How One Man Brought Justices Roberts, Alito And Gorsuch To The Supreme Court
How One Man Brought Justices Roberts, Alito And Gorsuch To The Supreme Court
New Yorker staff writer Jeffrey Toobin discusses Leonard Leo, the conservative lawyer who is responsible, to a considerable extent, for one third of the justices on the Supreme Court.
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. One man is responsible to a considerable extent for choosing a third of the justices on the Supreme Court, including Neil Gorsuch, who was sworn in Monday. That's what Jeffrey Toobin reports in his latest article in The New Yorker called "The Conservative Pipeline To The Supreme Court." The article is about Leonard Leo, who Toobin says served in effect as president Trump's subcontractor on the selection of Gorsuch. Leo also played a crucial part in the nominations of Justices Roberts and Alito. Leo is executive vice president of The Federalist Society, a national group of conservative lawyers, which Toobin also writes about in his article. The society was co-founded by law students in 1982. One of their faculty advisers was Antonin Scalia, who Justice Gorsuch has now replaced on the court. Jeffrey Toobin is a staff writer for The New Yorker and a senior legal analyst for CNN.
Jeffrey Toobin, welcome back to FRESH AIR.
JEFFREY TOOBIN: Hi, Terry.
GROSS: You write that Leonard Leo served in effect as Trump's subcontractor on the selection of Neil Gorsuch. So describe his role a little bit.
TOOBIN: Well, Leonard Leo is the executive vice president of The Federalist Society, which is a lawyers group, a nonprofit organization, that was founded in 1982 and basically operates to bring conservative lawyers together for meetings, for panels, for conventions. And Leo has become sort of the public face of the organization and someone who really is a networker extraordinaire who has learned who are the brilliant, often young, conservatives in the world and has cultivated them to have high-level government jobs and judicial appointments.
And last spring, when Donald Trump was on the brink of clinching the Republican nomination, Don McGahn, who later became the White House counsel, called up Leo and said, Trump wants to meet with you. And Trump said to him, look, I want to prove to the conservative movement that I'm one of you. So I want you, Leonard Leo, to make a list of people that I should consider nominating to the Supreme Court for the seat that was vacant at that point - the seat that was being held open by Mitch McConnell, you know, not giving Merrick Garland a hearing or a vote - and make a list of conservative judges who would persuade the conservative movement how serious I am about appointing a conservative to the Supreme Court. And Leo did.
And in May, and in the fall, he released two different lists, each of 10 judges, and Neil Gorsuch was one of them. He was on the second list. And this building of a list, this creation of a list, was something that had never been done before by a presidential candidate. And it was something...
GROSS: Well, you mean, releasing publicly a list...
TOOBIN: Correct, correct.
GROSS: ...Of potential nominees had never been done before.
TOOBIN: It had never been done before. I actually think it's kind of a good idea.
TOOBIN: Well, because I think the appointment of a Supreme Court justice is among the very most important jobs that any president does. And why shouldn't the public know the kind of people that the president is considering? And so, you know, I'm not saying the president should identify the single nominee, but 20 names, as Trump produced, I think was a good idea.
GROSS: The way you're describing it, it makes it sound like Trump went to Leonard Leo and said, give me a list of judges that will make the conservatives like me.
TOOBIN: Exactly. You said it shorter.
GROSS: (Laughter) Is that - are you saying that's what happened?
TOOBIN: You said it shorter than I did, Terry, but that's exactly what he did. I mean - and I think if you listened to conservatives throughout the fall, a lot of whom had a great deal of distaste for Trump personally, they you know, his political history was checkered to say the least, his personal history was more than checkered. But you often heard it - I mean, I heard Paul Ryan say it many times - well, you know, I'm confident that Trump will appoint the right people to the Supreme Court. And they made that bet on Trump. Trump got enormous support in the Republican Party - basically the same or better than Mitt Romney got four years earlier. And I think the fact that he was committed to appointing conservatives to the Supreme Court was a big factor in that. So I think it was a very clever strategy on Trump's part and of course on Leonard Leo's part in essentially being the person who made the list that the president drew from.
GROSS: How did Donald Trump know to go to Leonard Leo to make that list?
TOOBIN: Well, that's really the story that I wrote in The New Yorker is how Leonard Leo, this really - this person who has never held government office, who's never been a law professor, who doesn't give speeches, who doesn't, you know, write books, how he of all people in the world became, in effect, the guy who picked Supreme Court justices for Republican presidents. And it's really the story of the growth of The Federalist Society, which is, you know, it's interesting. A lot of Democrats, when they talk about The Federalist Society, they make it sound like it's something out of "The Da Vinci Code," like it's some secret cabal. There's nothing secret about The Federalist Society. It is a group that - it was originally started by law students who felt that there was too much liberal influence on law school campuses and faculties. So they started holding meetings, and they started bringing in guest speakers. And it expanded dramatically in the '80s under the Reagan presidency.
And basically what they do, The Federalist Society, they have funding from all the sort of usual suspects of conservative foundations and sources - the Koch brothers, the Bradley and Olin Foundations. And they hold meetings. They bring in speakers to law schools. They have practice groups in bigger cities. Every November, they have a convention at the Mayflower Hotel in Washington. And in part, the purpose is to hold panel discussions, often including liberals, or usually one liberal, to give an opposing point of view. But they give an opportunity for conservatives to network with each other and talk to each other and meet each other and check each other out. And it is out of this informal collaboration more than the formal aspects of the meetings that there becomes known a conservative network of lawyers. And Neil Gorsuch is part of it. John Roberts was part of it Samuel Alito was part of it. Whether you're actually a member of the society doesn't really matter that much. There are only about 70,000 members. But you don't have to be a member to speak there. You don't have to be a member to go to the meetings. And this network, this conservative network that The Federalist Society has cultivated - largely through the work of Leonard Leo - has been a remarkable success in transforming American law.
GROSS: So one of Leonard Leo's jobs at The Federalist Society has been to kind of create a pipeline for students to get to the bench and for people on the federal bench to get to the Supreme Court, people who conservatives approve of because The Federalist Society started more as a student organization and then it became something to channel people to judicial appointments, right?
TOOBIN: That's right. And he's very open about that and very proud of that. And, you know - and he says, look, this is what we want to do. We want you, when you're a law student, to go to Federalist Society events, listen to our guest speakers. We want you to then clerk for a judge who had been a Federalist Society member. And then after you've been practicing for a few years, maybe one of your colleagues will get a job in government and he or she will bring you in. And then ultimately, we will, you know, have a president who will be sympathetic, and that president may appoint you to the bench. And, you know, the pipeline is a very evocative metaphor because Leo wants to basically take a young conservative in law school and groom that person throughout his or her career so that they may wind up to be Neil Gorsuch. And if they don't wind up to be Neil Gorsuch, they'll wind up to be some judge on the 10th Circuit or a district court judge or a member of Congress or a member of the city council in their town. They are a full service pipeline of taking conservative law students and turning them into public figures and public servants. And, you know, but there's nothing secretive about it.
There's nothing - you know, it's not like they're doing this in the shadows. They're doing this in plain view, and they're very proud of it.
GROSS: OK, let's take a short break here and then we'll talk some more. My guest is Jeffrey Toobin. We're talking about his latest article in The New Yorker, which is called "The Conservative Pipeline To The Supreme Court." We'll be right back. This is FRESH AIR.
(SOUNDBITE OF MOACIR SANTOS' "EXCERPT NO. 1")
GROSS: This is FRESH AIR, and if you're just joining us, my guest is Jeffrey Toobin. He's a staff writer for The New Yorker and senior legal analyst for CNN. We're talking about his latest article in The New Yorker, "The Conservative Pipeline To The Supreme Court." It's about Leonard Leo, a longtime executive vice president of The Federalist Society, who served, in effect, as President Trump's subcontractor, Toobin says, on the selection of Neil Gorsuch and also played a crucial part in the nominations of John Roberts and Samuel Alito to the Supreme Court. So the piece is in part about Leonard Leo, and it's also about the history of the conservative judicial group The Federalist Society.
So Donald Trump asked Leonard Leo to make up a list of potential Supreme Court nominees. Gorsuch was on that list. After President Trump got to nominate Neil Gorsuch, Leonard Leo took a leave from The Federalist Society to groom Gorsuch for the hearing. So what was his role in the grooming, do you know?
TOOBIN: Well, he was not the main person doing the so-called murder boards, you know, preparing Gorsuch to not answer questions, as he did during the...
GROSS: (Laughter) I like the way you put that.
TOOBIN: ...Senate Judiciary Committee. His role was more coordinating the various conservative groups who were supporting Gorsuch, who were, you know, the Judicial Crisis Network, which is, you know, which ran television ads in states where they thought the senators might be wavering in support of Gorsuch, particularly Democrats who are up for re-election in red states in 2018 - Indiana, North Dakota, Florida and the like. Those are - so he was more involved in sort of whipping political support for Gorsuch rather than doing the preparation for the hearings themselves.
But that has become a very important part of Supreme Court confirmation hearings, that, you know, I think partisans on both sides recognize that these hearings are political events. And senators respond to political stimuli. And television advertising is something that gets their attention. But also, you know, placing op-ed pieces, you know, getting web pieces up in support of Gorsuch, mobilizing conservative intellectuals, mobilizing Judge Gorsuch's law clerks, some of whom were Democrats, mobilizing - you know, establishing support within the American Bar Association, which gave Gorsuch a good rating.
You know, all of that is part of a modern Supreme Court confirmation fight. And that outside game, as opposed to the inside game of preparing Gorsuch, was really what Leo was spending his time on.
GROSS: So you give a lot of credit to Leonard Leo for the nominations of Justices Alito and Roberts. What was his role in those nominations and confirmations?
TOOBIN: Well, it was really very similar, except there was - he didn't prepare a list of potential nominees. The White House did that themselves. But certainly, his role was similar when it came to mobilizing the conservative movement in support of President George W. Bush's three. Remember, it was three nominees to the Supreme Court. First it was John Roberts to replace Sandra Day O'Connor, then Chief Justice Rehnquist died and Roberts was named to replace Rehnquist.
And then Bush named Harriet Miers, his White House counsel, to replace O'Connor. And then when her nomination imploded, he named Alito. And this was an interesting moment in Leo's career, I think, this Bush effort, because, you know, Leo is proudly and effectively a member of the conservative movement. And Harriet Miers was really unknown to the conservative movement and in particular, unknown to The Federalist Society. She was not a constitutional lawyer.
She was not someone who had been involved in this issue. She was the managing partner of a distinguished Dallas law firm but a business lawyer. And so there was a lot of skepticism within the conservative movement about Miers. But because Leo had promised the Bush administration to go on leave and support their nominee, he did support Miers. But he saw and watched the conservative movement turn on Miers and ultimately force her to withdraw her nomination.
And that was a real lesson both for Leo and for the Republican Party, which was that the conservative movement cares so much about these Supreme Court appointments that they will turn even on their own president, as they turned on George W. Bush, because he didn't nominate a true conservative. And heading into the first Republican president since George W. Bush, that was the political environment that Leo both recognized and helped create, which is that we the conservative movement care about this, we expect a nominee who will please us and that has to be a priority.
And that's something Donald Trump understood, which is why he cultivated Leo. And it's something that Trump delivered on with the nomination of Neil Gorsuch.
GROSS: So Leonard Leo played a crucial role in the appointment of three Supreme Court justices - Alito, Roberts and now Gorsuch. Is that...
TOOBIN: Pretty good, huh?
GROSS: Is that an unusual amount of power...
GROSS: ...For one man?
TOOBIN: (Laughter) It's pretty amazing to me. I mean, I - you know, I was only sort of midway through my reporting on the piece and I said to myself, oh, my God. This guy has - is, like, responsible for a third of the Supreme Court. There's no president at the moment who's responsible for a third of the Supreme Court. The most any recent president has had is two nominations. I mean, to me, it was just extraordinary that a person, much less someone who never worked for the government, could claim this.
Now, you know, I don't want to say - I don't want to overstate the case. He's not, like, singlehandedly responsible for a third of the Supreme Court. But if you look at anyone else, there's no one else with anywhere close to that level of influence. And I think it's indicative of where the Republican Party is, which is aligned at the hip with The Federalist Society when it comes to judicial appointments. And their agenda and their belief in political change through the use of the courts is a core of the Republican Party now and something that Leo has led the charge on.
GROSS: And it's conceivable that Donald Trump would have three more vacancies to fill because three of the justices are...
TOOBIN: Old is the word you're looking for.
GROSS: Yeah, in their late 70s or 80s. Ruth Bader Ginsburg...
TOOBIN: Is 84. Anthony Kennedy is 80. Stephen Breyer is 78.
TOOBIN: And, you know, when I - when you talk about 84, Terry, 84 is not the new anything. Eighty-four is old. And, you know, Ruth Ginsburg is a tough, tough woman. But, you know, the actuarial tables start to close in on you at some point.
GROSS: So there used to be this expression - there should be no litmus test for the Supreme Court. But President Trump said he'd choose a pro-life judge, but Neil Gorsuch wouldn't speak to his views on abortion, though people deduce that he is against it. So, like, what does the litmus test - does anybody believe anymore that there's no litmus test?
TOOBIN: Well, see, now we're getting - I think - I mean, this is really the heart of the matter. I mean, which is like, well, what are - what is Neil Gorsuch going to do on the Supreme Court? Why was he appointed? What are his substantive views? And here's where Leo's role - I think - is enormously important because he understands the code in which a nominee and a president or the president's designees can speak that gives the president and his advisers comfort and knowledge about what his view - what the views are without tripping over into these so-called litmus tests.
And, you know, I never understood why litmus tests are such a bad idea. I - you know, every - every member of the Senate Judiciary Committee, all the senators, have a view on Roe v. Wade. None of them have any influence on whether Roe v. Wade is upheld or reaffirmed. But the one person who might have an effect on that, which is the nominee, is - under the conventions of our system - not supposed to say. And I think the way people like Leonard Leo can learn about what Gorsuch thinks about Roe v. Wade is to have these sort of coded conversations about precedent, about the structure of the Constitution, that give a very clear sense to Trump and to, you know, his supporters, what Gorsuch is going to do. And to - you know, just to answer your question, Trump did not ask Neil Gorsuch will he vote to overrule Roe v. Wade. I think there is very little doubt - especially if you know what Leonard Leo cares about - that Neil Gorsuch will, at every opportunity over the next three, four decades, vote to overturn Roe v. Wade.
GROSS: My guest is Jeffrey Toobin. His article, "The Conservative Pipeline To The Supreme Court," is in the current issue of The New Yorker. After a break, we'll talk about the conservative legal movement's reading of the Constitution, which strictly limits the powers of government, and how that affects issues like environmental regulation, affirmative action and LGBTQ rights. I'm Terry Gross, and this is FRESH AIR.
(SOUNDBITE OF OLAFUR ARNALDS' "PAU HAFA SLOPPIO UNDAN PUNGA MYRKURSINS")
GROSS: This is FRESH AIR. I'm Terry Gross, back with Jeffrey Toobin, a staff writer for The New Yorker and CNN's senior legal analyst. His latest piece in The New Yorker, "The Conservative Pipeline To The Supreme Court," is about The Federalist Society, a nationwide group of conservative lawyers, and its executive vice president, Leonard Leo. Toobin writes that Leo served in effect as president Trump's subcontractor on the selection of Neil Gorsuch to serve on the Supreme Court. Leo also played a crucial part in the nominations of Justices John Roberts and Samuel Alito, which means, Toobin says, that Leo is responsible, to a considerable extent, for a third of the Supreme Court. When we left off, Toobin was explaining why he thinks that Justice Gorsuch will at every opportunity vote to overturn Roe v. Wade.
You write that the possibility of Leo choosing a judge who supported the right to have an abortion is inconceivable, that he's dedicated to overturning Roe. Why is he dedicated to overturning Roe?
TOOBIN: Well, I think there are a combination of reasons. In part, he is an originalist. He - in the mold of Justice Scalia and in simple terms, he thinks that the Constitution should be interpreted as the meaning of the words were by the framers of the Constitution so that if the - James Madison didn't think he was establishing a woman's right to choose an abortion and if the authors of the 14th Amendment didn't think they were - the meaning of the words then did not establish a right to an abortion, the Constitution should never recognize it and the Constitution should be frozen in amber in that way. And so in that respect, I think Leo believes that the Constitution simply does not recognize the right to an abortion.
In addition, just as a political matter, Leo base - you know, is a devout Catholic, is a conservative Republican, is someone that believes abortion is the taking of a human life. And he just believes that it should be banned under all circumstances - rape, incest, anything. And he is dedicated to using all the resources at his disposal, including judicial appointments, to see that it's banned.
GROSS: He also has a child with spina bifida, which is a birth defect in which the spinal canal remains open at birth.
TOOBIN: Right. He had two - his two - it's really a remarkably sad story. His daughter...
GROSS: And - but his daughter died as a result of the (unintelligible).
TOOBIN: His daughter died at age 14 of spina bifida.
GROSS: Yeah. Do you think that shaped his views on abortion?
TOOBIN: Oh, absolutely. All his friends told me that, that this is a child with a very substantial disability, spina bifida, as well as other medical problems. And the notion that a child with genetic disorders that could be identified in the womb, the idea that a woman could terminate that pregnancy, is anathema to him. And I think that is not just an abstract belief. I think out of the love of his daughter and the love of his son, who was also afflicted with spina bifida, is something that shaped his views. You know, of course, the real issue with abortion, of course, is who decides. You know, if Leonard Leo and his family believe that no fetus should be aborted, that of course is fine. Supporters of abortion rights believe that that decision shouldn't be up to Leonard Leo or his judges or his government. It should be up to the women who are facing that decision.
GROSS: So since The Federalist Society and its executive vice president, Leonard Leo, seem to have such sway in who Republican presidents choose as Supreme Court nominees, when you describe The Federalist Society as a conservative judicial group, like, where do they fit in the spectrum of conservatism? Are the members kind of varied across the spectrum of conservative beliefs, or are they more in the middle or more to the right?
TOOBIN: Well, you know, it's a big group, so there are a lot of different people in it.
GROSS: So there's variation.
TOOBIN: But there are variations. But I think it is certainly on the right of the party overall, and Neil Gorsuch is on the right of the party. And let me give you an example because this is something that was really a revelation to me in writing the story in The New Yorker, which was, you know, I was very familiar with the idea of originalism and the idea that if you follow Justice Scalia's views of the Constitution, James Madison didn't think he was recognizing gay rights, so there shouldn't be any recognition of gay rights, abortion rights. But there's something deeper that Leonard Leo talks about, and Gorsuch talks about it a little bit, albeit in coded ways. And that's when he talks about the structure of the Constitution. This has become a big buzz word in conservative circles in recent years, the structure of the Constitution. And by that, he means that the different branches of government have clearly and narrowly defined roles. And if they stray outside the lines, it's the job of the courts to discipline the other branches of government.
Now, what does this mean in practical terms? What it means is that the courts are going to limit the power of government in efforts to address problems. The most obvious, dramatic were the Obamacare lawsuits. Remember, there was one lawsuit that said Congress did not have the power under the Commerce Clause to establish the individual mandate, the requirement that people buy insurance. There was another lawsuit that said the text of the Obamacare law didn't allow for the marketplaces to - the insurance marketplaces to work. Both of those were very structural arguments that said unless the Constitution specifically authorizes the government to do something, the government can't do it. And unless a law specifically authorizes the government to take a certain action, the government can't do it. All of that, traditionally, the courts had said, look, we want to give the government, Congress, the executive branch, leeway to operate. We want to give them leeway to address the problems in the society.
What the structure arguments mean is that the power of government is limited in a much stricter way than previous judges have seen. So what these lawyers in The Federalist Society are trying to do is use the court to limit not just abortion rights, not just gay rights, not just affirmative action, the traditional issues, but to limit the power of government all together to address problems. And that is potentially the most dramatic change of all. And that's where you might see Neil Gorsuch assert his influence in the most direct way.
GROSS: Give us an example of what kind of laws and decisions we'd be talking about.
TOOBIN: Environmental laws. Congress writes laws - the Clean Air Act, the Clean Water Act - but they're, necessarily, very broad laws. And they delegate the powers to administrative agencies to enforce those laws, specifically the Environmental Protection Agency.
Neil Gorsuch, his great intellectual interest and judicial interest is what's called the nondelegation doctrine, which is basically saying to administrative agencies, unless the law you operate under specifically authorizes you to limit the following six chemicals, we, the courts, are not going to allow you to limit that. Then Congress has to act very specifically or the administrative agency can't act at all.
Now, of course, Congress is not an administrative agency. They don't have the resources, the knowledge, the time to evaluate each chemical that might be harmful. They simply say, regulate harmful chemicals. This is what - limiting the power of administrative agencies in the environmental area is a classic demonstration of how the nondelegation doctrine, how these structural arguments could work.
As I mentioned before, the Obamacare cases were very much structural arguments. Congress doesn't have the power to issue the individual mandate. The executive branch doesn't have the power under the law to establish the marketplaces. Now, of course, the Obamacare cases were won by the Obama administration in the Supreme Court, albeit narrowly. But if you see the trends of where the court is going, certainly those cases might well have come out the other way.
GROSS: My guest is Jeffrey Toobin. His latest article in The New Yorker is called "The Conservative Pipeline to the Supreme Court." We'll be back after a break. This is FRESH AIR.
(SOUNDBITE OF JEFF BABKO'S "NOSTALGIA IS FOR SUCKAS")
GROSS: This is FRESH AIR. And if you're just joining us, my guest is Jeffrey Toobin. He's a staff writer for The New Yorker and senior legal analyst for CNN. His latest article, "The Conservative Pipeline To The Supreme Court," is about Leonard Leo, a longtime executive vice president of The Federalist Society. And Toobin says that Leo served, in effect, as President Trump's subcontractor on the selection of Neil Gorsuch and also played a crucial part in the nominations of John Roberts and Samuel Alito to the Supreme Court.
You know, we've been talking about The Federalist Society, a conservative judicial group that has a lot of sway and has played a very major role in the appointment of the last three Supreme Court justices. Is there a Democratic, liberal counterpart to The Federalist Society?
TOOBIN: Yes, there is. And it was founded in direct response to The Federalist Society. It was founded right after the Supreme Court's decision in Bush v. Gore in 2000, when the court effectively handed that election to George W. Bush. And liberals said, you know, conservatives have been cultivating judges and judicial selection for a long time, for two decades, and we've been asleep at the switch. We need to create our alternative. And there is one. It's called the American Constitution Society. And it is - I would say it is somewhat successful. It is - has an annual convention every year. And, you know, more liberal judges speak at it. And it has some networking opportunities for liberal lawyers. It's smaller. It has a budget of $6 million as opposed to $20 million for The Federalist Society.
And also, you know, one of the things about liberals is that they have never taken the same interest in judicial selection that conservatives have. You know, I spoke to Caroline Fredrickson, who is the current president of the American Constitution Society. And he said, you know, Democrats love to mobilize against an attorney general nominee. Jeff Sessions - you know, they were calling their congressman. But they were not engaged on the Neil Gorsuch nomination.
And when you think about, you know, how long Jeff Sessions is likely to be attorney general and what his influence is likely to be during the two, four or whatever years he serves, it's a fraction of what the judges can do on the Supreme Court. But liberals have just never engaged in similar numbers and with similar passion to conservatives about the Supreme Court. Another difference is liberals tend to organize in issue-type groups, is that there are civil liberties groups - the American Civil Liberties groups. There are environmental groups - the Sierra Club. There are children's rights groups. There's the Children's Defense Fund. They don't mobilize as a movement involving law together. And that's something that conservatives have learned to do. And that's - that has really diffused the power of liberals when it comes to the Supreme Court.
GROSS: And the conservatives, as you're describing it, are organizing around a judicial philosophy in the court, that encompasses so many political (laughter) - so many political issues...
TOOBIN: That's right.
GROSS: ...As opposed to mobilizing around each issue.
TOOBIN: Right. I left out race, which is obviously something that a lot of liberals care about and the NAACP...
GROSS: And LGBTQ issues. Yeah...
TOOBIN: Yeah, LGBTQ issues, of course. I mean, it's just - it's, I mean, you and I have come up with half a dozen very quickly that are all very significant forces within the Democratic coalition, but they are separate. And they are not - and though they probably agree with each other on most issues, they are not representing a single judicial philosophy. And they are not mobilized together around judicial appointments. And that's something that conservatives have learned to do. And the proof is in the federal courts. You know, President Obama was very focused on diversity in his appointments. And he appointed enormous numbers of minority candidates, of women candidates for the judiciary. He did not focus a lot on ideology. They were not a lot of very liberal nominees. George W. Bush did. And I think as the Donald Trump administration proceeds, we will see a lot of very conservative and very young judicial nominees come out of this administration because it's something that Leonard Leo, The Federalist Society and conservatives as a group care a lot about.
GROSS: So what are some of the cases that will be coming before the Supreme Court in the early days of Neil Gorsuch being on the bench?
TOOBIN: Well, certainly, the one that will probably attract the most attention - and it's not clear that it will get to the Supreme Court in the next month or so, although it well might - is Donald Trump's executive order on immigration, the one barring or temporarily barring immigration from several Muslim-majority countries. And several federal judges have struck that down. It's now in the appeals process. Of course, it was revised, then the revised version was struck down. That will certainly be a big deal. To be honest, the justices have done their best while they were at eight, you know, to sort of keep the pipeline as clean as possible of really controversial cases.
So I don't think this is a term with the kind of big blockbusters, like same-sex marriage or Obamacare, that we have seen in recent years. But, you know, Terry, one issue that I think everyone should keep an eye on, which will keep coming up in one way or another, is something that is another Gorsuch specialty, which is the Hobby Lobby-type issues, which is basically the issues that arise when religious people or companies owned by religious people say, we don't want to follow the rules that are established for everyone else.
Remember, Hobby Lobby was a case about a very large but privately held company that under the Obamacare mandates, had to provide birth control for its employees...
GROSS: As part of its health care coverage.
TOOBIN: As part of its health care coverage. They said that certain forms of birth control, they regarded as tantamount to abortion, so they wouldn't fund it. This is - and Gorsuch wrote the lower court opinion, which was upheld 5 to 4 by the Supreme Court, saying that the company didn't have to pay to provide birth control. I think, you know, the power of religious people both to excuse themselves from government obligations or to get government largesse, you know, parochial schools getting government funds, those sorts of cases are going to be big in the next few years.
You know, the evangelical community is a very powerful part of the Republican constituency. They want their hands on more government money. You have a Department of Education now led by Betsy DeVos, who wants to see federal money going towards religiously oriented charter schools, other types of parochial schools. Those kinds of cases, I think, are going to be very much before the court sooner rather than later.
GROSS: How much do you know about Neil Gorsuch's religious views and how, if at all, they've shaped his judicial opinions?
TOOBIN: You know, I don't know a lot about his religious views. He was raised a Catholic, as I understand it. But he married a British woman, who belonged to the Church of England, Anglican Church. And as a result, they now go to an Episcopal church in Boulder, Colo. I think more significant or in addition to his religious views, you know, the book he wrote about - which was about assisted suicide and the moral dilemmas surrounding right to die laws and the whole issues surrounding, you know, end of life care.
Gorsuch came down pretty strongly against any sort of assistance in dying, any sort of, you know, the medical help in dying. And I think that is a very good proxy for his views on abortion, that the government cannot sanction anything related to the taking of human life. So I think one of the surest bets about Justice Gorsuch's judicial philosophy will be, like Justice Alito, like Justice Thomas, he will be against any sort of a constitutional right of a woman to choose abortion.
GROSS: Well, Jeffrey Toobin, thank you so much for talking with us.
TOOBIN: Thanks, Terry.
GROSS: Jeffrey Toobin's article "The Conservative Pipeline To The Supreme Court" is in the current edition of The New Yorker. He's a staff writer for the magazine and senior legal analyst for CNN. After we take a short break, Ken Tucker will review an album of biblical psalms set to music by country singer Jessi Colter and guitarist Lenny Kaye. This is FRESH AIR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.