The Nine [0]
Title Page
Dedication
Prologue: The Steps
PART ONE
1. The Federalist War of Ideas
2. Good versus Evil
3. Questions Presented
4. Collision Course
5. Big Heart
6. Exiles Return?
7. What Shall Be Orthodox
8. Writing Separately
9. Cards to the Left
10. The Year of the Rout
PART TWO
11. To the Brink
12. Over the Brink
13. Perfectly Clear
PART THREE
14. “A Particular Sexual Act”
Photo Insert
15. “A Law-Profession Culture”
16. Before Speaking, Saying Something
17. The Green Brief
18. “Our Executive Doesn’t”
19. “A Great Privilege, Indeed”
PART FOUR
20. “ ‘G’ Is for God”
21. Retiring the Trophy
22. “I Know Her Heart”
23. Dinner at the Just Desserts Café
24. “I Am and Always Have Been…”
25. Phanatics?
Epilogue: The Steps—Closed
Afterword to the Anchor Edition
Acknowledgments
Notes
Bibliography
Photo Credits
About the Author
Also by Jeffrey Toobin
Praise for Jeffrey Toobin’s The Nine
Copyright
To Adam
PROLOGUE
THE STEPS
The architect Cass Gilbert had grand ambitions for his design of a new home for the Supreme Court—what he called “the greatest tribunal in the world, one of the three great elements of our national government.” Gilbert knew that the approach to the Court, as much as the structure itself, would define the experience of the building, but the site presented a challenge. Other exalted Washington edifices—the Capitol, the Washington Monument, the Lincoln Memorial—inspired awe with their processional approaches. But in 1928 Congress had designated for the Court a cramped and asymmetrical plot of land, wedged tightly between the Capitol and the Library of Congress. How could Gilbert convey to visitors the magnitude and importance of the judicial process taking place within the Court’s walls?
The answer, he decided, was steps. Gilbert pushed back the wings of the building, so that the public face of the building would be a portico with a massive and imposing stairway. Visitors would not have to walk a long distance to enter, but few would forget the experience of mounting those forty-four steps to the double row of eight massive columns supporting the roof. The walk up the stairs would be the central symbolic experience of the Supreme Court, a physical manifestation of the American march to justice. The stairs separated the Court from the everyday world—and especially from the earthly concerns of the politicians in the Capitol—and announced that the justices would operate, literally, on a higher plane.
That, in any event, was the theory. The truth about the Court has always been more complicated.
For more than two hundred years, the Supreme Court has confronted the same political issues as the other branches of government—with a similar mixed record of success and failure. During his long tenure as chief justice, John Marshall did as much as the framers of the Constitution themselves to shape an enduring structure for the government of the United States. In the decades that followed, however, the Court fared no better than presidents or the Congress in ameliorating the horror of slavery or avoiding civil war. Likewise, during the period of territorial and economic expansion before World War I, the Court again shrank from a position of leadership, mostly preferring to accommodate the business interests and their political allies, who also dominated the other branches of government. 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.
For the next thirty years, through the tenures of Chief Justices Warren E. Burger and William H. Rehnquist, the Court stood nearly evenly divided on the most pressing issues before it. On race, sex, religion, and the power of the federal government, the subjects that produced the enduring controversies, control of the Court generally belonged to the moderate swing justices, first Lewis F. Powell and then Sandra Day O’Connor, who steered the