ALISON STEWART, host:
Hey, they're back. On this first Monday in October, the Supreme Court convenes for a new term today. The court has accepted 43 cases so far, but will likely hear about 70 by the end of the term in June of '08.
Now, in the coming months, there will be discussions and decisions made about porn, lethal injections and job discrimination. Today, there's actually a lot of discussion about Justice Clarence Thomas' new memoir and that interview on "60 Minutes," as well as Chief Justice Robert's transformation of the court, as well as the number five book on the New York Times' bestsellers list, "The Nine" by Jeffrey Toobin.
LUKE BURBANK, host:
STEWART: Hmm. Staff writer for the New Yorker and a senior legal analyst for CNN, and our guest on THE BRYANT PARK PROJECT. Hi, Jeff.
Mr. JEFFREY TOOBIN (Author, "The Nine: The Secret World of the Supreme Court"): Hey, Alison. How are you?
STEWART: I'm doing just great. So I had your book out. A friend of mine was over yesterday. Looked at the title, "The Nine," and she said, ooh, that sounds like a mystery when she looked at the cover. Is there something mysterious and really unusual about this particular court?
Mr. TOOBIN: Well, yeah. I mean, there's always a lot of mystery about the Supreme Court because they do their part to remain publicly largely invisible, except through their written opinions. But, you know, my book is an attempt to demystify the court to a certain extent. And, you know, it also is about just how important it is now more than ever.
STEWART: We talk about the Supreme Court as this revered institution, but it's nine individuals with moods and quirks. You know, Justice Souter is a little bit of luddite. Doesn't really know about Coca-Cola and…
STEWART: …and moves his chair around and catch the light.
BURBANK: That's not a luddite.
(Soundbite of laughter)
Mr. TOOBIN: Yeah, I know. You know, this is a guy, when he arrived in the Supreme Court had never heard of Diet Coke. At a wedding in 2003, he revealed that he had never heard of the singing group called The Supremes. You know, he does live a sort of 19th century lifestyle. But, you know, he manages to transcend that. He is actually the author of the opinion in the Grokster case about file sharing, which is actually one of the more successful attempts to deal with technology in the court. So, you know, this is the guy who is able to rise above his luddism, as you've put it.
(Soundbite of laughter)
STEWART: Who do you think is the most influential justice at this point?
Mr. TOOBIN: Oh, that's easy. Anthony Kennedy. I mean, now, you have four strong conservatives on the court. You've got Justice Thomas, Justice Scalia, Justice Roberts and Justice Alito - four liberals: Justice Souter, Justice Breyer, Justice Ginsburg and Justice Stevens, and Anthony Kennedy decides most of the cases before the court now.
STEWART: At this point - I have a friend who is an OB-GYN, and we were having a conversation. Just out of nowhere, she goes, how old is Justice Stevens, anyway? Obviously…
Mr. TOOBIN: Eighty-seven.
STEWART: Yeah. She's obviously concerned about abortion rulings, as someone who performs that medical procedure. He is 87 years old. People obviously concerned about - people who are concerned about abortion rights, I should say - are concerned about who will be the next justice should he pass away. How is his health, by the way?
Mr. TOOBIN: Well, his health is outstanding, and a fun fact about Justice Stevens is that his older brother, William Stevens, is still practicing law in Florida at the age of 90. But, look, 87 is 87. And I think it's safe to say that the next president - I mean, the stakes in the 2008 election are enormous.
I don't think there are going to be any appointments in the next year. But the next president is likely to replace Justice Stevens, Justice Souter, Justice Ginsburg - three of the four liberals. If a Republican picks those three, the court is going to be very conservative for a generation. Rove v. Wade is almost certainly going to be overturned.
Though, you know, this book, in many respect, is a book about the 2008 election because it outlines the stakes.
BURBANK: One of the things that, I think, before the session even gets started is interesting is the actual cases that they have selected. What do we know about the makeup of this court based on the things they're going to actually hear?
Mr. TOOBIN: Well, you know, every year, the court takes on important cases. I mean, already this year. And it's, of course, very early. It's just the first day of the term. But they're going to look at the constitutionally - constitutionality of photo Ids for voters, which many blacks and minorities have said it's just a device to stop them from voting.
They're going to return to Guantanamo Bay, the detainee situation there. They're going to look at the constitutionality of gun control. They're going to decide whether lethal injection amounts to cruel and unusual punishment. But there will almost certainly more big cases down the line, because there always are.
STEWART: There's a First Amendment free speech case, where the subject is child pornography. Can you explain to us how child porn and free speech end up in the same debate?
Mr. TOOBIN: Well, the question is - I mean, there is no doubt that the government can - that no judge of any political stripe thinks child pornography - that is the photographic depiction of children do committing sexual acts - is protected by the fifth - the First Amendment. That's not an issue. The issue is written depictions of child pornography. Can writings be a crime? And that's a very hard constitutional issue that the court has never settled. And that looks like it's coming before the court as well.
STEWART: Jeff, are there any you've-got-to-be-kidding-me cases? Remember when Anna Nicole Smith ended up in front of the Supreme Court? And we said, oh, you've got to be kidding this is happening. Is there any one case that you really - has made a head-scratcher for you?
Mr. TOOBIN: Well, there have been several, you know, goofy cases along the way. The irony of the Anna Nicole Smith case is that the issue - I am convinced that most of the justices had never heard of Anna Nicole Smith.
STEWART: Well, we know Souter probably hadn't.
BURBANK: Yeah, right.
Mr. TOOBIN: Souter, I guarantee you hadn't heard of Anna Nicole.
BURBANK: As long as she was not drinking Diet Coke.
Mr. TOOBIN: And the issue itself in the case was unbelievably obscure. And it was funny to see the court packed with people over a case where the issue was do state or federal courts have jurisdiction over certain kinds of probate litigation, which is not exactly one that we would be covering otherwise. But, you know, that's - it was because of our late beloved Anna Nicole that we covered it.
STEWART: Hey, Jeff, did you watch the "60 Minutes" interview with Clarence Thomas?
Mr. TOOBIN: I sure did.
STEWART: All right. So I learned a lot about his personal life, that he grew up in severe poverty, didn't have electricity or running water. They used an outhouse. He grew up outside of Savannah, Georgia. I personally didn't learn a lot about him as a justice. But you're someone who's researched him and this subject. Can you give us a taste of something you picked up from the interview that we might not have?
Mr. TOOBIN: Well, it's just - he's extraordinary bitterness about the Anita Hill situation. You know, he's been on the court for 16 years. You would think that, you know, having had that kind of life for 16 years, he'd be happier. But, you know, he - this is the wound that would not heal for him.
To me, the most interesting thing about Thomas is he's not just the most conservative justice on the Supreme Court right now. He is the most Supreme - conservative Supreme Court justice since the 1930s. He's well to the right of anyone who served through the court in decades. This is a guy who basically believes that the New Deal is unconstitutional. It's just an extraordinary record that he's amassed on the court, and something that is very different from his colleagues, to say the least.
STEWART: "The Nine: Inside the Secret World of the Supreme Court" written by Jeffrey Toobin. Jeff, congratulations on the great success of this book.
Mr. TOOBIN: Thank you very much.
STEWART: And thanks for being on our debut.
Mr. TOOBIN: My congratulations on the success of THE BRYANT PARK PROJECT.
STEWART: Thanks, Jeff.
Mr. TOOBIN: All right. See you.