Business Insider: Jeffrey Toobin: Justice Scalia Would Step Down Soon If Romney Wins

October 22nd, 2012

Business Insider
Ronald Collins
October 22, 2012

 

 

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 inDistrict 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 [Brown v. Entertainment Merchants Association] decisions, both First Amendment cases. Scalia has a more libertarian streak, especially in free speech cases.