Roe v. Wade, Bush v. Gore, Obama v. Clinton and Toobin v. Delay were just some of the topics addressed recently when Jeffrey Toobin—CNN analyst and author of The Nine: Inside the Secret World of the Supreme Court—sat down for a candid conversation with Law Center Chancellor Jack Weiss.
Toobin arrived 10 minutes late to the scheduled 2 p.m. forum in the student lounge because of travel delays but hit the stage straightaway, starting the discussion with a recollection of studying for the bar and constantly hearing “this applies everywhere except Louisiana.”
Talk turned quickly to the upcoming presidential election and its impact on the Supreme Court. A win for Barack Obama or Hillary Clinton would, Toobin said, lead to a much more liberal Court. A win for John McCain, however, would further solidify the conservative movement in the Court, which, Toobin said, is the central theme to his book The Nine.
“The Bush presidency will be remembered for two things – the War in Iraq and the appointments of (Samuel) Alito and John Roberts,” said Toobin. “They may be only two (appointments) but they are very significant appointments. That (conservative) movement (in the Court) is a result of an intellectual revolution in conservative thought and a determined effort to change the Court.
“I think (the Court) is hanging on the edge of a precipice,” he added. “It’s not over it yet … but it’s close.”
Toobin went on to add that a Clinton win would more than likely lead to an appointment of Obama to the Supreme Court. An Obama win, however, would probably not do the reverse for Clinton, whom he believes would be too old at the age of 62 next year.
On the topic of presidential elections, a majority of the discussion was devoted to the 2000 election and the subsequent case of Bush v. Gore, which is covered in The Nine, as well as his previous book Too Close to Call: The 36-Day Battle to Decide the 2000 Election.
“I admit to a certain Bush versus Gore obsession,” Toobin said. “I tried desperately to interview Vice President Gore. I worked every connection I had and he absolutely refused to comment. (Later) I ran into him and said I was writing about it again, and that I might be the biggest Bush v. Gore junkie.
“He said, ‘Well, you might be the second.'”
While The Nine may not have a conventional plot along the lines of fictional work, it does have a protagonist.
“I have a tremendous admiration for Justice (Sandra Day) O’Connor,” he said. “She understood that the Court was an anchor not to be dragged too far in any direction … and thought it should reflect public opinion.
“If you look at her record on the Court, it was very much her belief on where the country was at the time.”
Other topics discussed during the talk were Toobin’s thoughts on possible vice presidential candidates and how the upcoming election could shape the future of Roe v. Wade. Given a shift in focus on the Court – i.e. a change from four conservative members, one moderate, and four liberals to a conservative majority – Toobin said he believed it could be overturned.
The final segment of the session was open to questions from the audience. Toobin was asked whether he had any ethical qualms about interviewing the justices’ law clerks for information.
“No,” Toobin said, adding, “I have a sliding scale rule on Supreme Court deliberations. Brown v. Board of Education … there is zero interest in preserving confidence (about) what went on.
“On the other hand, I would never ask about a pending case. Internal deliberations are of great public interest, but I also understand the importance for justices to get unfettered advice form their clerks. These are big boys and big girls. Many will say ‘No way, not going to talk about this. Click.’ Okay, I’ll move on. But I don’t have a problem asking about past cases where clerks will talk.”
The Nine is Toobin’s fourth book and has spent more than four months on the New York Times best seller list. It was also named one of the 10 best books of the year by the New York Times Book Review, Time, Newsweek, Fortune, Entertainment Weekly and the Economist.
Toobin currently serves as a staff writer at The New Yorker, where he has worked since 1993, and as a senior analyst for CNN, a role he has filled since 2002.