Jeffrey Toobin offered a retrospective on the U.S. Supreme Court.
Wherever he goes these days, CNN legal analyst Jeffrey Toobin is often asked the same question: How does he think President Barack Obama is doing?
He answers with a question of his own: “Does anyone remember what happened on May 3rd, 2003?”
The response is usually similar to the puzzled looks his question elicited from an audience at Packard Auditorium Wednesday evening.
“That was the day George W. Bush landed on an aircraft carrier off the coast of San Diego to declare ‘Mission Accomplished’ in Iraq,” Toobin said. “At that time, all everyone was talking about was how this would be the defining symbol of the Bush administration, and damn, we were right.”
The lesson he hoped his audience drew was that it was far too early in the Obama administration to offer any realistic assessment, and that the new president is likely to be challenged by a series of unanticipated threats, crises and concerns over the course of his presidency.
Such was the case with George W. Bush and every president who preceded him, Toobin said. But all had the potential to shape the U.S. Supreme Court, which acts as final arbiter on major issues that impact the lives of every American.
From left to right
Toobin, an expert on media, politics, and law, provided a 50-year retrospective on the Supreme Court and offered theories on an Obama court during his hour-long lecture. He also fielded a series of questions on the politics and personalities of the nine men and women who currently make up the highest court in the land.
During the late 1960s, the Supreme Court acted as a unified ideological force, Toobin said, frequently ruling with a decidedly liberal agenda. During that period, key rulings handed down established the right of privacy of every citizen (Griswold v. Connecticut), established a standard of malice that had to met in press reports before they could be considered defamatory or libelous (New York Times
v. Sullivan), and established the rights of the criminally accused (Miranda v. Arizona).
“And, in what is perhaps the best-named case in the history of the Supreme Court—Loving v. Virginia—the court ordered that states could not ban interracial marriage,” Toobin said.
Former President Jimmy Carter was the only full-term president who did not have the opportunity to appoint a Supreme Court justice, but one of his predecessors—Richard Nixon—had four chances, which began the evolution of the court toward a more conservative ideology.
That ideology was further cemented under the Reagan administration and both Bush administrations, leading to the current make-up of the court, which, Toobin said, tends to view decisions through a conservative lens.
“In many ways, the dividing point of both the current court, and, in fact, the history of the country, came in 2000, when the Supreme Court decided the presidency through Bush v. Gore,” said Toobin, whose previous bestseller, Too Close to Call: The 36-Day Battle to Decide the 2000 Election
, chronicled the contentious battle between George W. Bush and former Vice President Al Gore.
Admittedly, Toobin said, “I’m obsessed with this decision, and when I was writing my book, I tried to interview Al Gore countless times. I begged, I pleaded, I worked my connections, but I could not get him to agree to an interview.”
By coincidence, Toobin did cross paths with Gore when he wrote The Nine
, his current bestseller on the Supreme Court and the controversial decisions that mark its history.
“I told him I’m the biggest Bush v. Gore junkie, and, without missing a beat, he said, ‘You might be the second,’ ” Toobin recounted.
The period from 2000 to 2005 marked a period of liberal ascendancy in the court, Toobin said, and he credits much of that development to Sandra Day O’Connor, the first female justice, who was named to the Supreme Court in 1981 by President Ronald Reagan.
“Think about the major rulings during this time, and how many of them were decided 5 to 4,” he said. “They ended the death penalty, upheld affirmative action—in case after case, they rejected the Bush administration. Why? Because O’Connor became increasingly alienated with the Bush administration and its policies, particularly the Terri Schiavo case.”
In that controversial case, intervention by a number of political groups prevented Florida resident Michael Schiavo from taking his wife, Terri, off life support, even though medical experts agreed she was in a persistent vegetative state.
“It was all about medical decisions being taken out of the hands of the family members who cared for the patients, and that directly paralleled with O’Connor’s husband falling under the grip of Alzheimer’s,” Toobin said. “The case had very personal significance to her.”
O’Connor’s resignation from the court in June, 2005, and the death of former Chief Justice William H. Rehnquist three months later, led to the appointments of Samuel Alito and current Chief Justice John Roberts.
Three of the four remaining liberals on the court are about to depart, presenting President Obama with the rare opportunity to reshape the court yet again. Judging from his established patterns of behavior, Toobin predicts that Obama will return to an earlier tradition of appointing those who have not served as justices on inferior court panels.
“Who knows? We might see a Tim Kaine, governor of Virginia; or a Jennifer Granholm, governor of Michigan; or a Deval Patrick, the governor of Massachusetts; or even a Janet Napolitano,” Toobin said. “Just think: Janet Napolitano was a former U.S. attorney in Arizona, the attorney general of Arizona, a former governor of Arizona, and now the secretary of Homeland Security.”
But perhaps most intriguingly, he said, Napolitano once served as lawyer for Anita Hill, the young attorney who ignited the sexual harassment scandal that erupted during confirmation hearings for current U.S. Supreme Court Justice Clarence Thomas.
“Can you imagine those meetings?” Toobin asked. “Oh, to be a fly on that wall.”
Toobin’s talk was sponsored by the Lehigh University Friends of the Libraries and the university’s Visiting Lecturers Committee.
Photo by Douglas Benedict