Back in the days when we lived in NYC, we were given front row seats to Nine, a stellar musical whose genesis was somewhat matryoshkan. (OK, OK, I just made that one up; keep reading.) Based on a book by Arthur Kopit (music and lyrics by Maury Yeston) Nine’s plot had its roots in an Italian play by Mario Fratti which had its roots in Fellini’s autobiographical film 8 1/2 about a film director in the throes of a midlife crisis. Have we gotten the matryoshkan link yet? Think Russian dolls.
Jeffrey Toobin’s latest best seller The Nine: Inside the Secret World of the Supreme Court has nothing to do with Fellini, music, or Broadway. But it does deal with existential crises — precisely that of the Supreme Court, which, Toobin said at Sunday’s Patron Event (a spellbound crowd of 750+), is “at a great turning point.”
Contrary to what you might assume, the Court’s identity conundrum is not the result of a shift from Democratic Presidential appointments to Republican ones but instead, according to the author, mirrors the deep shift in the Republican Party. I’m not up to giving a brief on Toobin’s talk. Although I’m the granddaughter, daughter and wife of lawyers, I don’t even play one on TV so instead, I’ll share a few impressions and vignettes.
1. The late 60’s the Court was a liberal institution rendering decisions about freedom of the press, legality of birth control (Griswold v. CT, based on a married couple’s right to privacy), defendants’ rights (can you say Miranda?), and Loving v. Virginia which struck down any laws against interracial marriages.
2. In 1969 four Justices vacated the Court. Richard Nixon (as Toobin wryly noted, “had to leave early”) after only five and a half years, appointed four Justices. The four, though appointed by a Republican President, did not move the Court drastically to the right.
3. In fact the ensuing decade saw a series of liberal decisions on issues as wide ranging as school busing, the death penalty (outlawing it for two years, anyway); the Pentagon Papers, and US v Richard Nixon, the case over the Watergate Papers that resulted in Nixon’s resignation.
4. A shift began in the 1980’s with Ronald Reagan, who set out to methodically change the court, bringing religion into the public sphere and setting the course for a conservative agenda with his appointments of Sandra Day O’Connor (fulfilling a promise he made to appoint the nation’s first female Justice); Antonin Scalia; and the naming of William Rehnquist as Chief Justice. When Robert Bork’s nomination was scuttled in the eleventh hour Anthony Kennedy was named and eventually confirmed. Having one’s surname entered into the lexicon, though small and bitter comfort to Mr. Bork, stands as a perpetual reminder of what the systematic defamation by one’s fellow countrymen can do to candidates up for public office. (That’s me talking, not Toobin.)
5. The 80’s brought about other changes: a reduction in case load from 150 to 80 and the proposal (never happened) to add a Supreme Appellate Court.
6. Bush v Gore was not only pivotal to the country but to the Court, which Toobin said became “decidedly more liberal” — staying the execution of a mentally ill man, abolishing the death penalty for juveniles, striking down anti-sodomy laws and in a real gavel splitter allowed that race may be used in university admissions. In addition the court also rejected the Bush administration’s position on Guantanamo.
7. What was the reason for this shift? Three words: Justice O’Connor changed. Toobin said that the “evolution of the Republican party shocked her, alienating her from her own party.”
8. The clincher was the Terry Schiavo case. At the time, Justice O’Connor, whose husband had developed Alzheimer’s, began bringing him to work with her. Eventually she stepped down in June, 2005 to care for him full time leaving one and then two (upon the death three months later of Chief Justice William Rehnquist) openings on the Supreme Court.
9. With the confirmations of Chief Justice Stephen Roberts and Justice Samuel Alito, Toobin concluded that there was “a complete transformation of the court as it reflected the change in the Republican party.”
With apologies to William Rose Wallace, it is interesting to note that as the hand that rocked the cradle rules the world, the hand that guided her beloved ultimately changed the Supreme Court.