By Mary Carole McCauley
September 16, 2012
Even when Jeffrey Toobin is absolutely, positively, flat-out wrong, it’s worth listening to what he has to say about the U.S. Supreme Court.
Toobin, an Emmy Award-winning senior analyst for CNN and a staff writer for The New Yorker not only is smart, he also has a background as a practicing attorney. A few years after graduating from Harvard Law School, he was part of the prosecutorial team that tried Oliver North.
For his new book, “The Oath: The Obama White House and the Supreme Court,” Toobin has his usual impeccable sources. He says that he spoke with “a majority of the current and former justices,” though he declines to identify them specifically, as well as the law clerks for all nine. “The Oath” will be published Tuesday.
So what does it matter that Toobin was widely quoted in late May as predicting that the Affordable Care Act would be struck down? Who cares whether he described the Obama administration’s case as a “train wreck?”
“The Supreme Court surprised everyone,” Toobin says, laughing, “and no one more than me.”
The author will be in Baltimore on Friday at the Enoch Pratt’s central library to read from “The Oath” and to discuss his lifelong fascination with the nation’s highest court.
The premise of your book is that from the moment Chief Justice John Roberts botched the oath of office at the inauguration of President Barack Obama, the relationship between the Supreme Court and the White House has gone downhill.
Barack Obama and John Roberts represent different political and legal traditions. They’re both really smart, decent, charismatic — and completely at odds about most issues.
And yet it was the archconservative Roberts who sided with four liberal justices to hand Obama one of his biggest victories as president. If you were starting now to write “The Oath,” would the thrust of your book be different?
The health care decision doesn’t change my central premise. But it does change my perception of Roberts to a certain extent, no question about it. John Roberts did not discover his inner moderate. But he did establish that he has an enormous concern for the institution of the Supreme Court that is somewhat separate, though not totally, from his political agenda.
But it’s not as though Roberts is going to be transformed. I don’t expect to see that 5-to-4 configuration in which Roberts is siding with the liberal judges often — or perhaps ever again.
What’s your sense of why he decided to uphold the health care act?
I think his desire to keep the court out of the partisan abyss that the other branches of government have descended into trumped his conservative ideology in this one case.
Roberts saw the possibility of a trilogy of cases — Bush v. Gore, Citizens United and Affordable Health Care — in which five Republican justices would take steps aggressively against the Democratic Party.
He did not want to see the court in that position. He’s not naive. He knows the court cannot be completely divorced from politics, but he wants some measure of separation between the elected and judicial branches.
Let’s talk about Citizens United. In the book, you argue that that Roberts set out to advance conservative Republican goals by hijacking a case about a narrow aspect of campaign finance law and turning it into a free-speech fight. The eventual result was that on Jan. 21, 2010, the court struck down all restrictions on political advertisements by corporations.
The Citizens United ruling was a dramatic departure from decades of Supreme Court precedent and a huge gift to the Republican Party. I think it’s irresponsible to pretend that a decision about how campaigns are funded is unrelated to which side benefits — and this is a case where the Republicans are benefiting and will continue to benefit.
And it isn’t the end. It’s just the beginning. The decision was a major step in the deregulation of American political campaigns. The logic of Citizens United could clearly extend to allowing direct contributions by corporations to campaigns. The logic could also extend to putting an end to the limits on how much individuals can contribute to a political campaign.