Transcript: Thom Hartmann & Jeffrey Toobin - The Supreme Court. 24 August '11

Thom Hartmann: And welcome back, Thom Hartmann here with you. Six minutes past the hour. Broadcasting on stations from California to New York, from the northern border to the southern frontiers. In Europe and Africa on Pacifica Radio, on commercial stations all over the United States, on DirecTV and Dish TV by Free Speech TV Network. All over the place. Welcome! Jeffrey Toobin on the line with us. The attorney, legal analyst for CNN and author for the New Yorker, author of a number of books including The Nine: Inside the Secret World of the Supreme Court. A fascinating glimpse into what’s, you know what, how things acutally work there. He has a new piece by Jeffrey Toobin, "Partners... Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan?" in the current issue of the New Yorker. You can see it over at or better, pick it up on the stands. Jeffrey, welcome back to the program.

Jeffrey Toobin: Hey Thom, how are you?

Thom Hartmann: I am very well, thank you, and pleased to have you with us. Will Clarence and Virginia Thomas succeed in killing President Obama’s healthcare plan?

Jeffrey Toobin: Well I think it’s a tough call at this point. I think it’s a virtual certainty that the case will go to the supreme court this fall and we’ll have a decision sometime in the spring of 2012. I think there are four sure votes to a poll block, the four democrats. Ginsburg, Briar, Sotomayor and Kagen. The question is, can they get a fifth. They’re certainly not going to get it from Thomas, and Thomas is the surest vote on the other side. I mean obviously the most likely candidate to vote with the liberals is Anthony Kennedy and there are aspects of his history that would suggest he has a traditional view of the scope of federal power. But the world is changing and the republican party is changing and the conservatives on the supreme court, just as the conservatives in congress, are more conservative than they used to be. And so I think anyone who predicts with certainty is really blowing smoke.

Thom Hartmann: Well and Lewis Powell of all people. I’m forgetting the decision, it was some research I was doing the weekend before last for a book. Back in the ‘70s or ‘80s wrote in one of his opinions about how ever since Marbury, ever since you know the judicial review was established that in the early years the court used it very little, very rarely. And there have been times when the court used it rather aggressively but that should the court use, you know basically overturn legislation done by congress and the president, for what is perceived as political purposes, that there could be significant blow back and he specifically mentioned 1937. In which case Justice Roberts famously, the then Roberts, started changing his tune because after Roosevelt’s unsuccessful court packing scheme Roberts was basically humiliated by the public and then within the next few years most of the conservatives just basically retired from the court, they were all pretty old by then anyway. But you know, is it possible that public opinion could have influenced this?

Jeffrey Toobin: I think the real lesson of the crisis of the 1930s that the supreme court where the court dominated by conservatives struck down a lot of new deal legislation. The real lesson is who wins presidential elections controls the supreme court. And you know, the question of who wins in 2012 is really enormously important as far as the court goes. And I think, I mean it’s obviously, I don’t think there’s going to be any change in the membership of the court between now and the next election, but you know we’ve had a fairly even number of democrats and republicans over the past, you know, 20 years, and that’s reflected in the very even split on the supreme court. But it is also significant that the republican appointees, particularly Roberts and Alito, are more conservative than the republican appointees they replaced, Renquist and O’Connor.

Thom Hartmann: Yeah.

Jeffrey Toobin: And I think that reflects where the republican party has been moving in recent years and presumably will continue to move over the next decade.

Thom Hartmann: Well and that was the point I was going to make was that, first of all you say he who is president, or she, determines the supreme court. I’m assuming by more than just appointment. It actually, you know, took Roosevelt basically four or five years to beat this into these guys heads, you know.

Jeffrey Toobin: Right. What a lot of people forget about Roosevelt is, you know, he ultimately had eight appointments to the court. In his first term from 1933 to 1937 he had zero.

Thom Hartmann: Right, right. And they were frustrating his efforts like crazy, particularly in ’35 and ’36. So but the, to bring this to this day, in 2000, arguably it wasn’t the president that influenced the court, it was the other way around. The court brought us a new president in Bush v. Gore. And Sandra Day O’Connor was wretched about it, after she left the court.

Jeffrey Toobin: She, you know, one of the great unanswered questions about the supreme court in recent history is whether Sandra Day O’Connor regrets that vote. I mean she is not the kind of person who speaks of regret much. She is someone who always looks forward. But O’Connor grew very alienated by the Bush administration. And if you see her post-supreme court career since 2005 you see that she has essentially embraced a lot of progressive causes. But I think everybody remembers the results in Bush v. Gore and that led to eight years of a very conservative president.

Thom Hartmann: Right. And you know, she might have, in a case like this, in a case like the healthcare case, I mean she was, as conservative as she was, she was a moderate compared to Roberts and Alito and Scalia and Thomas.

Jeffrey Toobin: Very true. And I think one of the things that is very important to recognize about the healthcare case is that ten years ago, 15 years ago, this wouldn’t have even been a question. The commerce clause as a basis for federal jurisdiction has essentially been a blank check since the 1940s.

Thom Hartmann: Yeah. And well Bobby Kennedy used it aggressively against people like George Wallace and…

Jeffrey Toobin: Absolutely and the idea that a regulation that effected the national economy as god knows healthcare certainly does, that that could be unconstitutional as a violation of the commerce clause, just is completely implausible. In fact you know the most controversial aspect the individual mandate, essentially forcing people to buy insurance. Conservative foundations were pushing that in the ‘90s. not only did they think it was constitution, they thought it was good idea.

Thom Hartmann: Richard Nixon proposed it in, what was it, ’72? ’73?

Jeffrey Toobin: Sometime in his term. And I’m forgetting whether it’s Heritage or American Enterprise Institute. But one of them had a very prominent plan to establish an individual mandate. So the idea that it is unconstitutional, just illustrates how the legal economy, the legal thinking has moved to the right.

Thom Hartmann: But this, and this court has just gone nuts. We thought campaign contribution limits were stare decisis in 1907 the Tillman Act for example, it’s been changed and wharfed and woofed over the years but still. And then they come along with Citizen’s United. Very quick question, we have just a minute left. Section, article 3, section 2 of the constitution says, “The supreme court shall have appellate jurisdiction both as law and fact with such exceptions and under such regulations as the congress shall make." Is there any possibility that the congress might start regulating the supreme court?

Jeffrey Toobin: You know there’s been talk about that over the years. I mean for better or worse, and I think it’s probably for better, the congress doesn’t mess with the supreme court. Arlan Specter used to talk about forcing the court to televise it’s arguments. And even that was considered you know too much of an interference. I don’t see any chance realistically of a limit on the supreme courts jurisdiction.

Thom Hartmann: So we end up with nine kings basically who decide all our laws.

Jeffrey Toobin: Exactly.

Thom Hartmann: I don’t think that’s democracy.

Jeffrey Toobin: Well, that’s judicial review.

Thom Hartmann: That it is. I have some problems with Marbury versus Madison but that’s a whole other conversation. Jeffrey Toobin. The New Yorker, His new piece, “Partners: Will Clarence and Virginia Thomas Succeed in killing Obama’s Healthcare Plan." Thanks for dropping by sir.

Jeffrey Toobin: Good to talk to you Thom.

Thom Hartmann: Good talking with you.

Transcribed by Suzanne Roberts, Portland Psychology Clinic.

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