Q & A with Jeffrey Toobin

The following is a series of questions posed by Ronald Collins to Jeffrey Toobin on the occasion of the publication of  The Oath: The Obama White House and the Supreme Court (Doubleday, 2012).

Welcome Jeff.  Thank you for taking the time to participate in this Question and Answer exchange for our readers.  And congratulations on the publication of your latest book. 

 Question:

In your book you rely on not-for-attribution interviews with Justices and with more than forty of their law clerks.  Can you tell us how many sitting Justices, if any, you interviewed? 

 Answer:

 A majority of all living Justices (active and retired).

Question:  

Were any of the forty or so Supreme Court law clerks you interviewed working on the Court at the time?

Answer:

None.  I never approach clerks while they are working at the Court.

Question:

How is the credibility of any work to be tested if there is reliance on unnamed sources?

Answer:

Hard question to answer. I have written about the Court for some time now, and I have a considerable track record that readers can evaluate. Also, nothing is stopping anyone from asserting that I’ve made mistakes.

Question:

You describe the Chief Justice as a “conservative and a lifelong partisan Republican” and that he has “no particular affection for Obama.”  And then later on you add that “for Roberts personally and for the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius.”  Would you elaborate on that?

Answer:

The Chief’s conservative bona fides are a matter of public record; President Bush nominated him because of his ideology. (That’s why presidents pick Justices.)

As for the health care case, it was, in some fundamental way, the third case in a trilogy with Bush v. Gore and Citizens United. If the five conservatives on the Court, for the third consecutive time, again joined forces in such a politically charged environment to cripple a Democratic president, the damage to the Court’s reputation would have been profound, especially in an election year. By ruling as he did, Chief Justice Roberts removed the Supreme Court as a political issue from the 2012 campaign and insulated himself (and, probably, the full Court) from political attack for the foreseeable future. That’s genius.

 

Question:

On the one hand, you seem to believe that the Chief Justice and the President are on a sort of collision course.  On the other hand, you speak of the “institutional interests” of the Court, which have a moderating impact of the Chief Justice.  Will you say a few words on how you see this dynamic playing out in the years to come? 

Answer:

(This answer assumes that Obama will win re-election.)  The moderating influence of the institutional interests of the Court only applied, in my view, in the epic circumstances of the health care case. Roberts remains a conservative; Obama remains a liberal. To cite just one example, I think Roberts is determined to move to a “color-blind” Constitution, with no allowance for any kind of racial preferences. That has enormous implications for affirmative action, voting rights, and the like.

Question:

In describing his judicial philosophy, you stress that “the magnitude of Antonin Scalia’s accomplishment should not be understated.”  How much traction do you think his originalist jurisprudence is getting (or will get) on the Court?    

Answer:

A great deal of traction – in the Court and in the society at large. It is true that Roberts, Kennedy and Alito do not always apply originalist analysis, at least explicitly, but they almost always wind up at the same place as the two committed originalists, Scalia and Thomas.

I think the magnitude of Scalia’s victory was best illustrated by his majority opinion in District of Columbia v. Heller – where he and Stevens (in dissent) tangled over the correct originalist analysis of the Second Amendment. Twenty years earlier, that would never have happened. Justices simply did not write that way. In any major case now, some or all of the Justices will be engaging in originalist analysis – and that’s all because of Scalia.

Also, if you look at the confirmation hearings for Sotomayor and Kagan, all of the Republican Senators spoke as if originalism were the only legitimate form of constitutional interpretation. That matters, too.

Question:

Justices Antonin Scalia and Samuel Alito are both constitutional conservatives, but they are very different kinds of conservatives.  How, in your opinion, are they different and are their differences likely to have any impact on how the Roberts Court decides cases?

Answer: 

Justices Scalia and Alito agree most of the time. It’s a mistake, I think, to see them as very different. But it is true that there are some differences. Alito comes out of a more authoritarian conservative tradition; in this he resembles Chief Justice Rehnquist. You can see it in his solo dissents in the Westboro Baptist [Snyder v. Phelps] and crush video [United States v. Stevens] decisions, both First Amendment cases. Scalia has a more libertarian streak, especially in free speech cases.

Question:

The question of affirmative action is again before the Court in the Fisher case out of Texas.  In this regard, you flag Chief Justice Roberts’s opinion in the Parents Involved in Community Schools case (2007) wherein he wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

Do you think that the Chief Justice will lead the way in the Texas case?  What do you predict will be the outcome in the case and who might author the majority opinion if not the Chief Justice?

Answer: 

I definitely believe that Chief Justice Roberts will vote to overturn the Texas admissions policy in Fisher v. University of Texas. (Fair warning about my imperfect, at best, predictive powers about the Court. See my embarrassing NFIB v. Sebelius prediction.)

My guess is that Roberts will write himself, though he might give the opinion to Justice Kennedy if he feels he needs to do so to keep Kennedy on board. My guess, too, is that Roberts will not officially overrule Grutter v. Bollinger; that tends not to be how he operates. He tends to gut precedents he doesn’t like, rendering them meaningless (e.g., like Justice Kennedy’s opinion in the Gonzales v. Carhart abortion case), but he avoids overruling them by name.  Both Justices Scalia and Sotomayor have pointed this out.

Question:

In your discussion of the Citizens United case you refer to Justice David Souter’s unpublished dissent in that case as an “extraordinary bridge-burning” document.  Have you personally read that entire document or were you told of it?  Do you have a copy in your possession, and, if so, would you make it public?

Answer:

I don’t have it.

Question:

In The Oath you refer to Justice Clarence Thomas as a “conservative intellectual path-breaker.”  You mention this in the context of some of his First Amendment opinions.  Of the 29 First Amendment free expression opinions rendered by the Roberts Court, however, Justice Thomas has authored only two majority opinions, neither of which was path-breaking. (See Reichle v. Howards, 2012 (8-0) and Washington State Grange v. Washington State Rep. Party, 2008 (7-2)). 

In what sense, then, do you seem him as a First Amendment “path-breaker”? Which of his separate opinions do you see as point the path to future First Amendment precedents?

Answer:

 One of the many paradoxes of Justice Thomas’s tenure is that he has been influential without writing many important majority opinions. Indeed, it is difficult to think of a Justice who has been in the majority as often as Thomas for as long as Thomas and written so few important majority opinions. (Indeed, here’s an interesting exercise: What’s the most important majority opinion Thomas has written?  Beats me.)

Still, I think Thomas’s concurrence in McIntyre v. Ohio Elections Commission and his dissent in Nixon v. Shrink Missouri Government PAC include themes that are clearly reflected in Justice Kennedy’s decision in Citizens United.

Question:

In the Court’s most recent Term, which ran from October 2011 through June 2012, the Court issued 64 full, signed opinions after briefing and oral argument.  This is the fewest number of opinions in at least a half-century or longer.  What do you make of this? 

Answer:

Sixty-four opinions!  Divided by nine Justices, divided by four law clerks apiece – it’s a cushy job, being a Supreme Court Justice!

The reason for the decline is a bit of a mystery to me. Among the possibilities: The cert. pool, which creates a subtle but real pressure on the clerks to recommend a denial; the conservative domination of the circuit courts, which leads to fewer splits in the circuits; the Rehnquist-engineered elimination of the Court’s mandatory jurisdiction in several areas; defensive votes to deny cert., especially by Justices Ginsburg and Breyer; also – and this is no joke – the simple human preference for less work rather than more work.

Question:

Who do you think will step down first if President Obama wins in November?  And whom do you see as the most likely contenders for being nominated?

Answer: 

Justice Ginsburg has said she will leave when she is 82, which would be in the middle of a second Obama term (assuming there is a second Obama term).  Among the possible replacements are non-judges like Deval Patrick, Kamala Harris, and Janet Napolitano. The judges would include Goodwin Liu and Merrick Garland.

Question:

Who do you think will step down first if Governor Romney wins in November? And whom do you see as the most likely contenders for being nominated by him?

Answer: 

I think Justice Scalia (now 76) would leave during a Romney presidency. Leading candidates would be Brett Kavanaugh, Paul Clement, and Lindsay Graham.

Question:

This past Term many were surprised by the results in the health care and immigration cases in light of what was said at the oral arguments in those cases. What do you think the oral arguments in the Roberts Court tell us, if anything, about the likely outcome of a case?

Answer: 

Given my record, I’m probably the wrong guy to ask this question.  But, I think oral argument tells you a lot. Ever since the Rehnquist Court, the Justices do not discuss cases with each other very much. Oral argument is their opportunity to make their case to their colleagues. They use it. They don’t (as a rule) play devil’s advocate.

Question:

Which of the current Justices, in your opinion, are most likely to remembered fifty years from now and why? 

 Answer: 

Justice Scalia, for sure. He led a major era of conservative ascendancy and he brought a mode of analysis (originalism) that has staying power.

Chief Justice Roberts, probably. He is off to a great start, but his long-term record will depend on future appointments. A strong conservative majority will give him all the tools he needs. Four more years of Obama, followed by eight years of Hillary Clinton, followed by eight years of Andrew Cuomo, followed by eight years of Malia Obama (does that get her to age thirty-five?), and Roberts is not so influential.