The Nine: Inside The Secret World of the Supreme Court. 

Editor's note. If you have any comments or questions, please write to daveandrusko@hotmail.com..

It's taken me a long, long time, but about half the time now I use my 60 minutes commute to listen to books on CDs. Most recently I've started Jeffrey Toobin's book The Nine: Inside The Secret World of the Supreme Court.  I didn't even get past the prologue before my jaw began to drop. Just a couple of words of preface to put my critique in context.

If Toobin, who writes for the New Yorker and appears on CNN, is privy to any secrets, you wouldn't know it by most of the reviews. Although he says he's talked to 75 former clerks--and obviously with a couple three justices on the Q.T.--Toobin's "scoop" is supposedly that former Justice Sandra Day O'Connor has no use for President George W. Bush. (This, we are to believe, is part and parcel of being "increasingly alienated from the Republican Party she loved," as Nina Totenberg, NPR's legal affairs correspondent., characterized the situation in her review of The Nine.)

Well, who knows. What we do know is that The Nine is replete with factual errors, some of which Toobin has already acknowledged, others he's finessed.

We know from the get-go that O'Connor is the heroine, a woman who almost single-handedly staved off the Huns on the Court until called away to care for her ailing husband.

We know (a mere two CDs into the book) that Toobin misrepresents a memo Justice Samuel Alito (O'Connor's successor) wrote in 1986 as an assistant to the solicitor general in the Reagan administration, about Thornburgh v. American College of Obstetrics and Gynecologists, case. Toobin imputes to Alito the exact opposite course of action from what the young Alito actually recommended. Etc.

But what grabbed me were these two breathtakingly misleading paragraphs:

"Yet the touchstones of the years 1992 to 2005 on the Supreme Court were decisions that reflected public opinion with great precision. The opinions were issued in the Court's customary language of legal certainty -- announced as if the constitutional text and precedents alone mandated their conclusions -- but the decisions in these cases probably would have been the same if they had simply been put up for a popular vote. …

"These decisions -- the legacy of the Rehnquist Court -- came about largely because for O'Connor there was little difference between a judicial and a political philosophy. She had an uncanny ear for American public opinion, and she kept her rulings closely tethered to what most people wanted or at least would accept. No one ever pursued centrism and moderation, those passionless creeds, with greater passion than O'Connor…"

Let me make just two points. My strong sense is that, if not here, elsewhere, Toobin would strongly assert that the 1973 Roe v. Wade decision was a decision that "probably would have been the same if they had simply been put up for a popular vote."

But neither this original misguided verdict nor the hideous 2000 Stenberg v. Carhart decision, which invalidated Nebraska's ban on partial-birth abortion, was "closely tethered to what most people wanted or at least would accept."

The former unleashed an assault on the littlest American that has claimed the lives of over 48 million unborn babies. The latter, until it was effectively reversed last April, said it was okay to kill babies in a manner that even the director of the most gore-ridden movie imaginable would find grotesque.

It's fine for commentators to make a saint out of Justice O'Connor. Their call.

But for them to continue to insist that she pursued "centrism and moderation" in her abortion decisions is to display an unfathomable ignorance or to mistake their own rambunctious support of the slaughter of the unborn with the sentiments of the American people.

Why is that still important? Because so many commentators will unfavorably contrast O'Connor's unwillingness to accept any restrictions on abortion with Justice Alito's thoughtful willingness to explore where the Court may have gone wrong.

This is to turn language on its head. An unbridled support for abortion, come what may, is "moderate," while a fair-minded openness to exploring where the wheels may have come off the Court's abortion jurisprudence is "extreme"?

When I finish The Nine, I'll report back.

If you have any comments or questions, please write Dave Andrusko at daveandrusko@hotmail.com.