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Guest: Jeffrey Toobin

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Listen Now

 The future of the United States Supreme Court will be determined by the 2008 presidential election, says legal reporter Jeffrey Toobin. The next President’s choice of Justices will have profound consequences because, he says unequivocally, “The Court is a political institution.”“(Supreme Court Justices) can make good rules or bad rules, but they are making the rules and no one should be mistaken about that. One of my favorite sayings about the Court is Justice Robert Jackson’s, ‘We are not final because we are infallible. We are infallible because we are final.’“There is no such thing as law independent of politics or independent of ideology,” Mr. Toobin continues. “(Today) you have a situation where the Court is divided and polarized more than it’s been in a long time. Roberts, Alito, Scalia and Thomas on the conservative right. Stevens, Souter, Breyer and Ginsberg on the left. Kennedy in the middle, usually siding with the conservatives. Justice Stevens is 87, Justice Ginsberg is 76. David Souter is 70 and doesn’t enjoy the job very much. So we are likely looking at three of the four liberal justices leaving in the next few years.“If a Republican is elected president in 2008 and appoints those three replacements, we’re looking at easily a generation of very conservative justice. Even if the Senate remains Democratic, the Justices will be conservative.“The only way the Democrats are going to be able to reshape the Court is not through having senators fighting with the president over appointments. It’s by having presidents making appointments.”“Frankly I think that's how it should be, because the Framers set up a system where the President gets to put his or her stamp on the Court. There is no such thing as law independent of ideology or politics.”Mr. Toobin is careful in how he talks about Constitutional law.“Outside a certain sort of basic agreement that everybody has, (Supreme Court decisions are) not about right and wrong. These are choices, largely political choices, the Justices make. And I think we need some truth in labeling.“The Justices identified with ‘originalism’ are chiefly Justice Scalia and Justice Thomas. The subtext of originalism is a conservative political agenda. I don’t doubt the sincerity of the originalists, but let’s not kid ourselves about whose interests are served by originalists.”Mr. Toobin’s book length examination of the 2000 Presidential election is a timely example of political considerations in Supreme Court decisions.“One thing Justices owe us is ideological consistency. If you're going to be in favor of state's rights, if you're going to be against an expansive reading of equal protection clause, you have to do it in a case where a Republican's ox is gored as well. (In Bush v. Gore), I don't think the majority did. 


 Mr. Toobin does all democracies a service in pulling back the curtain behind which the U.S. Supreme Court is too often veiled. For doing so in his book The Nine and in conversation with us, we are appreciative.We also thank Mr. Toobin for his careful reporting in the early 1990s, when he clearly articulated the inadequacy of the attention given then to the Iran-Contra scandal. It was, by his recent telling, the origin of the current and ongoing story of the Executive branch trying to expand its powers at the expense of Congress. That story is a vivid reminder of the vital role of an independent judiciary, one we must keep trustworthy if it is to reflect the will of the sovereign people -- all of us, not an isolated or privileged few -- under the masterfully adaptive United States Constitution. 

Related Links

 The Nine: Inside the Secret World of the Supreme Court is published in hardcover by Doubleday and softbound by Anchor Books, both Random House imprints.In Broken Government, John Dean examines how successive Republican administrations have damaged all three branches of the Federal government. His particular concern is the judicial branch and the four fundamentalists, as he names them, currently on the Supreme Court (Scalia, Thomas, Roberts and Alito).Robert A.G. Monks' understanding of the role played by the Supreme Court in creating and sustaining the legal fiction of corporations-as-people is part of what led him to write Corpocracy:  How CEOs and the Business Roundtable Hijacked the World's Greatest Wealth Machine— and How to Get It Back. As demonstrated in their early decisions, the two most recent appointments to the Court (Alito and Roberts) are supportive of business rights and much less so the rights of employees.Thom Hartmann has also written about how big corporations have come to dominate the American legal system and, thereby, its politics.The long-standing commitment of the Republican Party to big business and that commitment's impact on America is clearer in the context provided by historians David Nasaw (Andrew Carnegie), David Canadine (Mellon) and Ron Chernow (Ttitan) among many others.Arianna Huffington is also a recovered Republican.And, here's a little background information on Paula Gordon and Bill Russell, the Program co-hosts. 

This Program was recorded on Monday, October 1, 2007 in Atlanta, Georgia, US

Tags: division of powers fundamentalists ideology Jeffrey Toobin originalists Supreme Court The Nine