How High Court Could Change If Stevens Retires
In the March 22 issue of The New Yorker, legal correspondent Jeffrey Toobin profiles Justice John Paul Stevens, the Supreme Court's longest-serving member.
Stevens, who will celebrate his 90th birthday on April 20, was appointed to the court in 1975 by President Gerald Ford and, as Toobin writes, "is a generation or two away from most of his colleagues; when [Justice John] Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years." Speculation is growing that Stevens will step down from the court at the end of the current term, in June 2010.
"Last fall he had announced that he had only hired one law clerk, which suggested to a lot of people that instead of hiring the customary four, he was really moving towards retirement," Toobin tells Fresh Air host Terry Gross. "So I asked him, 'Are you going to retire at the end of this term?' And he said he hadn't completely made up his mind. He said his law clerks had agreed to serve longer, if he wanted them to, but it was certainly my impression that he is leaning towards retiring very soon."
Among the major decisions pending from the Supreme Court is McDonald v. Chicago, a case examining the legality of Chicago's handgun ban.
The high court has already ruled recently on gun control: In 2008, justices struck down Washington, D.C.'s handgun ban as a violation of the Second Amendment right to bear arms. But that ruling applied only to the nation's capital. The case now before the Supreme Court tests whether the limits on gun bans apply to state and local governments.
The New Yorker: Jeffery Toobin
In this show, Terry Gross and Jeffrey Toobin discuss his March 22, 2010, cover story about Justice Stevens that appeared in The New Yorker. Click below to read that profile.
"The issue in McDonald v. Chicago that the court is currently deciding is, 'Does a state have to honor the Second Amendment in the same way [that D.C. does]?' " says Toobin. "My guess is the court will incorporate the Second Amendment and will ban gun control in the states, and we are in for decades of litigation trying to figure out what gun control is legal and what gun control isn't."
Toobin is currently a staff writer at The New Yorker and a senior legal analyst for CNN. He is also the author of The Nine: Inside the Secret World of the Supreme Court.
On Stevens' retirement plans
"He didn't say that [he wanted to retire during the Obama administration] directly, but he definitely spoke of his admiration for Obama; they are fellow Chicagoans, something Justice Stevens takes very seriously. And if you look at Justice Stevens' place in the court and how he votes, even though he was appointed by [Republican President] Gerald Ford in 1975, he is very much at the center or the head of the progressive wing in the Supreme Court. So it is very evident to him that Obama will appoint someone who will vote similarly, and that's important to him."
On how Stevens and the Supreme Court have changed since 1980
"[Stevens] was a Republican appointee, and he did dwell in the center of the court for many years. And now it is very clear that he is on the left. I asked Justice Stevens that question: 'Have you changed or [has] the court changed?' And his answer was very clear: 'The court has changed.' It's a much more conservative court. The moderate Republicans with whom he served — Harry Blackmun, Lewis Powell, David Souter — they're all gone. And the four conservatives on the court [Antonin Scalia, Roberts, Samuel Alito, Clarence Thomas] are much more conservative than where the center used to be."
On Stevens' trying to sway Justice Anthony Kennedy to take the liberal side in Lawrence v. Texas (2003)
"In Supreme Court history ... we often put too much emphasis on who wrote the opinion and not enough on who assigned the opinion, because that can be very important. Oftentimes, these coalitions are very fragile. So it is the assigning justice's job to assign the opinion to the justice who you might lose if someone else wrote it. By giving Lawrence v. Texas to Kennedy, Stevens held on to [Kennedy's] vote and preserved this enormous victory for gay rights — even though it's Kennedy who gets the glory, not Stevens."
On Kennedy's role on the Supreme Court
"Since [Justice] Sandra Day O'Connor stepped down in 2005, the court has been more directly and obviously polarized than it's been anytime in its history. You have four very conservative justices — Alito, Scalia, Thomas, and Roberts. You have four pretty liberal justices — Stevens, [Ruth Bader] Ginsburg, [Stephen] Breyer and [Sonia] Sotomayor. Winning in the Supreme Court now is about getting Justice Kennedy's vote. He has a mercurial, sometimes hard-to-predict view of the law, but it's all about getting Justice Kennedy's vote. Stevens has been very artful in persuading Justice Kennedy to join his side in some cases. He hasn't always won. In fact, he's lost a lot with Kennedy. But it's all about getting Kennedy's vote."
On what it will mean if the handgun ban is overturned
"It would mean that no state can infringe on the right to keep and bear arms. What that means is hard to say. Does that mean that you and I have the right to buy a Stinger missile? Does that mean we have the right to buy a tank? My sense is I don't think that's what the Supreme Court is going to mean. But they are going to have to refine what they mean by 'keep and bear arms' over many years, and this area of the law — which had been settled for decades, that the Second Amendment does not protect an individual's right to keep and bear arms — is suddenly wide open. And gun control is not just politically on the ropes; it is legally very much in question everywhere."
On Stevens' departure, if and when it happens
"This will not be a surprise to the Obama administration. They have very much suspected that a vacancy is imminent, and I think they do have a candidate in mind — and frankly, I think I know who it is. I think it's going to be Elena Kagan, the current solicitor general and the former dean of Harvard Law School. She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she's the likely choice."
TERRY GROSS, host:
This is FRESH AIR. I'm Terry Gross.
The Supreme Court appears to be on the verge of change. Justice John Paul Stevens is expected to retire soon. He turns 90 on April 20th and is the fourth-longest serving justice in American history. Although he was appointed by a Republican president, Gerald Ford, in 1975, since 1994, he's been what Walter Dellinger described as the chief justice of the liberal wing of the Supreme Court.
My guest, Jeffrey Toobin, profiles Justice Stevens in the current edition of The New Yorker and writes about how his retirement may change the dynamics in the Supreme Court. Toobin is a staff writer for The New Yorker, covering legal affairs, and is a senior analyst for CNN. His books include the bestseller "The Nine: Inside the Secret World of the Supreme Court."
Jeffrey Toobin, welcome back to FRESH AIR. What did Justice Stevens say to you about when he thinks he might retire?
Mr. JEFFREY TOOBIN (Staff Writer, The New Yorker; Author, "The Nine: Inside the Secret World of the Supreme Court"): Well, this was obviously a subject that I was very interested in, given his age and given the political situation. So I tried to ask him as specifically as possible about this.
Last fall, he announced that hed only hired one law clerk, which suggested to a lot of people that instead of hiring the customary four, he was really moving towards retirement. So I asked him: are you going to retire at the end of this term, which would be in June of 2010? And he said he hadn't completely made up his mind. He said his law clerks had agreed to serve longer if he wanted them to, but it was certainly my impression that he is leaning towards retiring very soon.
GROSS: Does he want to make sure he retires while Obama is president so that he could be replaced by a liberal or at least a centrist?
Mr. TOOBIN: I think the answer to that pretty clearly is yes. He didnt say that directly, but he definitely spoke of his admiration for Obama. They are fellow Chicagoans, something Justice Stevens takes very seriously. And if you look at Justice Stevens' place in the court and how he votes, even though he was appointed by Gerald Ford in 1975, he is very much at the center or the head of the progressive wing in the Supreme Court. So it is very evident to him that Obama would appoint someone who will vote similarly, and that's important to him.
GROSS: You say that Justice Stevens was appointed to the court before the Reagan years. So he was the last confirmation before Supreme Court confirmations became battlegrounds for culture wars. And at first, he was in the ideological center of the court. How did he change, or do you think it's the court that changed around him?
Mr. TOOBIN: Well, that's really the great question about Justice Stevens because he was a Republican appointee, and he did dwell in the center of the court for many years. And now, very clearly, he is on the left.
I asked Justice Stevens that question: have you changed or the court changed? And his answer is very clear: the court has changed. This is a much more conservative court. The moderate Republicans with whom he served Harry Blackmun, Lewis Powell, David Souter they're all gone, and the four conservatives on the court are much more conservative than where the center used to be, that is Antonin Scalia, John Roberts, Samuel Alito, Clarence Thomas. So his answer is the court has changed, and there's a lot of truth to that.
There is also some truth, particularly on some issues like affirmative action, like the death penalty, that Stevens has changed, but I think he's more right than wrong that the court has changed, not him.
GROSS: Stevens is the court's senior justice, and since 1994, he's been the senior associate justice, which means he's responsible for assigning opinions when the chief justice is not in the majority. So what is the importance of that power, being able to assign who writes the opinion when the liberals are in the majority?
Mr. TOOBIN: That's always an important position, senior associate justice, but for these past 16 years, it's been especially important because the chief justices during that period William Rehnquist, now John Roberts have been ideologically opposed to Stevens.
So he has really been in the majority a lot when the chief justice is not in the majority. So he's had the opportunity to assign enormous numbers of opinions, and he is responsible in those cases for trying to build a majority. And for many of those years, there were justices like David Souter, like Sandra Day O'Connor, sometimes like Anthony Kennedy, who were getable.
So he has been responsible for building coalitions, and in many cases, though less so frequently, he has built those coalitions, and he's been very successful, I think, during those 16 years.
GROSS: When you say you give an example about when he tried to sway Justice Kennedy to support the liberal side in Lawrence v. Texas, and this was the gay rights case that invalidated bans on consensual sex between adults of the same gender, that he basically tell me if I get this wrong that he told Justice Kennedy that if he voted for the gay rights interpretation of the case that Kennedy would have the Kennedy would be given the privilege of writing the majority opinion. Do I have that right?
Mr. TOOBIN: Yes, you do. And that's a very important thing, and in Supreme Court history, as Walter Dellinger, the former solicitor general pointed out in an interview with me, you know, we often put too much emphasis on who wrote the opinion and not enough on who assigned the opinion because that can be very important.
Oftentimes, these coalitions are very fragile. So it is the assigning justice's job to assign the opinion to the justice who you might lose if someone else wrote it. And by giving Lawrence v. Texas to Kennedy, Stevens held on to his vote and preserved this enormous victory for gay rights, even though it's Kennedy who gets the glory, not Stevens, usually.
GROSS: Call me na�ve or uneducated, but I had no idea that that kind of politicking was done on the court - vote for our side, and you can write the decision. It sounds more like Congress to me than the Supreme Court.
Mr. TOOBIN: Well, if there's anything that we've seen in the last month, in the last year, it's that the Supreme Court is a lot more like Congress than you think. This is a deeply politically divided court. That is not a, I think, unethical example of Supreme Court horse trading. This is something that's gone on throughout the history of the court. There's nothing untoward about making that kind of deal. But don't kid yourself, these justices are very serious about their politics, judicial and otherwise, and they like to win. And so, if they can negotiate with each other in good faith, as they do all the time, they're going to do it.
GROSS: If you're just joining us, my guest is Jeffrey Toobin, and he profiles Justice Stevens in the new edition of The New Yorker. He's also, among other things, the author of the bestseller "The Nine: Inside the Secret World of the Supreme Court."
So you describe Justice Stevens as the undisputed leader of the resistance against the conservatives on the court, and you quote Walter Dellinger, describing him as the chief justice of the liberal Supreme Court. So in that capacity, what are some of the other ways he's tried to reach majority opinions for his point of view, for the more liberal point of view?
Mr. TOOBIN: Well, since Sandra Day O'Connor stepped down in 2005, the court has been more directly and obviously polarized than it's been almost any time in its history. You have four very conservative justices: Alito, Scalia, Thomas and Roberts. You have four pretty liberal justices: Stevens, Ginsburg, Breyer and Souter, now Sotomayor.
Winning in the Supreme Court now is about getting Justice Kennedy's vote. He has a mercurial, sometimes hard to predict, view of the law, but it's all about getting Justice Kennedy's vote. And Stevens has been very artful in persuading Justice Kennedy to join his side in some cases. He hasn't always won, in fact he's lost a lot with Kennedy, but it's all about getting Kennedy's vote.
GROSS: When you say artful, give us an example.
Mr. TOOBIN: Well, the big power he has in preserving and trying to get someone's vote is the assigning power, assigning opinions. So, in Lawrence v. Texas, the famous gay rights case, or more recently in the Boumediene case, which was the last of the Guantanamo detainee rights cases under the Bush administration, Stevens gave Kennedy the right to write the opinion in return for his vote. That's the power that he has, and he's used it rather skillfully.
GROSS: You know what I find particularly odd about that, it means the person writing the opinion is the person, in a way, who's least convinced about the point of view. He's the person who had to be swayed and was on the fence, as opposed to the people who have believed so strongly from the start in the decision.
Mr. TOOBIN: Well, in that respect, it's sort of like Congress. I mean, who are we arguing about now in the health care vote? It's the blue dogs, the more conservative Democrats who are somewhat committed to the health care plan but not as much. They are going to hold all the power.
Likewise in the Supreme Court. It's the people in the center, Justice Kennedy. Before him, Justice O'Connor. They are the ones who wield so much power, even though they are least committed to the votes that they sometimes cast.
GROSS: So do you think when Justice Stevens leaves that it will be more difficult for the liberals on the Supreme Court to get majority opinions, to sway Justice Kennedy?
Mr. TOOBIN: I do. I think it will mean some at least short-term hard times for liberals because Justice Stevens and Justice Kennedy have served together for decades. There was a real connection there. Obviously, they didn't vote together all the time, but I think in the absence of that relationship, it will be harder for liberals to get Kennedy's vote.
It won't always be the case, and I don't want to overstate the importance of this lobbying. The fact is, these justices are all strong-willed individuals. They vote the way they're going to vote because that's what they believe is right, but I do think the Justice Kennedy vote will be harder for the liberals to get in Stevens' absence.
GROSS: How would you compare the conservative approach to trying to sway Justice Kennedy to their side to the liberal approach to trying to sway him?
Mr. TOOBIN: I think it's very similar. The great carrot that Chief Justice Roberts has is the same one that Stevens has, which is the opportunity to assign the majority opinion. That is something Justice Kennedy is very interested in getting, and in, for example, the Citizens United case, the very controversial case decided earlier this year, Roberts assigned Kennedy to write it, Kennedy voted with Roberts.
GROSS: My guest is Jeffrey Toobin. He profiles Justice John Paul Stevens in the new edition of The New Yorker, where Toobin is a staff writer. He's also a senior analyst for CNN. We'll talk more after a break. This is FRESH AIR.
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GROSS: Let's get back to my interview with Jeffrey Toobin. His recent bestseller about the Supreme Court is called "The Nine: Inside the Secret World of the Supreme Court." He profiles Justice John Paul Stevens in the new edition of the New Yorker. When we left off, Toobin had mentioned the controversial Citizens United case.
Let's look at that Citizens United case because Justice Stevens, who you just profiled, played a very interesting role in that and wrote the dissenting opinion. So I'm going to ask you to sum up what the case was.
Mr. TOOBIN: Okay, there's a small picture and a big picture about Citizens United. The small picture is sort of the bizarre complexities of the case. Citizens United is a right-leaning public interest group. They came up with a film that they wanted to show that was very critical of Hillary Clinton on the eve of the Democratic primaries in 2008.
Some of the money under that underwrote that film came from corporations. Under the McCain-Feingold law, corporations were not allowed to spend money on the eve of elections. So, Citizens United sued, saying that law was unconstitutional.
Well, the first time the court heard the case, they were dealing with very narrow questions about whether Citizens United was really covered by the law and whether the technology that Citizens United was using was really covered by the law, but then something very unusual happened. The court issued an order saying: we want to hear an entire new argument, but we want the court to address much broader questions. Can the First Amendment can corporations be regulated in terms of their right to freedom of speech? Do corporations have the same rights as human beings when it comes to the First Amendment? And that's how the case was argued, and that's how the case was decided.
And in a five-to-four decision written by Justice Kennedy, he said that the McCain-Feingold law, as it applied to corporations, was unconstitutional, that corporations had a right to free speech, and that right included the right to spend as much money as they want, whenever they want on behalf of any candidate any time.
And Justice Stevens wrote a 90-page dissenting opinion, the longest of his career, that was more scathing, more angry, more sarcastic than anything he'd ever written before and I think will be a somewhat bitter coda to a otherwise rather cheerful Supreme Court career.
GROSS: Before we get to that dissenting opinion that he wrote, how unusual was it for the Supreme Court to order a case to be re-argued in broader terms?
Mr. TOOBIN: Very, very unusual. When Warren Burger was chief justice in the '70s and '80s, the court was a much more disorganized place, and there were occasional re-arguments. It almost never happened under William Rehnquist. It had never happened before under Chief Justice John Roberts, and I think it's indicative about how serious the conservatives on the court are about pushing the law, about changing the law, about overturning precedents that they don't like, that they decided to have this case re-argued and decided in so much broader terms.
GROSS: And that's one of those things that Justice Stevens objected to in his dissenting opinion.
Mr. TOOBIN: One of many, but certainly for those who know Justice Stevens, he is, above all, a meticulous lawyer. He is someone who takes the facts of cases very seriously. And the way the court treated the case, the way the court sort of changed the rules in the middle of the game, the way the court reached out to questions that weren't necessarily before it was very offensive to the conservative, small C, in Justice Stevens, and you can see that in his dissenting opinion. But that was not the only objection he had to what the majority did.
GROSS: Well, before we get to the other objections, let me just quote him. He says: they changed they being the conservatives on the court they changed the case to give themselves an opportunity to change the law.
Mr. TOOBIN: Exactly, and I think Justice Stevens' dissent illustrates what he believes is the rejection of truly conservative values that's embodied by the current Roberts court.
Conservatives used to be associated with the term judicial restraint, not deciding things they didn't have to decide, and liberals used to be known as judicial activists, but here you have a classic example, in Stevens' mind, of conservative judicial activism, of conservatives reaching out to find an issue in a case that wasn't even there to overturn the will of the people in the form of a law passed by Congress and signed by President Bush, to advance conservative values.
And I think that judicial activism offended Justice Stevens almost as much as the merits of the case.
GROSS: Other decisions that Justice Stevens has been unhappy with include Bush v. Gore, and he has a famous line from that, that I'll quote, that you quote in your profile on him: although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It's the nation's confidence in the judge as an impartial guardian of the rule of law.
Mr. TOOBIN: You know, I still get chills when I hear that. What a nerd I am. I just think...
GROSS: Well, you covered that whole story and wrote a book about it.
Mr. TOOBIN: I lived through Bush v. Gore in real time in Florida and then in Washington. And it is so characteristic of Justice Stevens that he would look at that case in terms of the judicial role, that above all, Stevens has confidence in judges. You know, he's not shy about saying that judges can handle things, that judges can manage difficult problems.
And he saw Bush v. Gore as an example of the judges in Florida making decisions to have recounts of the votes interpreting their law and then the United States Supreme Court stepping in for what looked like political reasons. Stopping the recount was something that he just couldn't abide, and that to him was the great offense of the case.
GROSS: Justice Stevens also wrote two very important decisions about the Bush administration war on terror, and both of these had to do with detainees at Gitmo. Can you briefly summarize his role in those decisions?
Mr. TOOBIN: Well, the two cases were the first one was known as Rasul in 2004. The second one was Hamdan in 2006. And basically what the Rasul case was about, initially when the Bush administration sent the detainees to Guantanamo, they said these people are outside the American legal system, they have no right to go to court period. And the Rasul case said yes, they do. They are under total American control, so they have the right to file habeas corpus.
In response to that, the Bush administration set up certain procedures, trial-like procedures that would determine whether the detainees would remain in Guantanamo. The Hamdan case was the case that said, per Justice Stevens, that those procedures were inadequate under, specifically, the Geneva Conventions, to protect the rights of the detainees.
And these were enormously important decisions not just nationally but internationally, establishing that the president of the United States had to work under the rule of law even in wartime, something the Supreme Court has rarely said in its history. And I think those two cases will be the central legacy of John Paul Stevens.
GROSS: Jeffrey Toobin will be back in the second half of the show. His profile of Justice John Paul Stevens is in the new edition of The New Yorker. Toobin is a staff writer at the magazine, covering legal affairs, and is a senior analyst for CNN. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. Im Terry Gross, back with Jeffrey Toobin. We're talking about his profile of Justice John Paul Stevens in the new edition of The New Yorker. Stevens turns 90 next month and is expected to retire soon. He served on the court for 35 years and has become one of its leading liberal voices, so his retirement is likely to have a big impact on the court.
Jeffrey Toobin is a staff writer for The New Yorker covering legal affairs and is a senior analyst for CNN.
How would you compare Stevens' interpretation of the Constitution with Justice Scalia's interpretation?
Mr. TOOBIN: Well, you know, one of the great constitutional dramas of the past couple of decades has been Stevens and Scalia arguing politely but emphatically with each other about just that question. Justice Scalia is associated with the school of thought called originalism, which means that the interpretation of the Constitution should be governed by what the framers of the Constitution thought the words meant in the 18th century when they wrote them. And, for example, most famously, the framers of the Constitution did not believe that they were establishing a woman's right to choose an abortion, so the Constitution does not protect a woman's right to choose.
Justice Stevens is associated with a different school of thought, which says the Constitution's meaning changes over time. That when you are dealing with questions like abortion, like wire-tapping, like wartime, the Constitution has to reflect the values that the 18th century authors imparted but the specific meaning reflects, in part, the change in the society as well. So that absolutist view of Scalia and that more flexible view of Stevens has been the central aspect of the conflict between them.
GROSS: I guess something I really dont understand about the kind of absolutist view, the literal view of the Constitution, is there's so many decisions about things that didnt exist in the 18th century, so you really dont know what the Founding Fathers would've thought about wire-tapping because there werent telephones, there weren't computers. I mean, there weren't corporations the way there are corporations today.
Mr. TOOBIN: Well, there are a lot of critiques of originalism and that's just one of them. Also, in the 18th century, the Constitution was written specifically with slavery permitted, and its referred to in the Constitution itself. Now, the Constitution has been amended many times. The 13th, 14th, and 15th Amendments after the Civil War abolished slavery and established equal protection of the laws.
So what does that mean? Do you look at the intent of the framers of the amendments or of the Constitution itself? Whose intent controls? How do you find out what they intended? What if different people intended different things? These are very hard questions and they raise questions about whether originalism is a useful way to interpret the Constitution. But Justice Scalia has been very successful in bringing that view to the Supreme Court.
GROSS: As Justice Stevens prepares to retire, I'm wondering if you think that the Supreme Court has become a less cordial place because it is so ideologically divided.
Mr. TOOBIN: I would say the Supreme Court remains a cordial and polite place. It is not a warm place. It is not a place where people hang out. The Chief Justice Rehnquist really established a rule at the Supreme Court which said, in effect, good fences make good neighbors. The justices, by and large, do not have a lot to do with each other except when they are in conference, at lunch, or in the courtroom.
And that - and they communicate with each other almost the exclusively by memorandum, not even by email. That has continued, by and large, in the Roberts court but with, I think, an additional level of tension because Chief Justice Roberts, who is so much younger than most of the other justices, is not regarded as a peer in the way that William Rehnquist was. And I think there is a sense - correct sense - that Roberts is interested in pushing the law harder and faster to the right than Rehnquist was, particularly late in his tenure.
So it remains a polite and cordial place but its not a warm and cuddly environment.
GROSS: There's been a lot of public criticism lately between elected leaders and the court, and I think that's maybe a little unusual. Like after the State of the Union Address well, just a few days ago Justice Roberts, speaking to law students, said that he found it very troubling to be surrounded by people who were cheering the president's criticisms of the court's decision giving corporations the free speech rights of individuals. President Obama had said that this decision opened the floodgates for special interests to sway the elections.
Justice Roberts said he thought that this criticism and the cheering for that criticism was a reason for justices to avoid going to State of the Union Addresses in the future.
Mr. TOOBIN: Starting with the State of the Union, when Justice Alito visibly reacted negatively to President Obama's speech, we have had a great civics lesson on what's really at stake and whos on what side at the Supreme Court. Because, dont kid yourself, the reason this tension exists and the reason Roberts and Alito are dissatisfied at the moment with Obama is because they disagree with him politically because there is a history there.
President Obama is the only president in history to have been a former senator who voted against the confirmation of this chief justice who swore him in. This is significant. We have a progressive liberal democratic president. We have conservative Republican justices in ascendancy at the Supreme Court. So when you see Justice Alito wincing during the State of the Union, when you see Chief Justice Roberts complaining about cheering at the State of the Union, cheering that he doesnt seem to have objected to when President Bush was in office and he was at the State of the Union, we are seeing the mask fall. And that's a healthy thing for the public to see because its just true.
GROSS: Well, you know, along the same lines, a few days ago, Senate Majority Leader Harry Reid criticized Justices Robert and Kennedy for the campaign finance decision and he said that the court was engaged in judicial activism. The Senate has held a hearing to help figure out how the court came to its conclusion on that case and the impact the case will have on democracy. Again, is it unusual for the Senate to be challenging a Supreme Court decision right after it's made?
Mr. TOOBIN: Well, its not all that unusual. Supreme Court wades into controversy all the time and Congress certainly has the right to respond in a way that's consistent with the Constitution. The problem the Senate and the problem Democrats face in responding to the Citizens United case is that once the Supreme Court says corporations have free speech rights like people, they have the last word on that subject. So the only way Democrats can respond legislatively is really at the margins. For example, they can tighten disclosure requirements about who - disclosing who paid for what speech. But they can't stop it and that I think is one reason why Democrats are so frustrated by this.
GROSS: If youre just joining us, my guest is Jeffrey Toobin and he profiles Justice Stevens in the new edition of The New Yorker, where Toobin is a staff writer. He's also a senior analyst for CNN. Let's take a short break here and then we'll talk some more. This is FRESH AIR.
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GROSS: If youre just joining us, my guest is Jeffrey Toobin. He's been covering the Supreme Court for many years. His recent bestseller was called "The Nine: Inside the Secret World of the Supreme Court." In this week's edition of The New Yorker he profiles Justice Stevens, who is likely to retire very soon. Toobin is a staff writer for The New Yorker and a senior analyst for CNN.
A couple of years ago, the Supreme Court overturned a Washington, D.C. handgun ban, saying that it violated the Second Amendment. And now there's another gun case at the Supreme Court. Tell us about that case and what the significance of it will likely be.
Mr. TOOBIN: Well, the case youre describing, the Heller case in 2008, said the federal government, which is how the D.C. law is treated, has to honor an individual's right to keep and bear arms under the Second Amendment. The issue in the case the court is currently deciding is, does a state have to honor the Second Amendment in the same way?
Over the many years, mostly in the '60s, the Supreme Court has said that all - most all of the protections of the Bill of Rights, the first 10 amendments, apply against the states, even though the words of the Bill of Rights say Congress shall make no law abridging the right to free speech, et cetera. And they have done what's called incorporation, applying those against the states. The question is, does the Second Amendment apply against the states? And its a tricky political question because liberals usually like incorporation. They like to apply the Bill of Rights against the states. They think that's a good thing, but they dont like the current interpretation of the Second Amendment, so they dont want that applied against the states.
My guess is the court will incorporate the Second Amendment and will ban gun control in the states and we are in for decades of litigation trying to figure out what gun control is legal and what gun control isn't.
GROSS: So, since the '08 decision overturned Washington, D.C.'s handgun ban and this new gun case before the Supreme Court is challenging a handgun ban in Chicago, if that handgun ban is overturned, does that mean that there will be no gun control? That the Second Amendment will prevent any form of gun control in the country?
Mr. TOOBIN: Well, this is one of the many open questions about the whole gun control area, because it will mean that no state can infringe on the right to keep and bear arms. What that means is hard to say. Does mean that you that you and I have the right to buy a Stinger missile? Does that mean we have the right to buy a tank? Now, my sense is I dont think that's what the Supreme Court is going to mean. But they are going to have to refine what they mean by keep and bear arms over many years. And this area of the law, which had been settled for decades, that the Second Amendment does not protect an individual's right to keep and bear arms, is suddenly wide open. And gun control is not just politically on the ropes, it is legally very much in question everywhere.
GROSS: So are these gun control cases also examples of what a lot of people would describe as judicial activism?
Mr. TOOBIN: Well, this seems to me a classic example of judicial activism, because the definition of judicial activism is the courts telling state legislatures, telling elected officials, we know better than you. Liberal judicial activism is telling the state legislature of Texas, you may want to ban abortion, we're not going to let you do that. But this is conservative judicial activism, saying to D.C., saying to Pennsylvania, saying to Illinois, you may want to ban machine guns, handguns, felons in possession of weapons, but we know better. We are not going to allow it.
GROSS: Does that mean no background checks or anything too?
Mr. TOOBIN: Well, you know, no one knows.
Mr. TOOBIN: I mean, you know, is a background check an infringement of the right to keep and bear arms? The National Rifle Association sure thinks so. The Supreme Court hasnt weighed in on that yet. But now that they have established that the Second Amendment establishes a personal right to keep and bear arms, all of those questions like background checks, like laws banning children from possessing guns, convicted criminals from banning guns, all of those issues are now on the table. And anyone who predicts exactly how the Supreme Court is going to come out on those issues is blowing smoke because nobody knows.
GROSS: So just to clarify, so did the '08 decision already throw all of this up in the air or is it the current decision that may do that?
Mr. TOOBIN: The '08 decision, the Heller case, said that individuals have the right to keep and bear arms against regulation by the U.S. government. The question now in this case is, do states have the right to regulate guns, not just the federal government? And if the answer is no, if they dont have the right to infringe on the right to keep and bear arms, the question is: is any kind of regulation of guns, the size of weapons, the registration of weapons, the background checks, the question is, is any of that still constitutional?
GROSS: When do you expect a decision to be handed down in the current gun case?
Mr. TOOBIN: I would say probably about April or May.
GROSS: That's pretty soon.
Mr. TOOBIN: Yeah.
GROSS: In the Supreme Court now, Stevens is preparing to retire. Justice Ginsburg might leave in the near future, too. She's fairly old and she's been sick. I mean, she had surgery for pancreatic cancer. So, say they both left in the near future, that would so change the court, wouldnt it?
Mr. TOOBIN: You know, Byron White, who served on the court for more than 30 years after he was appointed by President Kennedy, he liked to say, when you change one justice, you dont change one justice, you change the whole court. The dynamics always change in a group that small and we are now looking at a period of great turnover at the court. You know, 2005 you had Roberts and Alito.
Now, in 2009, you have Sotomayor. 2010 you have very likely Stevens leaving, another justice. So that's almost half the court replaced in less than five years. And I think it is a profound change in the court, especially when you change the chief justice too, and the justices are really feeling their way trying to figure out how this is going to affect their decisions.
GROSS: So when do you think Justice Stevens is likely to retire and do you have any clues who President Obama might appoint to replace him?
Mr. TOOBIN: Well, Justice Stevens was very candid with me about the timing of his decision. The last time I spoke to him was March 8th, and I asked him, when are you going to make up your mind? And he said, in about a month. So I think it's very likely that we will know soon whether Stevens is retiring and I think he will decide to retire.
This will not be a surprise to the Obama administration. They have very much suspected that a vacancy is imminent and I do think they have a candidate in mind and, frankly, I think I know who it is. I think it's going to be Elena Kagan, the current solicitor general, the former dean of Harvard Law School. She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which is, I think a point in her favor for Obama. There are all former judges on the court now and I think Obama wants people of more different backgrounds. So I think she's the likely choice.
GROSS: Is the fact that she's solicitor general now a good thing in a sense that she's already been vetted?
Mr. TOOBIN: Yes. She has definitely been vetted. She has been confirmed by the Senate for this job. Now, it is different to be confirmed as solicitor general, which is a appointment that only lasts for a president's term, and being confirmed for a lifetime seat on the Supreme Court. But the fact that she has been through the process, the fact that, you know, the conservatives in the Senate Judiciary Committee saw her in action and saw that she's a good performer in those circumstances, I think those are very much points in her favor. And a moment where Obama has so much on his plate, a relatively un-dramatic choice as Elena Kagan would be would be very much to his liking.
GROSS: Well, Jeffrey Toobin, thank you so much for talking with us.
Mr. TOOBIN: Good to talk to you, Terry.
GROSS: Jeffrey Toobin profiles Justice John Paul Stevens in the current edition of The New Yorker. He's a staff write for the magazine and a senior analyst for CNN. You can read the full text of Toobin's New Yorker article on our Web site, freshair.npr.org, where you'll also find background information on all of the cases mentioned in today's show. Transcript provided by NPR, Copyright NPR.