OBAMA AND THE SUPREME COURT NOVEMBER 18, 2012 PAGE 1

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1 PAGE 1 TOM PUTNAM: Good afternoon. I'm Tom Putnam, Director of the John F. Kennedy Presidential Library and Museum. On behalf of Tom McNaught, Executive Director of the Kennedy Library Foundation, and all of my Library and Foundation colleagues, I thank you for coming and acknowledge the generous underwriters of the Kennedy Library Forums: lead sponsor Bank of America, Raytheon, Boston Capital, the Lowell Institute, the Boston Foundation; and our media partners, The Boston Globe and WBUR. Jeffrey Toobin begins his new spellbinding narrative of the Supreme Court in the age of Obama and Roberts by recounting in fascinating detail the infamous first public encounter between the two men at the inauguration of our 44 th President. I will let Mr. Toobin tell that story himself, but I should note that our moderator today, Harvard law professor David Barron, played a central role in that drama, serving as he was at the time in the White House as the Acting Assistant Attorney General for the Office of Legal Counsel. Professor Barron, we thank you for being here today to moderate this discussion. [applause] As he did so brilliantly with his earlier best-seller, The Nine, Jeffrey Toobin lays bare the inner workings of the Supreme Court in riveting detail in his newest book, The Oath. Surprising at times and always even-handed, The Oath provides a deft analysis of the legal and ideological issues informing a fundamental debate currently playing out throughout the United States Judiciary over how best to interpret the United States Constitution through our changing times. Mr. Toobin paints a vivid portrait of not only the nine Supreme Court Justices and the interplay between them, but also the relationship between the Supreme Court and the White House. And, more specifically, between Barack Obama and John Roberts, whose personal lives are in some ways as remarkably similar as their views on constitutional issues divergent. What I enjoy most about Mr. Toobin's books -- and I could not put this one down -- is the interplay between the large sweep of history he so deftly details and the individual humanity of those who will determine our country's future, including snapshots of their tempers and their sense of humor. Allow me one brief anecdote on the latter:

2 PAGE 2 Before Barack Obama was inaugurated, Chief Justice Roberts invited him and Joe Biden to visit the Supreme Court so that they might be better acquainted. In one moving scene, we witness as Mr. Obama is shown the Supreme Court's conference table for the first time and asks, "Is this where they decided Brown?" "Indeed, it was." the Chief Justice told him. Towards the end of the meeting, Justice Anthony Kennedy extended a second invitation to the President Elect, noting the presence of a gym on the top floor of the Supreme Court building, he stated, "We hear you're a basketball player, and we'd like to invite you to play on the highest court in the land." [laughter] "I don't know," the President Elect demurred. "I hear that Justice Ginsburg has been working on her jump shot." [laughter] There are often narrative histories like this one when an author is perfectly matched for his or her subject. Jeffrey Toobin has been practicing his craft now for years as a staff writer for The New Yorker and as senior legal analyst for CNN, leading to this brilliant new book, which, to complete the basketball metaphor, is a perfect slam dunk. Ladies and gentlemen, please join me in welcoming Jeffrey Toobin and David Barron to the Kennedy Library. [applause] DAVID BARRON: Thank you, Tom, and thanks to all of you for coming. This is going to be a wonderful conversation, I trust; it's a wonderful book. But let's start at the beginning. In about two months, a little more than two months, President Obama will become the first person since Franklin Roosevelt to take the oath of office for the third time. [laughter] JEFFREY TOOBIN: I am so stealing that. [laughter] DAVID BARRON: You can't. That's all mine. Law professors only get one good line in life. JEFFREY TOOBIN: No footnotes on TV, baby!

3 PAGE 3 DAVID BARRON: And that's of course how the book begins, the fact that the first one didn't go quite as they had hoped. So tell us about what went wrong. JEFFREY TOOBIN: First of all, hello everyone. Delighted to be back at the fantastic Kennedy Library. It's such an honor to appear here, such a beautiful setting. And thank you, David, for agreeing to moderate. Okay, the botched oath. Well, this is really a story about a misdirected ; I mean, it really is, in many respects, as simple as that. Not too long after the election n 2008, Chief Justice Roberts and his top aide sat down and said, "Okay, we're going to have to do this oath; let's start getting organized." They saw that Chief Justice Rehnquist had done a card with the oath on it, where the pauses were marked. So they got Rehnquist's card and they started updating it with the correct name. They had to decide, did Obama want to use his middle name. They had to ask the question is "so help me God" a statement or a question? DAVID BARRON: The answer came back as JEFFREY TOOBIN: Was Roberts supposed to say, "So help you God?" Or, "So help you God." I mean, this is how in detail they went over this. And there was some communication with Greg Craig, who was the designated counsel to the President about whether Obama wanted to use his middle name. And also, of course, the whole question of "so help me God," that is not part of the oath. It's part of American folklore that George Washington, at the first inaugural, said it. But even that is historically questionable; it's not clear that he did. But certainly, Obama said yes, that he did want to say "so help me God." And all Presidents have said it subsequently. So anyway, Roberts and his assistant get the oath into final shape. They do a PDF, and it's attached to an that is sent to a secretary on the Congressional committee that is supervising

4 PAGE 4 the inauguration. That secretary deletes the , doesn't read it, or doesn't keep the attachment. In any case, the attachment with the card which you can see if you buy my book is never forwarded to Obama's staff, and Obama doesn't know how Roberts is going to divide up the words. So if you go on YouTube and watch the oath swearing, as I have two or three hundred times, you see that Obama interrupted Roberts before he expected him to stop. And Roberts, most uncharacteristically, became flustered. And the next line, "will faithfully execute the Office," that's the one Roberts completely botches. That's the root of the problem At the time, a lot of people criticized Roberts for not adequately preparing and not rehearsing. Completely unfair criticism. In fact, Roberts rehearsed so many times that his wife said to him, "At this point, the dog thinks it's the President." [laughter] So the botched oath is at noon on January 20, People comment on it, but it's a very busy day. There's the Inaugural Address, there's a luncheon, and the luncheon is actually, unfortunately, kind of a sad event because Senator Kennedy, whose memory we celebrate here, becomes sick. Then, of course, there are the Inaugural Balls, and it's Barack Obama's first day as President. The botched oath is almost forgotten until 10:30 the next morning when Greg Craig, who is now the White House Counsel, gets a phone call from the acting head of the Office of Legal Counsel at the Justice Department. And the acting head of the Office of Legal Counsel of the Justice Department said, "You know, this may be a problem." Now, you may ask, who was the acting head of the Office of Legal Counsel at the time? DAVID BARRON: Who was the acting head? JEFFREY TOOBIN: Who was the acting head? It was your friend and mine, David Barron. [laughter] Now, I don't want to embarrass David, because David, thank god, is unusual within the government in that he believes in certain confidentiality of government proceedings.

5 PAGE 5 Fortunately for us, they're not that many of them, so we have sources. So David doesn't want to talk about what went on, but in any case, David's phone call DAVID BARRON: But he's very curious to find out what went on. JEFFREY TOOBIN: What was particularly fun about writing this section of the book is that there were lots of people involved in this whole botched oath story that knew parts of it. You knew your part. John Roberts knew his part. But no one sort of had access to all the parts of it. So at 10:30, prompted by David's phone call, Greg Craig starts saying, "Gee, what are we going to do about this?" And he consults Daniel Meltzer, who was his deputy, also a colleague of David's on the Harvard Law faculty. Basically, they decide by mid-afternoon to call Roberts' assistant and say, "Would the Chief Justice be okay with redoing the oath?" And they think about it with some care. They say they want to do it in the Map Room of the White House which is actually part of the residence of the White House, not like the Oval Office, which is an official location because they wanted to sort of low-key it; they didn't want to make it seem like he wasn't really the President. So at 7:00, Roberts comes back. Robert Gibbs, who was the White House Press Secretary at the time, makes a rather fateful decision. He says, "I'm going to invite a press pool of reporters, four print reporters, but I'm not going to do television." So there is no video record of the second oath. There is only the audio record of one of the four reporters there, who was a reporter for the St. Petersburg Times, had a little pocket recorder and he turned it on. That's the only audio record of the second oath, which, I'm happy to say, was executed flawlessly. I will have to say that I may be the world's most interested spectator next January 20 th 21 st, actually, when they do it again, since I am now repository of oath trivia. The reason they're doing it January 20 th is the end of the term, but it falls on the Sunday and by tradition, when Inauguration Day falls on Sunday, they actually have the ceremony on Monday.

6 PAGE 6 DAVID BARRON: So the that's going over this time will not be deleted, we predict. JEFFREY TOOBIN: As you know, Obama was reelected [laughter/applause], so there isn't a transition office yeah, we're in a blue state, you can applaud. There's no transition, so I think the identity of the White House Counsel will be well known, and they'll know where to send the this time. DAVID BARRON: It's a great story, just as a story. But it's also the beginning of the book. And the book, unlike The Nine, isn't just a story of the Supreme Court; it's a story of a relationship between a President and the Court. The Oath, which is a very captivating phrase We talked some time back about why you picked that as the title and how it came to you. Just say a little bit about that. JEFFREY TOOBIN: Well, first of all, I'm a journalist who likes a good story, and the story of the botched oath and the redo, it's just a good story. It's entertaining, and it's a good way to, I think, open the book. But it also serves as a vivid and useful metaphor for the struggle that's going on right now, which is about the Constitution, which is about what the Constitution means. Starting with a very unsung figure in recent American history, and that's Edwin Meese, who was an aide to Ronald Reagan, Attorney General for a while, who came to Washington with Reagan in 1981 and said, "Look, we need a conservative agenda for the Supreme Court and for the Constitution." He was enormously successful, both in nominating justices to the Supreme Court and to the lower federal courts who reflected that generation and that agenda. Two of the best and the brightest young lawyers in that Reagan Administration were John Roberts and Samuel Alito, and that struggle between the conservative agenda and what remains of the moderate or liberal agenda at the Supreme Court, it's what The Nine was about, and it's what The Oath is about. DAVID BARRON: You say at the beginning There's an arresting passage at the beginning of the book, where you describe two different philosophies. One, you say, was an activist; one

7 PAGE 7 was kind of a radical. One believed in social change, making change; and the other was conservative, was much more prudent about how to go about change. And you say that the radical or the activist was Chief Justice Roberts, and that the more conservative of the two was President Obama, which comes as something of a surprise to some people, I'm sure. JEFFREY TOOBIN: It's meant to be. DAVID BARRON: So in what way? What's the difference? JEFFREY TOOBIN: If you look at what conservatives are trying to do at the Supreme Court and I don't suggest that there is anything illegitimate about this attempt. The story of the Supreme Court, the story of how the Constitution has developed over more than 200 years is a story of struggle, political struggle between at least two opposing sides. But there has been a conservative agenda in Washington at the Supreme Court ever since the '80s: Expand executive power. Speed up executions. End racial preferences intended to assist African Americans. Lower the barriers between church and state. And above all, reverse Roe v. Wade and allow states once again to ban abortion. That is an agenda for change. In most of those areas, conservatives are unhappy with the status quo in the Constitution. And the story of these last decades has been the conservative attempt to change in all these areas. And John Roberts is the leader of this movement for change. The paradox, and I think a somewhat problematic aspect of where liberalism is at the moment when it comes to the Constitution is, well, just sort of leave things the way they are. Just stop. And that's sort of what Barack Obama's agenda is at the Supreme Court, which is: Don't mess with Roe v. Wade; Don't declare racial preferences unconstitutional. It's not broken, so don't fix it. Now, he may be right that that's an appropriate attitude. But it is not exactly something that will mobilize many people, and it doesn't make for great oratory. I think one of the distinctive aspects of the Obama Presidency is that he never talks about the Constitution. So that's the basis

8 PAGE 8 of my drawing the distinction between one is the candidate of change and one is the candidate of stability. And Roberts and Obama fill those roles. DAVID BARRON: Now, running through this there is a philosophical debate as well over the Constitution and the meaning of it, and the Court's role in interpreting it. That's a little bit on a different angle of vision than the outcomes that people may wish, and that's another theme running through both books, is the role of originalism and attitudes about originalism versus what we might call a living Constitution, though that phrase is not something that even liberals embrace in the way that they once did. But I think it would be helpful to get that on the table. Maybe Chief Justice Roberts, with respect to originalism. So what is originalism? And what's his attitude about it? JEFFREY TOOBIN: Well, originalism is a way of interpreting the Constitution. I mean, the first real intellectual pioneer behind this idea was Robert Bork. But certainly the person most often associated with it is Antonin Scalia, who has brought it to the Supreme Court and popularized it. And certainly Justice Thomas is very much his ally in that regard. The basic idea of originalism is that the only intellectually honest, morally appropriate, judicially correct way of interpreting the Constitution, of understanding the words, what they mean, is to look at how the words were understood as in 1787, when the Constitution was written and ratified. Is that you have to understand what the framers thought that words like "due process of law" meant, and that is the only legitimate way of interpreting the Constitution. Now, you suggest the difference between the mode of interpretation and the results achieved by that interpretation. Invariably, the results reached by originalism tend to be politically conservative. If you are a pure originalist, it is safe to say that James Madison did not think he was creating a right of women to have an abortion in the late 18 th century, so there is no right to an abortion guaranteed by the Constitution. Now, the other view, which you characterized as the living Constitution I think it's indicative of how successful originalism has been that a living Constitution is something people are afraid

9 PAGE 9 to embrace. But the idea is the Constitution cannot be frozen in time. We live in a different world. The Constitution itself has been changed by more than 20 amendments. The world has changed, so you can't freeze the meaning in the late 18 th century. I have to say the best critique of originalism I ever heard came from Samuel Alito, of all people, who is a conservative, but not exactly an originalist. There was a case at the Supreme Court a couple of years ago. California had passed a law that said manufacturers of video games had to place warning labels if the video games were violent, and the manufacturers challenged this as a violation of the First Amendment, saying they didn't have to do that. A really momentous, momentous case. [laughter] Justice Scalia was asking questions of the lawyer, and Justice Alito, as he often does Justice Alito asks the second-fewest number of questions on the Court. Everybody knows who asks the fewest. [laughter] But in my opinion, Alito often asks the best questions. And so finally he jumped in and he said, "What I think Justice Scalia is asking you," he says to the lawyer, "is what did James Madison think about video games? Did he enjoy them?" [laughter] That is a very, very good question, because it gives a It's one of the big problems with originalism, which is how can you use a literal approach to what the framers thought in a world that is unrecognizable a world with the Internet, a world with automobiles, a world with I don't have to tell you about the technological advances of the last 230 years. So that's one of the great tensions. DAVID BARRON: The fact that Justice Alito asked that question is revealing of something about where the conservative Justices are at the present moment, because not all of them subscribe to the Meese philosophy, which was very much rooted in originalism. And Chief Justice Roberts himself, where does he stand with respect to that philosophy? JEFFREY TOOBIN: Justice Scalia sometimes refers to himself, in contrast to Justice Thomas, as a faint-hearted originalist. For example, the great case that is a problem for originalists is

10 PAGE 10 Brown v. Board of Education, because clearly when the Constitution was ratified, and even when the 14 th Amendment was ratified after the Civil War, segregated schools were completely accepted and appropriate, and all the framers thought segregated schools were fine. So how are you an originalist and how can you believe that Brown v. Board of Education, which is really one of the bedrocks of American constitutional law at this point That's where Scalia says, "I'm a faint-hearted originalist. I accept Brown. I'm not a total purist on these issues." Thomas is a total purist. I was at a synagogue a couple of years ago when Justice Scalia was doing an appearance and someone asked a very interesting question. The person said, "How would you contrast your judicial philosophy with Justice Thomas'?" And he talked for a while and then he said, "Look. I'm an originalist, but I'm not a nut." [laughter] I think that actually is a pretty good description of the differences between the two. As for Roberts and Alito versus Scalia and Thomas, I think this difference is more theoretical than real. They come out the same way on almost all big cases. But the route by which they get there is somewhat different. I would like to ask the former head of the Office of Legal Counsel and a constitutional law scholar, what do you think is the difference between the conservative approaches of Alito and Roberts versus Scalia and Thomas? DAVID BARRON: Well, I think precedent is a huge dividing point, what role precedent plays. Because, as you set it up, the situation is that a lot of the decisions that you talked about that they would like to reverse -- supposedly, the conservatives -- were in place and so to do that, you have to overturn prior precedents. So what is your attitude about precedent? Of course, that was very much at issue in the recent healthcare case. So let's talk a little bit about the healthcare case, because that shows there is actually a divide within the conservative Court and the conservative Justices on it. Chief Justice Roberts famously switched sides. Or did he switch sides is, of course, one question. But he came out to side with the four liberals on the Court to uphold the healthcare law, which was a very dramatic moment. You were in the Court, I think, that day.

11 PAGE 11 JEFFREY TOOBIN: I sure was. DAVID BARRON: So what was that like? You have been on record with JEFFREY TOOBIN: See, this is one of the problems of working at CNN, which is they keep the tapes of the stuff you say on TV. [laughter] So yes, I was very much on record being utterly wrong in my prediction. There were three days of arguments in March about the healthcare law. The central issue, or so it appeared, of the healthcare case was does the Commerce Clause of Article I of the Constitution give Congress the right to impose the individual mandate, the requirement that people buy health insurance. You folks, I assume most of you live in Massachusetts, so you have managed to live under this horrible yoke of government for many years under your former governor, Mitt Romney. [laughter] The fastest ticket to a where-are-they-now-in-history column, this guy is disappearing so fast. [laughter] And it can't be fast enough for the Republican Party, or so it appears. [applause] But I digress. [laughter] So the question was does the Commerce Clause justify, allow Congress to pass the individual mandate of the Affordable Care Act? And all the lower courts and in all of the argument before the Supreme Court, that was the central argument. The four conservative Justices who asked questions were very skeptical of the law, and those hotheaded, so-called experts on TV said, "Well, it looks like the law's in big trouble. This was a train wreck for the Obama Administration." DAVID BARRON: Plane wreck. JEFFREY TOOBIN: Well, that was the third day with the plane wreck. The second day was the train wreck. [laughter] Just for my career, not for DAVID BARRON: You'll be fine.

12 PAGE 12 JEFFREY TOOBIN: That's right. Anyway, and I have to say, I love being a journalist, but I have rarely loved being a journalist more than I did on June 25 th. The Supreme Court in its infinite wisdom does not allow cameras in the courtroom. They don't even allow audio. So it was just us in the courtroom. The Supreme Court courtroom, it's a magnificent room but it's not even that big. About half as many people as fit into this room fit into the Supreme Courtroom. So it feels like an intimate space. And I'll never forget, the press area is perpendicular to the bench; the spectator benches are parallel. And I was sitting on the press bench, and Orrin Hatch was in the first row. Everybody knew that this was the day; there was only one case left. Everybody knew that Chief Justice Roberts was going to write the opinion. And they come out from behind the red curtains. There are no exit polls; no one knew exactly what was going to happen. And Roberts starts reading. They don't read the whole opinion; they read summaries of the opinion. Roberts starts reading, and he starts talking about what appeared to be the main issue in the case, which was the Commerce Clause. He reads and the oral argument seemed to indicate that the Court was finding that the Commerce Clause does not justify the individual mandate. I'm looking at Orrin Hatch, and Orrin Hatch has the biggest smile on his face. But then, in really an unforgettable moment, Roberts says, "But the government has put forth an alternative justification for the law." And the alternative justification had been discussed really in passing. It was in the briefs, but it was really not discussed very much. Interestingly, Sonia Sotomayor was the only Justice who really was pushing it during the oral argument, and trying to get the lawyers to address it. The question was: Is the individual mandate justified under Congress's taxing power, which is different from Congress's power under the Commerce Clause? And as you all know, Roberts said, yes, Congress does have the right to impose the individual mandate as a tax. I watched Orrin Hatch's face fall, and that was it. DAVID BARRON: So why did he do that?

13 PAGE 13 JEFFREY TOOBIN: Well, let me give you three reasons. First, I think it's always important with Supreme Court opinions, take what they say at face value. Which is he was persuaded by the argument that it was a taxing power. But I also think it was something more than that. I think John Roberts sees himself, correctly, as the custodian of the Court's public reputation. And this case, to the broader public, was really part of a trilogy. It was Bush v. Gore in 2000, Citizens United in 2010, and the Obamacare case in It was a case where the Court was completely divided in the most politically charged environment conceivable. And Roberts knew if the five Republican appointees for the third consecutive time trashed the dreams of Democrats in a politically charged environment, it would really damage the Court's reputation. He knew further that the individual mandate was a conservative idea. It was an idea that came out of the Heritage Foundation. It had been supported mostly by Republicans for 20 years -- Newt Gingrich, the aforementioned Mitt Romney. And no one, no one, had ever suggested it was unconstitutional. This idea had been out there for 20-plus years and no one noticed it was unconstitutional? I mean, it was just a weak argument that it was unconstitutional. It was manufactured as an effort to defeat this bill, and that's all it was. And I think Roberts recognized that the damage to the Court's reputation would have been profound. And this being June of a Presidential election year, it would have thrust the Court into the middle of the campaign. Roberts didn't want to do it. So he voted the way he did. But I assure you, last June 25 th, John Roberts did not discover his inner moderate. He is a conservative. We will see that for decades to come. But in this unique circumstance, he did what he did. DAVID BARRON: Jeff, you watched the Court for so long. Had it come out the other way, what would have happened, do you think? JEFFREY TOOBIN: Look, one of my favorite quotes about the Supreme Court comes from one of my favorite Justices, Robert Jackson, who served on the Court in the '40s and '50s. He said, "We are not final because we are infallible; we are infallible because we are final." In other

14 PAGE 14 words, somebody has to have the last word. And that would have been the case if they had struck down the law. No one would have stripped the Supreme Court of its reviewing authority. They wouldn't have reversed Marbury v. Madison. They wouldn't have amended the Constitution. But the Court is a political player in this country, and the respect that the Court's judgments deserve I mean, one of the magnificent things about the Supreme Court and I have to say, as someone who is frequently critical of the Court's opinions and decisions, it's a small, small institution. You've clerked there; David clerked for Justice Stevens. If you add up all the people who work in the Supreme Court, it's maybe two, three hundred; you count all the clerks, all the police officers. I mean, it's a very small part of the federal government. So it only relies on the agreement of people to follow their decisions, and that's a very precious resource that the Court has, this institutional respect. That is something that can be lost. Even more specifically, to answer your question, Obama, had the Court ruled against him, would have made the bad Supreme Court a serious issue in this campaign and would have been attacking the Justices, and would have been attacking the Court's decision. I think that's not a position the Court wants to be in. Now, I don't suggest that the Justices act with that exclusively in mind, because that would be inappropriate, but they also have to be aware of that. Kenneth Starr, who I'm not in the general practice of quoting [laughter], suggested the other day that if Roberts had been an Associate Justice but not Chief Justice, he might have come out a different way in that case, and I think there's something to that. DAVID BARRON: You mentioned the trilogy, and you've written about Bush v. Gore, but I want to talk about Citizens United, which is the other piece of it. In some ways, that raised the temperature between the Administration and the Court in a way that hadn't really become visible and a subject of discussion in quite a long time, I think in a way most famously during the President's State of the Union speech and Justice Alito's, I guess, shaking his head or something was captured on tape that night. Tell us a little bit about Citizens United and where that left the Court and the Administration and their relationship.

15 PAGE 15 JEFFREY TOOBIN: Well, Citizens United is, most importantly, a great gift to a journalist. So many strands of the Supreme Court's history and present come together in that case. It was the first case ever argued in any court by Elena Kagen, who was at that point the new Solicitor General. It was the first case heard by the new Justice Sonia Sotomayor. It was the last important dissenting opinion written by Justice Stevens. It was the first case argued twice in well more than ten years at the Supreme Court. And it was a case that revolutionized political campaigns in the United States. And so, you had all these strands running together. So to answer your question DAVID BARRON: Before you answer, I have an even better question. On Citizens United, you tell a very fascinating story about how the Chief came to write Citizens United, and that it didn't start off as a case as revolutionary as it ended up. How did that happen? JEFFREY TOOBIN: This is where I think the behind-the-scenes stories of the Supreme Court can really tell you something about what's going on. Again, another reason why Citizens United is so interesting is the facts of the case are so bizarre. Citizens United is sort of this fringe, right wing organization that makes movies. They make movies, very conservative movies. The head of Citizens United had seen the success of Fahrenheit 9/11, Michael Moore, a liberal movie, and he said, "I want to make the conservative Fahrenheit 9/11, and he made what he called Hillary: The Movie, which was a movie about Hillary Clinton, and it had lots of spooky music. It was very condemnatory of Hillary Clinton. They wanted to show it in the lead-up to the 2008 primaries. Well, under the McCain-Feingold bill law -- political commercials sponsored by independent groups can't be shown within 30 days of an election, and they said this was not a documentary, it was a commercial. So Citizens United went to court to challenge it. Now, pause here. This is a very weird, unusual case that could have been decided very narrowly. I mean, Citizens United is a nonprofit corporation. The Supreme Court could have said, This is a movie. It's not a commercial, so it's not even covered by the McCain-Feingold law. They could have said a nonprofit corporation is not covered the way for-profit corporations are covered. And the liberals of the Supreme Court basically thought that's what this case was about.

16 PAGE 16 Well, the case gets argued the first time, and there's sort of a tumultuous argument. Chief Justice Roberts assigned the opinion to Justice Kennedy, and Justice Kennedy writes what we come to know as Citizens United, which is that corporations have the same rights as people, that money is speech and McCain-Feingold is unconstitutional. Well, the liberals, in their sort of decorous way, pitch a fit. They say, "Look, this case was not about that. This is a very narrow case. You just can't use a narrow case like this as a vehicle to rewrite the laws." And Justice Souter, who was at that point about to leave the Court, writes a dissenting opinion that sort of washes the Court's dirty laundry in public a little bit. Chief Justice Roberts, again very careful about the Court's public reputation; he doesn't want this dirty laundry washed in public. So he says, "I have an idea. What we're going to do is we will agree to have the case re-argued, but I will do new Questions Presented; that is, I will define the issues in the case in the broad way that we know that we want to decide them. So you can't claim, you liberals, that you're being sandbagged, because everybody will know right from the beginning what the stakes are in this case." What are the liberals to do? They have to agree to it. I just think it's an exquisite example of how crafty John Roberts is as a leader of the Court. He forestalls the washing of dirty linen, but he gets the results he wants anyway because the case is re-argued; Elena Kagen argues it. But it's obvious how it's going to come out, because they'd already voted on it. They vote on it again and DAVID BARRON: They ask her during oral argument, "Do you have a preferred way of losing this case?" And she says, "You bet we do." JEFFREY TOOBIN: Right. And the Court in its opinion says, "You're going to lose this case and you're going to lose it our way, not your way." And so they lose it broadly, and I think the Court didn't quite realize -- certainly, Justice Kennedy didn't realize -- quite the hornet's nest that they stirred up with this case until afterwards.

17 PAGE 17 Just to shift slightly, when Justice O'Connor left the Court We talk a lot about diversity on the Supreme Court, as well we should. But it's defined too narrowly. We talk about diversity of gender, we talk about diversity of religion, we talk about diversity of race. But there's not enough occupational diversity on the Court. The Court that decided Brown v. Board of Education in 1954, not one of the Justices had ever been a full-time judge of any kind. Think about that, not one of them. Earl Warren was governor of California. Hugo Black was a Senator. William O. Douglas was head of the SEC. These were people who had led big lives in the real world. When Justice Alito replaced Justice O'Connor, all nine Justices were former federal appeals court judges. Justice O'Connor had run for office. She understood politics in a way that none of the current Justices do. So Justice Kennedy could talk about campaign spending in this abstract way and money is speech, and all that. O'Connor understood Let me tell you want campaign contributors think. Let me tell you what they expect for their money. So I think the Court has so desperately missed that perspective. Kennedy, in writing in these abstractions in Citizens United, did not realize what a transformation this would be for how campaigns are run. DAVID BARRON: You mentioned Justice O'Connor having left the Court and Justice Stevens has obviously left the Court. There's a way in which we can talk about just the vote shift, replaced by a more conservative Justice in the case of Justice O'Connor. But you're also raising the point about the deeper effects of a change in the composition of the Court when people with certain kinds of life experience, certain history, are gone and they're not there to have that voice in the conference room going forward. How has it changed, with Justice Stevens in particular and Justice O'Connor not being there? JEFFREY TOOBIN: To me, the biggest change at the Supreme Court reflects the biggest change in American politics, which is the evolution of the Republican Party. Moderate Republicans dominated the Supreme Court for decades, whether it was Potter Stewart in the 1960s, whether it was the Lewis Powell in the '70s, whether it was Sandra Day O'Connor in the '80s and '90s. They are gone. They're gone from the Supreme Court, just like they're gone from the United States Senate.

18 PAGE 18 Think about it here in New England. New England was the center of moderate Republicanism, whether it was Ed Brooke here in Massachusetts, or Robert Stafford in Vermont, or Don Chafee in Rhode Island. They had an enormous impact. Scott Brown tried to revive that. And it's just gone. It's just gone. To me, what's so illustrative is you look at the last three Justices to leave the Supreme Court. Three more different human beings. I mean, you had the privilege of being at the Court with all three of them. But think of it: Sandra Day O'Connor, this tall, charismatic, outgoing politician from Arizona; David Souter, the shy, reclusive bachelor from New Hampshire; John Stevens, this wily antitrust lawyer from Chicago DAVID BARRON: Are you working on a script? [laughter] JEFFREY TOOBIN: No. It's great, right? I mean, they're so different. But what thing do they have in common? They were all moderate Republicans, and they all left the Court completely alienated from the modern Republican Party, Souter and Stevens so alienated that they gave their precious seats on the Court to a Democratic President. And that, to me, is the biggest change at the Court. DAVID BARRON: So let's talk about the liberal side of the Court and the two new Justices, Justice Kagen and Justice Sotomayor. But also, there was a time when stories were being written about Justice Stevens. It was the Stevens Court in some way because he was emerging as a very significant leader, not only of the more liberal wing of the Court, but of the Court as a whole, because he was winning majorities in a lot of these cases. Is there a leader of the opposition, so to speak, on the Court? What's the state of the liberal wing of the Court? JEFFREY TOOBIN: It reminds me of Justice Brennan's famous question to his law clerks every year. He'd always ask his clerks, "What's the most important rule of the Supreme Court?"

19 PAGE 19 And they'd say, "Oh, I don't know, freedom of speech? Equal protection?" And then he'd finally say, "Five! With five votes, you can do anything you want around here." [laughter] There are only four liberals. I mean, that's what's most important. They will get a majority occasionally. We've already talked about healthcare. I think that ticket was good for that train only, and I don't think we'll be seeing that train again with Roberts and those four. Obviously, Justice Kennedy is the swing vote in many areas. I think people sometimes mistakenly refer to Justice Kennedy as a moderate. He's actually not a moderate. He's actually rather extreme in his views; he just has varied enthusiasms. [laughter] Some of them are actually pretty liberal. He is the author of the two most important gay rights decisions of the Court. On the death penalty, he has often sided with the liberals. On the Guantanamo series of cases, he was with the liberals. But by and large, he is a conservative. So by seniority, Ruth Bader Ginsburg is now the senior liberal on the Court, and I think her opinion in the healthcare case it was mostly a concurring opinion was a very impressive piece of work. But I just don't see a scenario where she will be able to lead a block. I mean, Kennedy will join her now and then, but that's really up to Kennedy, that's not up to her. DAVID BARRON: At various times in our history, there have been Courts that have really not gotten along -- the Court where Frankfurter and Jackson were fighting, very famously. JEFFREY TOOBIN: Nine scorpions in a bottle, as they were known. DAVID BARRON: Yes. And it became very public how much dissension there was. And the President was very worried about having a dysfunctional Supreme Court. Obviously, that's not the situation today, at least from your books and my own experience of it. But what is the state of the relationship among the Justices with each other? Did you get a window on that?

20 PAGE 20 JEFFREY TOOBIN: Here I think the real innovator was William Rehnquist when he was Chief Justice. Rehnquist was of the belief that, "We're nine very opinionated people, and we're not going to agree. And let's just agree to disagree in a civilized way." And he basically set up a system where good fences make good neighbors. The Justices don't interact with each other that much. I interviewed a lot of law clerks for this book, as I did for The Nine, and one of the things they almost invariably said to me was, "I was surprised by how little communication there was among the Justices." They don't hang out in each others' offices. They communicate rather formally by memos about the opinions. That actually has been a good thing for the Court, I think. Rehnquist was on the Court under Warren Burger, and Warren Burger got in the other Justices' faces more than they liked. There were not firm rules about who It was often unclear who won, what the decisions were. The other thing Rehnquist did was he engineered a tremendous reduction in the Court's workload. This is no joke. In the '80s, the Court was deciding about 150 cases a year. Last year, they decided 68 cases. Do the math. Sixty-eight cases divided by nine Justices, divided by four; it's like a cushy job being on the Supreme Court. [laughter] They like that. I think Roberts has basically kept up the sort of good-fences-make-good-neighbors policy. They don't bother each other. They just sort of go about and do their work. They agree; they disagree. There were some reports after the healthcare case that, oh, the Court is split and Scalia is so angry. It's nonsense. Sure, he was angry. He didn't want to lose, but what's he going to do? Start voting with the liberals to punish Roberts? It just doesn't work that way. They are strategic enough thinkers that they don't go out of their way to alienate each other. DAVID BARRON: At the same time that there are only 68 cases, you should say a little bit if you know why that's happened. I think for a lot of people it's sort of a mystery why the docket of the Court has shrunk to the degree it has. Some people think it has to do with the kind of professionalization of the Supreme Court bar, that the lawyers There's a very small circle of

21 PAGE 21 lawyers who now handle these cases, and they're very attuned to how to present a case to the Court. But even though it's a small docket, it's a really amazingly important docket, even relative to recent terms. They're taking big cases now. So this term, coming up, they've already taken the Voting Rights Act case, whether the Voting Rights Act is constitutional. They just did the healthcare case. People think, I think even some of the Justices have suggested, that there's a high likelihood they'll have a Defense of Marriage Act case, or something like that. These are the major issues that are on their JEFFREY TOOBIN: The future of affirmative action. DAVID BARRON: The future of affirmative action they have right now. So I wanted to get your predictions on some of these cases. But before getting into those, it's interesting that Chief Justice Roberts and his fellow Justices aren't shying away from being in the spotlight. One strategy for a Court where the temperature's rising would be to just take lower profile cases. That's not at all what's happening. What's their idea of being so central in the major issues of our time? JEFFREY TOOBIN: As David suggested, no one has a perfect explanation about why the workload is One thing Rehnquist did do in a very practical sense, there used to be certain laws that required the Supreme Court to take certain kinds of actually not very significant cases. Rehnquist lobbied Congress to change those laws, and those cases have gotten rid of about 10 or 15 cases a year. But that doesn't explain the full drop. Another explanation is that the circuit court of appeals have all gotten so conservative that you don't have disagreements among the circuit courts of appeals as often as you used to, and disagreements between the circuits is one thing the Supreme Court has always resolved. As for taking the big cases, I just think they have to do something; they have to justify their existence in some way. Also, when you have something like DOMA, the Defense of Marriage Act case, one thing the Supreme Court has pretty much always done is when a circuit court of appeals declares an act of Congress unconstitutional, they are virtually obliged to review that.

22 PAGE 22 And now there have been at least two circuits that have declared the Defense of Marriage Act unconstitutional. So it's really inconceivable to me that they won't take one case there. I also think, particularly the conservative majority One of the things, particularly Justice Kennedy, Justice Kennedy is not someone who really is afraid of exercising his power as a Justice. I mean, he is someone who really believes that judges can decide a lot of things. One of the things that used to be what it meant to be a judicial conservative is the concept of judicial restraint defer to the democratically elected branches of government. Whatever you think about Justice Kennedy, pro or con, he is not an advocate of judicial restraint. Whether it's telling the President, "You can't run Guantanamo that way," whether it's telling the State of Texas, "You can't ban consensual sex between gay people," he is someone who is not afraid to tell the other branches of government what to do. So he is not going to shy away from big cases DAVID BARRON: What do you think is going to happen with the Defense of Marriage Act? There's also this California Proposition 8. JEFFREY TOOBIN: I think it's important to look at them in two ways. DAVID BARRON: Maybe describe them. JEFFREY TOOBIN: There are sort of two sets of cases under the broad issue of same-sex marriage that the Court is going to decide whether to hear. Defense of Marriage Act, passed in 1996, says the federal government will not recognize same-sex marriages, even in states where it's legal. So the leading case actually comes out of the First Circuit here in Boston, and it's a very simple case. As I'm sure many of you know, under the Internal Revenue Code, married couples, if one of the couple dies, their property goes tax-free to the surviving spouse. Two women were married here in Massachusetts. One of them died. Under normal IRS rules, the property would have gone taxfree. And those two women, remember, were as married as any heterosexual couple in the State

23 PAGE 23 of Massachusetts, precisely the same situation, except they are two women. But under the Defense of Marriage Act, the IRS couldn't recognize the marriage, so the surviving spouse had to pay a substantial amount of taxes on the inheritance. She sued. She won in the First Circuit; they declared the law unconstitutional. I think they are going to take that case. As I said, they're virtually obliged to take it. And I think Justice Kennedy, who will be the swing vote there, will declare Defense of Marriage Act unconstitutional. It is very hard to justify at this point, other than just a form of discrimination against gay people. And Kennedy has made clear, I think, that he just doesn't think that's a legitimate justification for government action. The political context here is very important though. The Defense of Marriage Act case, the law only applies in states that already have same-sex marriage, which are now nine states as a result of the three states that were added last Tuesday. The other states are completely unaffected by the Defense of Marriage Act case. The Proposition 8 case is very different. There are various ways of looking at it, but in simple terms, basically what the plaintiffs say in the Proposition 8 case is that under the Equal Protection Clause of the Constitution, you can't tell gay people they can't get married, that it's just a form of discrimination prohibited by the 14 th Amendment. If they were to take that case and decide that there is a right to same-sex marriage, that would mean there was a right not just in California, but in Mississippi and Alabama, too. And I don't think they are ready even the Justices who would be favorably disposed towards that argument to take the backlash. They can see the writing on the wall. They see that same-sex marriage is happening. Just parenthetically: Before last Tuesday, same-sex marriage was on the ballot 33 times in various states. It had lost all 33 times. It was on the ballot in four states last Tuesday Maine, Minnesota, Maryland and Washington. It won all four. That's an incredible change in this country. Now, yes, they're sort of bluish states, but they're not Massachusetts and they're not Vermont. [laughter]

24 PAGE 24 The country's changing before our eyes on that issue. And it's worth remembering, they didn't outlaw laws against racial intermarriage until 1967, Loving v. Virginia, by which time those laws were on their way out. I think even some of the liberals think, Let's just let the political process take its course. If they deny cert, if they refuse to hear the Proposition 8 case, same-sex marriage will become legal in California. That will mean it will be legal in ten states. Almost a third of the country in terms of population will live in a state that has same-sex marriage. I think people will realize that the sky has not fallen. Barney Frank likes to say the only thing that happens to heterosexuals when same-sex marriage is legal is that you might have to get a present for the lesbians across the street who get married. [laughter] I mean, it doesn't affect people that much. So I think they'll take the DOMA case. DAVID BARRON: You think they'll deny cert? JEFFREY TOOBIN: Deny cert in the California case. I don't think they want any part of that case. DAVID BARRON: Interesting. So let's talk a little bit about what may happen during the next four years in terms of the composition of the Court. So far you've been fortunate that it seems to be changing right on time for each new book. [laughter] JEFFREY TOOBIN: Let's keep in mind what matters to me, yes. I don't care how they come out. That violent video games case? That was the big case of the term before the healthcare and I'm thinking to myself, If I had a book coming out, this was the big case I was going to write about? I mean, no one cares. I'm sorry, go ahead. DAVID BARRON: Is the thinking that there will be changes in the composition of the Court over the next four years? In what way? And who are some of the people that are imagined replacements?