Jeffrey Toobin: ‘The Oath’ and the Roberts Court

This piece originally appeared in my column for Huffington Post on June 4, 2013.

Jeffrey Toobin The Oath

Jeffrey Toobin’s 2007 book The Nine: Inside the Secret World of the Supreme Court — the most revealing insider account of the Supreme Court since Bob Woodward and Scott Armstrong’s 1979 classic The Brethren — was the story of how the court of Bush v. Gorebecame a moderating force against the Bush administration on issues like abortion and the legal rights of enemy combatants post-9/11.

In The Oath: The Obama White House and the Supreme Court, which is just out in paperback from Anchor Books, a division of Random House, the veteran New Yorker staff writer, CNN analyst and Supreme Court chronicler finds a court transformed. After 11 years in which which the same nine members served on the court, Chief Justice John Roberts replaced Chief Justice William Rehnquist in 2005 and Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006.

Although the two new justices in the mid-2000s did not change the 5-4 conservative majority on the court, they forged a different kind of conservative majority — one that made an aggressive and confident right turn on issues like affirmative action, search and seizure, campaign finance, and voting rights. (O’Connor, meanwhile, is not so sure the court should have gotten involved with the 2000 election.)

Toobin and I discussed his books and the current state of the Supreme Court earlier this week by email, which I lightly edited below.

In The Nine, you reported that Justice David Souter would eat an entire apple — core and all — every day for lunch when he was on the court. Did you come across any more weird anecdotes in reporting for The Oath?

That the reason Roberts and Obama messed up the oath on January 20, 2009, was because a congressional secretary didn’t download the attachment to an email. The attachment was Roberts’ version of the oath, but the secretary never passed it along to Obama’s staff.

One of the big takeaways from The Oath is that the conservative majority has moved the Supreme Court to the right. Isn’t that just what majorities do — move the court in their own ideological direction?

That is what majorities do — just as the liberal majority in the Warren Court moved the court and the country to the left. My preference on these issues is simple candor. Too often the judges (on both sides) simply insist that they are doing “the law,” which has nothing to do with politics. My view is that law, especially constitutional law, has everything to do with politics.

Do you think the record numbers of vacancies in the district courts and the D.C. Circuit reflects more a dysfunctional Senate confirmation process or Obama’s lack of interest in the courts relative to other priorities?

Hard to separate out the two. I think Republican obstruction is probably the bigger factor, but Obama’s lack of interest in the subject of judicial appointments is one of the mysteries of his presidency. It does appear that he is taking a more aggressive tack, with a group of nominees to the D.C. Circuit soon to be unveiled. But the lost opportunity of his first two years in office, with 60 Democratically controlled Senate seats, will never be recaptured.

The big decisions from the current term will be delivered in the next few weeks. What decisions are you most interested in seeing?

There are four huge cases still to go. Fisher on affirmative action, Shelby County on the future of the Voting Rights Act, and the two same-sex marriage cases about the Defense of Marriage Act and Proposition 8. The first two cases will be an important signal of how the court will address the great question of twentieth century law — race. And the second two will tell us about a great issue of the twenty-first — gay rights.

What issues do you expect the court will take up in the next term?

When Republicans recaptured statehouses in the 2010 midterms, they set about restricting abortion rights in new and inventive ways. By next term, several of these issues will arrive before the justices. And many of them have never addressed abortion on the court. Also, the Roberts court seems determined to undo racial preferences and affirmative action, and any issues left open this term may soon return.

Aside from his Obamacare decision, do you see Chief Justice Roberts positioning himself to preside over a court where he may not always have a conservative majority?

Tell me who wins the 2016 presidential election, and I’ll tell you the answer to that question. The ideological breakdown of the court is stable and likely to remain that way for the rest of Obama’s term. (I expect Ginsburg will retire and be replaced by someone like-minded, probably Sri Srinivasan.) The real question is who will replace Scalia and Kennedy, who will both be in their eighties under the next president.

Given the strong odds that a Democrat elected president in 2016 would have an opportunity to shift the court from a conservative to a liberal majority, if one of the conservative justices passed away and left an open seat, do you think the Senate confirmation process could simply shut down and leave the court with eight justices for a term or longer?

I don’t see how that would be possible. Supreme Court appointments are sufficiently important that the Democratic majority in the Senate would force Republicans to engage in an actual talking filibuster, and those cannot go on forever. Refusal to allow a vote on a Supreme Court nominee would almost certainly result in the Democrats changing the rules in the Senate to restrict filibusters on judicial nominees. So I don’t think Republicans could hold up Supreme Court nominees indefinitely.

You wrote a profile of Justice Ruth Bader Ginsburg a few months ago in The New Yorker. Did you get the sense from talking to her and the people around her that she would likely retire at the end of this term?

Not this term. And probably not next term. But very possibly in the third year of Obama’s second term.

In The Oath, you quote Justice Stephen Breyer as saying: “It is not often in the law that so few have so quickly changed so much.” Do you think a liberal majority anchored by Justices Breyer, Elena Kagan and Sonia Sotomayor would be more inclined to preserve the court’s recent conservative decisions like Citizens United on the basis of precedent or reverse them?

Hard to speculate about something that is really way off and may never happen. My sense is that the liberals would try to limit various decisions they don’t like (such as Citizens United) and possibly overturn them down the line. But it would be a long process.

The Nine and The Oath are essentially a two-volume history of the Supreme Court since 2000. Are you planning on writing another volume?

Not immediately and probably not for my next book. But the Supreme Court is a great subject, and it’s not going away. For better or worse, I don’t think the court (and the reading public) have seen my last word on the subject.

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