Republicans have won five of the past seven presidential elections, a conservative tide that swept through the re-election of George W. Bush in 2004. Yet until recently the Supreme Court remained curiously centrist, with even seemingly conservative nominees yielding to more moderate positions.
In "The Nine: Inside the Secret World of the Supreme Court" (Doubleday, 369 pp., $27.95), CNN senior legal analyst and New Yorker staff writer Jeffrey Toobin provides a history of the modern Supreme Court and the impact of its changing composition. Based on interviews with the justices, the book provides a fascinating inside look at the most secretive branch of government. Toobin writes beautifully, and the book is impossible to put down.
Toobin steps through the confirmation battles of the 1980s and 1990s, from Robert Bork's failed nomination (as a result of his incendiary writings) to the soap-operalike confirmation hearings over Clarence Thomas. It seems almost quaint to remember a time when a nominee could be rejected for being too conservative.
The most arresting portion of the book, however, is its discussion of the court's infamous 5-4 intervention in the 2000 presidential election, in Bush v. Gore. The court's veneer of political independence was stripped away by the ill-concealed enthusiasm with which the court intervened. Justice David Souter, who dissented, was so disgusted that he considered resigning. As Toobin writes, Souter viewed his colleagues' actions as "so transparent, so crudely partisan that Souter thought he might not be able to serve with them any more."
The irony of the intervention is striking. Conservative activists long have insisted on restraint from federal interference with state power. Yet no area is more firmly committed to the states by the Constitution than the "time, place, and manner" of state and federal elections. Every state has a process for recounts, for determining voter intent, and, ultimately, for contesting the outcome. Disputed elections are not uncommon in history; federal intervention is.
Yet that is precisely what the court did in Bush v. Gore, leading to widespread disrespect for the court and what Toobin and others, including many constitutional lawyers, have characterized as its hasty, poorly reasoned opinion. Toobin calls the decision "one of the lowest moments in the court's history."
Washington state could have shown the way. The 2004 gubernatorial election was stunningly close, with Christine Gregoire edging out Dino Rossi by only 129 votes out of 2 million cast. Instead of federal intervention, Rossi's election contest proceeded under state law, with a full trial after which the court definitively rejected Rossi's challenge. (Full disclosure: I represented the Washington state Democrats in that trial).
The Supreme Court's intervention in the 2000 presidential election caused years of widespread questions over the legitimacy of the election . By contrast, after a full hearing on the 2004 gubernatorial election, Gregoire took office without the same sort of pervasive legitimacy questions .
Toobin carefully chronicles the vacancies filled by President Bush in the past two years and the window those nominations have on the ascendant power of "movement conservatives."
From the outset of the Reagan revolution, steadfastly conservative lawyers formed the influential Federalist Society to promote conservative political values in the judiciary, including expansion of executive branch powers, relaxation of the separation between church and state, and intent to overturn the Roe v. Wade abortion decision. After watching "conservative" appointees such as David Souter and Anthony Kennedy turn centrist, these activists made sure they didn't repeat the mistake.
Indeed, the surprise nomination of White House Counsel Harriet Miers failed precisely because she was insufficiently conservative for the conservative elite. With John Roberts (who replaced Chief Justice William Rehnquist), whose name appeared in Federalist Society membership lists, and Samuel Alito (who replaced Justice Sandra Day O'Connor), a longtime Federalist Society member with proven conservative credentials, no such questions exist. And, as Toobin's concluding chapters on the 2006-07 term note, they have delivered with a vengeance.
Over the long run, America gets the Supreme Court it deserves. Having elected conservative administrations for 20 of the past 28 years, the only real surprise is how long it took for the court to definitively turn right.
