Toobin Draws Back Curtain On Supreme Court

Photo Credit: Janet Rogers

From middle school civics to high school history and college political science, we have all learned one thing: The Supreme Court and the President – and sometimes their colleagues in Congress – were established to protect the American people and preserve the Constitution.

That’s the theory. But according to Jeffrey Toobin, it doesn’t always work out that way in practice. In an era when few public figures are immune to politicization, lobbying or outright quid pro quo deals, the people are not part of the equation and the Constitution is bent to serve certain causes.

Toobin, a New Yorker staff writer and CNN analyst, was at the University of Missouri-Kansas City for “The U.S. Supreme Court and the Issues of Our Time – An Evening with Jeffrey Toobin.”

Toobin lost no time getting to the heart of his message: the ideological split in which America finds itself is reflected by Supreme Court decisions, and justices wearing matching robes do not disguise this fact.

He went through the political composition of the high court since the 1960s, when seven liberals pursued a liberal agenda. In the 1970s, President Nixon wanted to slow the progressive changes that marked the preceding years, and nominated conservative justices to the Supreme Court. However, his appointments, Chief Justice Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist, did not turn the tide. These were the years of Roe v Wade and ending the death penalty. The Republican party was moderate, and the Court was in line with those views.

By Toobin’s estimate, the real changes started with President Reagan’s Attorney General, Ed Meese, who wanted to jumpstart the “Reagan revolution” by appointing more conservative justices. Bright young conservative lawyers thought their day had arrived. For John Roberts and Samuel Alito, it would.

In 1981, Reagan kept his promise to appoint a woman, Sandra Day O’Connor. To balance her moderate approach, Reagan appointed Antonin Scalia. The rejection of Robert Bork was a bitter pill for Meese and Reagan, but reflected the centrist Republican Party of the times. Bork’s replacement, Anthony Kennedy, sailed through the confirmation process.

Bush v Gore, the landmark case that decided the 2000 presidential election, was a divisive decision — one that Chief Justice Rehnquist advised people to “get over.” Toobin admits that he is not over it, and said Al Gore privately admitted the same. In an ironic twist, under George W. Bush the Supreme Court moved left, making liberal rulings in favor of gay rights, affirmative action in college admissions and the rights of prisoners at Guantanamo Bay.

Much of this was due in part to increasing alienation felt by Justice O’Connor from George W. Bush and Attorney General John Ashcroft. The final straw was Terri Schiavo, who suffered massive brain damage and was in a persistent vegetative state. Her parents and her husband used the courts to fight over her treatment. Her husband’s desire to remove her feeding tube prevailed.

At the time, O’Connor herself was coping with her husband’s failing health and did not believe government should intervene in such matters. In 2006, she announced that she was going home to care for her husband. John O’Connor died in 2009.

Toobin spoke before a capacity crowd at Pierson Auditorium in the Atterbury Student Success Center. His appearance was sponsored by the Advisory Committee to the Carolyn Benton Cockefair Chair in Continuing Education and the Bryan Cave law firm in honor of a former partner, the late Edward A. Smith. Throughout the year, the Cockefair Chair underwrites a lecture series at UMKC of free public-interest programs.

Toobin said one of his saddest days was the retirement of his favorite justice, the “weirdly eccentric” David Souter. Despite his personal quirks – no cell phone, no computer, no email (he uses a fountain pen), and no answering machine – it was his reverence for the Supreme Court and for the work they did that endeared Souter to Toobin.

Just out of law school, Toobin sat as associate counsel for the Iran-Contra trial he described in his book: Opening Arguments: A Young Lawyer’s First Case – United States v. Oliver North. He related the events of the O.J. Simpson trial in The Run of His Life: The People v. O.J. Simpson; and most recently, told of President Obama’s clashes with the Supreme Court in The Oath, The Obama White House and the Supreme Court.

Toobin’s prize-winning 2007 book, The Nine: Inside the Secret World of the Supreme Court, is considered the definitive work on the current Supreme Court justices and what influences their decisions.  

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