on democracy and civic engagement.
Toobin might never have undertaken the work that became The Nine if his fledgling efforts as a novelist had produced better results. Determined to write a legal thriller like those by his friend Scott Turow, Toobin several years ago shared three sample chapters with editor Phyllis Grann.
“She told me to stop immediately,” he said in an interview before the lecture, smiling at the memory. “She said the book would be terrible. But she suggested I write a nonfiction book about the Supreme Court instead.” Toobin, who had been writing profiles of some of the justices for The New Yorker, liked the idea. “At least I get credit for having the good sense to take her advice.”
Toobin is now at work on a sequel to The Nine. To be called The Oath, it will take the same approach used to tell the story of the Rehnquist Court in The Nine, this time to tell the story of the Roberts Court. The Oath will be published in 2012. Toobin said his interest in the politics of the court should not be mistaken for a swipe at the court, or at the justices.
“When I say the court is political, that’s not to criticize the justices or their ethics," he said. "It’s just that their job is by definition political. Being the final arbiter of the Constitution is a political act.”
Toobin says the “excessive secrecy” of the court only obscures the true nature of its work.
“It’s my job to demystify the court,” he said. He paused before adding, “But I hope there’s still enough mystery about the court that people will want to read my next book.”