MIKE PESCA, host:
A little more than a month ago, it seemed that the Supreme Court's term would be cautious and not, as everyone predicted, it would not, hinge on the judicial decisions of Justice Anthony Kennedy. Cut to today, the term just over, and Kennedy has proved to be the fulcrum in some of the biggest cases, the death penalty, habeas corpus for Guantanamo Bay prisoners, gun rights, and in the biggest non-ruling for me, fantasy baseball lives.
Jeffrey Toobin is a Supreme Court expert, and a supremely courtly fellow, from what I just gathered in our pre-chat. He's the author of "The Nine: Inside the Secret World of the Supreme Court." You know him from CNN. You might know him from the New Yorker. He joins me now. Hello, Jeffrey.
Mr. JEFFREY TOOBIN (Contributor, The New Yorker; Author, "The Nine: Inside the Secret World of the Supreme Court"): Good to be with you.
PESCA: "The Nine," the book, really focuses on the personality, the biography, the motivations that can't be found in a law book. Take some of what you think are the biggest decisions. Tell me how personalities of the justices come into play.
Mr. TOOBIN: Well, this court is dominated by Anthony Kennedy in a way that no justice has dominated a court, frankly, in my knowledge or experience. He is just the absolute center of this court, even more than O'Conner when she was the swing vote, even more than Lewis Powell when he was the swing vote. And Kennedy is mostly a conservative, but he is not entirely a conservative, and the two big decisions where he sided with the liberals, striking down the death penalty for child rapists and ruling against the Bush administration again on its treatment of the detainees in Guantanamo, particularly reflect his personality and background.
The part of his character that I found the most interesting when I wrote about him was his practice of traveling around the world. And he spends his summers in Salzburg, Austria. He is very much a part of the international network of judges, and if you look at the issues on which he sides with the left, they are issues that internationally are overwhelmingly in that direction. For example, the death penalty. We are the only industrialized country in the world that has the death penalty. He is the author of the decision called Roper v. Simmons from 2005, when they struck down the death penalty for juvenile offenders. He is definitely not sympathetic to the death penalty the way the rest of the conservatives are.
PESCA: And I know that Scalia, it drives him around the bend whenever international law is cited, whenever evolving standards are cited, like the fact that we're the only industrialized country that has the death penalty. Is he trying to revoke Kennedy's passport? What's Scalia trying to do?
Mr. TOOBIN: Well, what I thought was interesting was that Kennedy did not cite international law in this child-rape case. He could have, because we are a very unusual country in that we, until this decision, had at least potential to execute child murderers, but that kind of argumentation was so controversial that Roberts and Alito, during their confirmation hearings, explicitly said they did not favor that kind of reasoning. So, I guess Kennedy figured this decision was controversial enough without citing international law.
PESCA: In another key death-penalty ruling, the judges allowed a specific method, the most popular method, of lethal injection, the three-drug cocktail. There was a lot of thought among death-penalty opponents that, well, what we'll do is we'll attack the methods of execution, and even within the death-penalty-opponent community, some people say, no, we have to talk about the overall picture. But do you think this case has a broad - says anything broadly about the direction of the death penalty in this country?
Mr. TOOBIN: Well, that was a very interesting case because, unlike a lot of Supreme Court cases, the record, the evidence, was not very fully developed, and frankly, it's hard to develop evidence about how the death penalty works. The - the attempt to prove that the death penalty through lethal injection causes excruciating pain is not something they were really able to do very well, and that decision was seven to two, with Stephen Breyer and John Paul Stevens joining the conservatives.
So, I don't think the issue is over. I think, given Kennedy's predilections against the death penalty, given the declining popularity of the death penalty nationwide, the court is never going to be done with the subject, but that was simply not clear enough, even to the more liberal justices, that they felt they could overturn the whole practice.
PESCA: So, let's talk about Guantanamo. There is a libertarian argument that we shouldn't allow the government to take away rights, even the rights of suspected terrorists. What - why - why was it a five-four decision? Why do you think that the justices - I know what they wrote in their case, but do you think that, kind of, they were just tired of the Bush administration's constantly trying to walk over the line of what they could get away with in terms of habeas corpus and trials for suspected terrorists?
Mr. TOOBIN: Again, I think you need to look at Kennedy's philosophy, because he was the key vote, and of course, wrote the opinion. The four conservatives on the court now are not libertarian conservatives. They are big-government conservatives. They are authoritarian conservatives. They believe in a very strong executive branch. So, it is not surprising that Roberts, Alito, Thomas, and Scalia said leave the executive branch alone. They can establish procedures in their own discretion.
Kennedy, again, is very different on this, and again, I think his connection to the international world, where belief in the Geneva Conventions and belief in international institutions is so strong that I think that's had a big impact on him. You know, this is the fourth big case where the court has ruled against the Bush administration on the Guantanamo issue. Kennedy has been with the liberal majority in all of those cases, so I think it's a pretty core belief with him that we need to abide by the Geneva Conventions and give these people hearings.
PESCA: How's Roberts shaking out as a chief justice?
Mr. TOOBIN: I think he was a brilliant choice by George W. Bush, because he is very competent. He is very - he's really an excellent, excellent writer. He is emerging, I think, as one of the best writers on the court in many years, and he's popular. He's a good symbol of the judiciary. He is very personable, very good speaker, and above all, he is very, very conservative. ..TEXT: This is a guy who's now been on the court for pushing three years. There is not one vote you could point to in his record that suggests any moderation at all. He is very much in the Scalia and Thomas camp, not always reasoning in the same way, but in the results, overwhelmingly, he's with them, and so I think he's been a total homerun for George W. Bush.
PESCA: And the stats show that he was in the majority 90 percent of the times he dissented, the fewest number of times of any justices.
Mr. TOOBIN: It's a conservative court, so the conservatives are going to win most of the time, and thus, he is not going to dissent very often.
PESCA: Though he's not so conservative that he won't quote Bob Dylan, but he's not so liberal that he won't incorrectly quote Bob Dylan, because he got that quote wrong.
Mr. TOOBIN: Correct. Yes. Like all men in their 50s, attempts to be hip usually fall flat.
PESCA: Yeah. He said if you ain't got nothing, you've got nothing to lose, but he left out the "ain't." I wanted to ask you about the court history and compare it today. Earl Warren, he was a former governor with all the people skills that that implies, and he wanted Brown v. the Board of Education to be a unanimous decision. He worked the court to get a nine-oh majority.
Today, it's maybe, nine-oh majorities, fairly unheard of on the split court. But has there been an evolution on the question of the number of justices signing onto the majority, how much social weight that carries, because it seems like five-four decisions become law and everyone follows it just as much as seven-two decisions?
Mr. TOOBIN: I think that's right. I think the desire for unanimity is sort of a folly. I think Chief Justice Roberts' emphasis on that was excessive, and he has proven incapable, certainly in the big cases, of achieving unanimity. But you know, these are big, big issues, and they are highly politically charged, and the justices are very independent-minded, and they are not terribly receptive to being strong-armed by the chief justice or anyone else.
PESCA: Well, forget strong-armed. What about, you know, throw your arm around them, people skills, trying to, you know, convince them in social settings?
Mr. TOOBIN: I think if you look at the court in 1954, the ideological divisions among them were substantially fewer than they are now. So, yes, Earl Warren had great people skills. Yes, William Brennan, who joined the court shortly after Brown, had great people skills, but I think that whole schmoozing thing is overstated. These justices know exactly what they believe about the constitution and with rare exceptions, they don't change their minds. Interestingly, the culture of the court is very much a nine-separate-law-firms kind of place. They don't interact a great deal. I think that surprises people. So, there's not a lot of opportunity for lobbying.
PESCA: Right. So, after a decision, I know that there's a process and they get to see the other's decisions before it's public, but...
Mr. TOOBIN: But it's mostly by memo and email.
PESCA: And people are generally like, huh, look at that, Stephens agreed with me.
Mr. TOOBIN: Right. Well, they - after oral argument, they meet in their secret conference, but that is, by and large, just a place where they vote. So, they know what the votes are going to be, but they don't talk a lot about the substance and they don't really lobby each other very much.
PESCA: Let's look ahead a little bit to the presidential election, who might be on the court, and just the process itself. I love a good legal discussion. I have come to loathe the confirmation hearings because there are a few aspects of them - one, you have all the justices saying, I've never even thought about these important decisions, you know, very ingenuous. Then you have Roe versus Wade dominating the discussion to the exclusion of other important issues.
And then you have, you know, little details, like who you had lunch with your sophomore year in college, having this outsized importance, I guess, because the justices won't engage in the issues. So, what I'm going to do is hypothetically appoint you, Jeffrey Toobin, to the Senate Judiciary Committee. What would you do differently? Would you ask different questions?
Mr. TOOBIN: Well, I think it's actually a fairly simple cure. Arlen Specter, who used to be chairman of the Judiciary Committee, likes to say that Supreme Court justices will say as little as possible in order to get confirmed. If I'm Senate Judiciary chairman, I'm going to say, look, you're going to have to answer whether you think Roe v. Wade is correctly decided or we are not going to vote for you.
That's the only sanction the Senate has, because what they have done is, they ask all these sort of leading questions and they try to sort of trick the nominees into giving away their position on Roe, and it's - it's ridiculous. You know, all 18 members of the Judiciary Committee, when they run for office, are required by their constituents to answer the question, do you think Roe was correctly decided? But somehow, the culture has evolved so that the one person in that hearing room who actually has some say over whether Roe is overturned or upheld is allowed to dodge the question. I think that is preposterous, but I ain't holding my breath for a change.
PESCA: One guy who takes up a lot of time during these committee hearings, but was running for president, Joe Biden, had what I thought was an interesting philosophy about the kinds of justices he would appoint. He said he would specifically go out and appoint justices, maybe ,who weren't even judges, just wise men with real-world experience. Not a lot of people know you don't even have to be a lawyer to be on the Supreme Court. Do you think there's any value in that?
Mr. TOOBIN: I think there's a lot of value in that. You know, the court now is the first time in history that all nine justices are former Federal Appeals Court judges. The court that decided Brown v. Board of Education in 1954, not one of the justices had been a judge of any kind before. They were all lawyers, but none had been a judge. Earl Warren was governor of California. William Douglas was head of the SEC. Felix Frankfurter was a law professor. Hugo Black was a senator.
That is more the rule in American history than the current situation, and I think there is a good chance that either McCain or Obama will try to restore that tradition. I think O'Connor added a tremendous amount to the court because she had been a state senator. She knew what it was like to run for office. Joe Biden likes to say, you know, I just wish one of you people had run for dogcatcher once. That, I think, is a very good point, and so, I think you might see Barack Obama appoint Janet Napolitano, governor of Arizona, the governor of Michigan, whose name is escaping me, Jennifer Granholm.
PESCA: Granholm, who could serve there, but not president, because she was born in Canada.
Mr. TOOBIN: She was born in Canada. Or John McCain appointing Christopher Cox, the head of the SEC, who used to be a congressman, I think these - this kind of diversity would be a very healthy thing.
PESCA: Jeffrey Toobin, Supreme Court expert. He wrote "The Nine: Inside the Secret World of the Supreme Court," senior legal analyst on CNN, staff writer for the New Yorker. Thank you very much for coming in.
Mr. TOOBIN: Good to be with you.
PESCA: OK. Well, that happens to be it for this hour of the BPP. I believe we touched upon two of the three branches of government. All right, I'll let you have time to reflect on what was the third, the Congress. Not too many mentions of the Congress. Wait, wait, wait. No, we talked about confirmation hearings, and as you know, though appointed by the president, Supreme Court justices are confirmed by the Congress.
So, yes, the trifecta. All three branches of government represented. In the next hour of the BPP, we will perhaps try to mention each of the 50 states and several select territories. Guam, this one's for you. We're always online at npr.org/bryantpark. I'm Mike Pesca, and this is the Bryant Park Project from NPR News.