The life of a Supreme Court justice would be “a little bit too monastic” for President Obama, according to an interview he gave the New Yorker about his legal legacy.
Obama also praised the Supreme Court’s recent decision not to review lower-court rulings that struck down state prohibitions on same-sex marriage, saying he believes that the Constitution provides gays the right to marry. And he said that 81-year-old Justice Ruth Bader Ginsburg “gets to decide, not anybody else, when she chooses to go” into retirement.
Obama made the remarks to the magazine’s legal correspondent, Jeffrey Toobin.
Toobin noted that the president has now nominated about a third of the nation’s federal judges — including Justices Sonia Sotomayor and Elena Kagan — and that on nine of the nation’s 13 appeals circuits, a majority of judges were chosen by Democratic presidents. When Obama took office, Republican appointees were a majority on 10 of the circuits.
Obama said he takes pride that he has appointed more women and minorities to the courts than any of his predecessors.
“I think there are some particular groups that historically have been underrepresented — like Latinos and Asian Americans — that represent a larger and larger portion of the population,” he said. “And so for them to be able to see folks in robes that look like them is going to be important.
“When I came into office, I think there was one openly gay judge who had been appointed. We’ve appointed 10.”
Asked to name “the best Supreme Court decision of his tenure,” Obama picked the court’s announcement this month that it would not review three appeals-court rulings that had collectively struck down bans on same-sex marriage in five states, including Virginia.
That allowed same-sex marriage to proliferate — soon, it is likely that the unions will be available in 35 states — while delaying a decision from the justices about the constitutionality of the issue.
“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential — from my perspective, a positive sense — as anything that’s been done,” Obama said.
“Because I think it really signals that although the court was not quite ready — it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board — it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.”
Loving v. Virginia was the Supreme Court’s 1967 ruling that state bans on interracial marriage were unconstitutional.
Obama’s analysis of the court’s action would be disputed by some. For instance, it could be that a majority of the court would find a constitutional right for same-sex couples to marry but that the justices did not think the timing was right.
Ginsburg has said there’s no need for the court to “rush” to decide the issue when there has been no disagreement among the appeals courts.
In addition, recent action on the matter has come not from state governments but from federal courts. While polls show that a majority of Americans support same-sex marriage, activists say pursuing legal battles against state constitutional amendments is faster and more efficient than attempting to change them through the political process.
Obama did not announce his support for same-sex marriage until May 2012. But he told Toobin he believes that the Constitution’s equal protection clause “does guarantee same-sex marriage in all 50 states.”
Toobin noted that the Obama administration has yet to take that position in court.
The president seemed to disagree with the liberal Ginsburg’s recent statement that if she retired this year, Obama would not be able to “successfully appoint anyone I would like to see in the court.”
He said the increased media attention given to Supreme Court nominations would mean that “some of the shenanigans that were taking place in terms of blocking appointments, stalling appointments, I think are more difficult to pull off.” (As a senator, Obama opposed both of President George W. Bush’s Supreme Court nominees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.)
Still, Obama did not want to be seen as rushing Ginsburg, with whom he has a personal relationship.
“She is one of my favorite people. Life tenure means she gets to decide, not anybody else, when she chooses to go,” he said. Asked whether he had any advice about her retirement, the president smiled and replied: “None whatsoever.”
Toobin also asked Obama, who once taught constitutional law at the University of Chicago, if, like President William Howard Taft, he nurtured thoughts of serving on the Supreme Court.
“I love the law, intellectually,” Obama said. “I love nutting out these problems, wrestling with these arguments. I love teaching. I miss the classroom and engaging with students.
“But I think being a justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”