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Jeffrey Toobin
Author, "The Nine"
Wednesday, September 26, 2007; 12:30 PM

Toobin guides us through the last 15 years of court history by focusing on individual justices, and his portraits are unspoiled by hagiography. Toobin's Rehnquist has little interest in the reasoning even of his own opinions; the brilliant but pugnacious Antonin Scalia alienates potential allies; Stephen Breyer is an eternal optimist with a sometimes unrealistic belief in his own powers of persuasion; and a pompous Anthony Kennedy (Toobin's least favorite) revels in his power to shape the law. Review: Supreme Politics ( Post, Sept. 23)

Journalist Jeffrey Toobin, author of "The Nine," fielded questions and comments about his new book about the Supreme Court.

The transcript follows.

Jeffrey Toobin is a staff writer at The New Yorker and a legal analyst at CNN. His other books focus on high-profile legal cases, including O.J. Simpson and Oliver North.

Join Book World Live each Tuesday at 3 p.m. ET for a discussion based on a story or review in each Sunday's Book World section.

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Jeffrey Toobin: Hi everyone. Sorry about the delay in starting. Looking forward to your questions.

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Burlington, Vt.: You have written about Justice Souter's reaction to the Bush v. Gore decision and how he contemplated resignation. Was he as invested in Gore's election as O'Connor and the other four in the majority appear to have been in Bush's election (that is, as sort of a partisan) or was he mostly upset because he saw the decision as a betrayal of principles? I suspect Souter might have reacted about the same if, under the exact same circumstances, the court had ruled for Gore. Do you think this is true?

Jeffrey Toobin: It's always complicated sorting out motives in Bush v. Gore, but I do believe that Souter was concerned primarily about the role of the Court -- that the majority betrayed its customary views on Federalism and Equal Protection to help the Republican candidate. If the shoe had been on the other foot, I suspect Souter -- a principled man -- would have felt the same way.

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Philadelphia: How much influence do you believe law clerks have on justice decisions and on their writings?

Jeffrey Toobin: Not as much as they think. They write first drafts, do most of the work on the less controversial cases, but the voting -- which is the most important thing -- is entirely in the hands of the Justices. I don't buy the idea that any Justice is especially "clerk driven."

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Lyme, Conn.: Did your research look at all at how the justices viewed their decision regarding the 2000 presidential election? If so, what are your thoughts to the Vanity Fair article quoting law clerks who alleged the justices made the decision first and then asked the clerks to devise legal reasoning to justify the decision?

Jeffrey Toobin: I deal with Bush v. Gore at length in my book -- three chapters! I think David Margolick's article in Vanity Fair was excellent, but I think my book very much fills out the picture.

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South Bend, Ind.: Thanks for doing the chat, Mr. Toobin! Given that Republican presidents have nominated all but two of the Court's members since Nixon, why do you believe we haven't seen a more rightward lurch? Did President George H.W. Bush really not know that David Souter would turn out to be this moderate-to-liberal justice?

Jeffrey Toobin:11 of the last 13 Justices have been appointed by Republicans. But it's only since Souter -- and largely because of Souter -- that the conservative wing of the party has demanded absolute fealty in Republican appointments. (And George W. Bush, a very conservative man himself was only too happy to appoint strong conservatives.) The relative Republican moderates -- O'Connor, Kennedy and Souter -- were appointed under very different circumstances than the other Justices.

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Philadelphia: I heard Joe Scarborough criticize your book, claiming that it contained some descriptions of events that had previously been proven untrue. Are you aware of his comments? If so, what is your response? Is there any part of your book which, since publication, you would retract, or do you stand by the whole book as true to the best of your knowledge?

Jeffrey Toobin: I read what Joe said, and I disagree. I'm not one to get into a cable-news shouting contest with the guy, but I'll stake my record against his any time.

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Harrisburg, Pa.: You have written about O.J. Simpson. What are your thoughts regarding his current legal difficulties?

Jeffrey Toobin: I think the new case -- OJ Lite -- looks like it might be pretty weak. There don't seem to be very many innocent victims in that case. However, if this case gets before a jury, it may be that some jurors want to punish him for what was regarded (including by me) as a miscarriage of justices.

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Washington: You mention in the book that as Chief Justice Rehnquist lay dying, he met with only Justices O'Connor and Stevens. Do you have any guess as to why that was the case? What was his relationship with his more conservative colleagues, Justices Scalia and Thomas?

Jeffrey Toobin: Chief Justice Rehnquist was a very private man. I don't think he was snubbing the others as much as he was unwilling to be seen in such a weakened condition. He was popular with all his colleagues, but he was in very bad shape most of the time after his diagnosis.

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Williamsburg, Va.: Was the selection of Sam Alito supposed to be a slap in the face of Justice O'Connor? The group of people leading the selection process must have known about his decision in Casey, which she later would repudiate when the case reached the Supreme Court.

Jeffrey Toobin: It was not so much as slap at O'Connor as the selection of someone whose ideological profile was appealing both to the White House and its conservative allies. The fact that he had ruled in a way that O'Connor overruled in Casey was just part of his larger record -- which was very different from O'Connor's own.

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Washington: If a Democrat were to win in 2008, do you see the more liberal justices resigning before the end of his or her first term? The liberals are almost all of the older justices (Scalia is the only older conservative) and that might be their one chance to resign and have a Democrat pick their replacement. Do Justices Stevens and Souter, Republican appointees, even want a Democrat to pick their successor?

Jeffrey Toobin: I can't say what they all want in their hearts, but I think Stevens, Souter and Ginsburg will be gone in the next term. Justices recognize that their opinions are their legacies, and they don't want the Court to overrule them -- which means a like-minded president is important. But time takes its toll. (By the way, Scalia and Kennedy are almost exactly the same age.)

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Washington: you seemed to go on at length last night on CNN about the late President Ford's intervention in the Michigan case, but isn't there something a little unseemly about the military intervening in a case that, on its face, has nothing to do with the military? I realize the justices cited the spillover effect but I really think that's because they wanted to, not because it was a justifiable concern. And your interview with that old guy didn't seem to indicate that he had higher motives than just doing what Ford told him to do. Seems odd to me.

Jeffrey Toobin: It wasn't the military that intervened. It was retired officers who filed an amicus brief, saying, "These are the implications of this case." I think that's totally approrpriate. That's what amicus briefs are for. Jim Cannon -- and Ford -- cared about preserving affirmative action, and this case was the way to do it.

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Westwood, Mass.: What was the strongest personal attack a justice has made on another justice in writing or verbally in open court?

Jeffrey Toobin: Scalia said some harsh things about O'Connor early in her tenure -- that her arguments can't be taken seriously. Breyer's statement at the end of last term implicitly about Roberts and Alito was tough, too. A paraphrase: "It is rare in law that so few have done so much so quickly."

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Boston: There was a saying about the bad Red Sox teams of old: "25 players, 25 cabs" -- meaning they were just a collection of individuals who didn't really like each other or act as a team. So is it "nine justices, nine towncars" or do the nine ever socialize as a group? Would all the other eight be invited to the wedding of one of the justice's children, or just that justice's ideological pals on the bench?

Jeffrey Toobin: Nine cabs. But that is not a bad thing. Chief Justice Rehnquist thought good fences made good neighbors. The Justices don't see much of each other outside of official business, but they are very courteous and respectful of one another. I don't think deeper friendships would make much difference.

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Washington: Justice Kennedy obviously is the key on basically all of the important issues that come before the Supreme Court. Do you get any sense as to how he feels about what his retirement could do in terms of precedent? If he resigns during a Republican presidency, decisions he has held in favor of abortion rights, gay rights and protecting the environment could be overturned -- but resigning during a Democratic administration probably would push the Court further to the left than he would like.

Jeffrey Toobin: Justice Kennedy is hale and hearty and loving being at the center of the Court. I don't think he's giving retirement a thought at the moment. Why should he?

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Boston: How do you handicap the court taking up the Indiana voter ID case ahead of the 2008 elections? I'm obviously not a lawyer (as evidenced by how I phrase this question) but does "relative harm" come into play for a vote that might partially be diluted because of voter fraud, versus a vote that is completely missed because someone does not have photo ID? Also, can lawyers point to recent studies that show that voter fraud issues have been overblown, or does that have no bearing?

Jeffrey Toobin: I think the court is likely to uphold the law. The argument against the law is that it's a fake -- that it's just a vehicle for stopping poor people and minorities from voting. It will be difficult to prove that's what the law is, so I think the Court will uphold it.

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Washington: Is there any part of their jurisprudence where you have been surprised by Chief Justice John Roberts and Justice Alito, or any part you think might surprise us?

Jeffrey Toobin: Not a single one. Roberts and Alito have both been down the line conservatives, which is exactly what was to be expected. (Alito cited legislative history in an opinion, a practice which Scalia hates, but that's pretty minor, inside baseball.)

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1L Student in Torts Class: How many of Justice Scalia's law clerks gave you some variation of the line "yes, he's mean in his opinions, but personally he is a very warm and engaging person"?

Jeffrey Toobin: Some but not all. Scalia is pretty tough on his clerks -- a very distant boss. He's actually warmer and more engaging to outsiders. He's great company.

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Detroit: Any pretense that the Supreme Court is an an apolitical institution meant to uphold the Constitution and laws disappeared with the 2000 election. The court's majority decision to select a president for the nation, rather than allowing the country to elect one, showed that we do not live in a democracy of the type that is taught to our children.

Jeffrey Toobin: Yours is a common view among Democrats. I would argue that the Court could never be an apolitical institution; constitutional law is simply too bound up in politics. The question is whose politics -- and which president -- will control the future of the Court.

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Arlington, Va.: Hi Mr. Toobin -- do you think the selection of justices has become too political, maybe dating back to the Bork nomination? Or has this always been a problem? And is there anything that can be done to make sure the best judges are nominated, not just the easiest to approve?

Jeffrey Toobin: I don't know if I'd say "too political." I think there should be more candor in the process -- that nominees should not be afraid to say how they feel about major issues. There should be nothing wrong with nominees having long records and strong views, and the Senate should be able to evaluate that record for fitness for the Court.

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washingtonpost.com: You note that Justice Sandra Day O'Connor takes a dim view of the Bush presidency. Do you know if that disdain carries over to the justices he has appointed, John Roberts and Sam Alito?

Jeffrey Toobin: O'Connor thinks the world of Chief Justice Roberts -- believes that he is a wonderful ambassador for the Court.

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Arlington, Va.: If the Democrats win the White House and increase their lead in the Senate, do you think we'll see retirements from the older, liberal justices?

Jeffrey Toobin: I do. If a Democrat wins (and possibly even if a Republican wins), I think Ginsburg, Stevens and probably Souter will be gone in the next four years.

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washingtonpost.com: You write in your book about the rancorous atmosphere among the law clerks of the court during Bush v. Gore. Do you know if the justices have adjusted their hiring tactics since that class to bring in clerks who will get along better with colleagues across the political spectrum?

Jeffrey Toobin: I don't think so. The clerks have always been more animated in their dealings with each other than the Justices. They're younger, for one thing. The stakes in that case were immense. No wonder the clerks fought. I think the Justices recognized that Bush v. Gore was well out of the ordinary.

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St. Paul, Minn.: Hi Jeffrey -- Thanks for taking my question -- I appreciate your insights both in writing and on TV. I teach a law course to first-year college students (not law students). If there was one U.S. Supreme Court decision you think they should know about and understand, what would it be?

Jeffrey Toobin: Gosh, there are so many. Marbury v. Madison, for the concept of judicial review. It's worth reading Bowers v. Hardwick and the case that overruled it, Lawrence v. Texas, for seeing how the Court changes. Good luck!

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Boston: How does legitimacy come into play with our judicial system? If our Justice Department can be turned into a partisan fiefdom of the executive branch (career hires based on political affiliation for example) and the Supreme Court is incapable of being apolitical, what faith should Americans have that justice is blind and our country is a nation of laws, not the whims of man?

Jeffrey Toobin: I don't think all politics are bad. I don't think you could exclude politics from the Supreme Court, much less the Justice Department, even with the best of intentions. I think it's better simply to be open about the process -- that politics will always be a part of law and that presidents should be chosen with that in mind.

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Pittsburgh: I used to think that if Congress doesn't like a court ruling, it simply needs to pass a clear enforceable law. However, having watched Sen. Specter go on at length about the court dismissing Congress's finding of fact in formulating the Violence Against Women statute, I'm not so sure. Has the Court usurped Congress's fact-finding perogative?

Jeffrey Toobin: This is a complex question. Congress can't change the Constitution, so if the Court finds a statute unconstitutional, there's nothing Congress can do about it. But if the Court is merely interpreting a statute, Congress can always change the law to guarantee another interpretation.

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Washington: In your opinion, which Justice votes most consistently with the manner in which they are perceived by the public? That is, is one justice viewed as a complete liberal yet consistently votes with what might be called the more conservative justices? And vice versa, of course. Or is what we see largely what we get?

Jeffrey Toobin: What you see is what you get. The Court is very polarized right now. There are four predictable consrvatives: Roberts, Scalia, Thomas and Alito. Four moderate-to-liberals: Stevens, Souter, Breyer and Alito. And a mostly conservative Justice Kennedy. I know the Justices don't like to be labeled that way, but the labels are useful because they are almost always accurate.

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Washington: You mention Justice O'Connor had a dim view of the Bush administration, yet she still resigned during his time in office? Obviously, her husband's poor health was the major factor in that decision, but was it also somewhat out of loyalty to the GOP?

Jeffrey Toobin: I don't think you can ever pinpoint a single cause, but I do think John O'Connor's health was by far the major factor. Certainly at one point, O'Connor cared about turning her seat over to a Republican, but I don't think it was a factor in her departure in 2005. Her feelings about President Bush would have pushed her to stay.

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New York: Does Clarence Thomas ever ask a single question (or say a word) during the court proceedings? Does his silence mean he already has decided on the case at hand?

Jeffrey Toobin: In the term that was completed in June, Thomas did not ask a single question for the entire year -- through around 100 oral arguments. (I believe that's the number.) I believe that's the first time he ever went a full year, but he asks very few questions. Over the years, he's given varying explanations for why he doesn't talk.

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Washington: You've mentioned possible retirements of Stevens, Ginsburg and Souter. What do you think will be the legacy of each of those justices? Will it actually involve their legal philosophy or will it likely just be that Stevens probably will have served the longest (getting close!), Ginsburg was the second woman and Souter led to the Right getting more serious about who gets nominated?

Jeffrey Toobin: Wow. That's a big question, and I think your summaries are reasonable. I think a great deal depends on who comes next. Stevens, for example, could be seen as the Justice who set the stage for a liberal revival -- or the last gasp before a totally conservative-dominated Supreme Court.

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washingtonpost.com: Who are some of the leading candidates to fill potential vacancies during the next presidents' term (for either party).

Jeffrey Toobin: If Hillary Clinton wins, look for her first nomination to be (I'm serious) Barack Obama. I'm less sure about the Republicans.

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washingtonpost.com: Which of the justices do you think law clerks most enjoy working for, and why?

Jeffrey Toobin: Souter. His clerks just adore the guy.

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Jeffrey Toobin: Thanks for all the great questions. I hope you check out The Nine. See you on CNN and in the pages of The New Yorker. Cheers.

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