Live from W&L high school, with Yorktown on video – Toobin!

APS students filled the School Board Room for the Q&A

Toobin talks about why he wrote The Nine instead of a legal thriller:

He says that Rehnquist recognized that the Justices believed what they believed, so he set up the Court so they didn’t have to communicate much in person – ‘good fences make good neighbors’.   They could do everything by memo instead of in person.  This surprised the public - Why wouldn’t the Justices talk to each other, since they can’t talk to the public?  But they just don’t socialize.  The exception is Ginsburg & Scalia – they have things in common – both from NYC, both still have NY accents, were both on the DC Circuit Court of Appeals where they became friends, both love opera.  Ginsburg is a shy, retiring person, while Scalia is brassy and outgoing – but Ginsburg’s husband, Marty, is similar.  Also, Marty loves to cook, and Scalia loves to eat.

Toobin tells a funny story about David Souter being mistaken for Steven Breyer:

Diane Kresh – Getting the in depth look at Sandra Day O’Connor that we got from The Nine was a surprise – can you talk about that?

JT – She is sort of the protagonist of the book.  He says he’s always been interested in the intersection of personal and political.  O’Connor came to the court relatively young, only 50, and she had to make her way in the Court, in a relatively conservative Court, and an increasingly social conservative Republican party.  The Terry Schiavo case really alienated O’Connor from the Republican party - she didn’t think the government should be involved.  At this time her husband was getting Alzheimer, and the government telling a family how to deal with a critically ill family member really bothered her.

Toobin wants to talk about students right cases in the Supreme Court, because this is a high school audience.  He refers to the Ibuprofen/strip search case that was argued last week, and it looks like some of the students haven’t heard the case details.  Toobin says students at school have many less rights than people do in normal life.  He moves to a Supreme Court case that started with the Olympic torch passing through Alaska.  A student who held up sign on the torch-route that read ‘Bong hits for Jesus’ was suspended from school.  The oral argument included the question ‘what exactly what does Bong Hits For Jesus mean?  The student said it didn’t mean anything, he just wanted to get on TV, but even so, the Court said that the school had right to discipline him.

Now for the student’s questions.  Alan from HBW – with the Democratic shift in the House and Senate, and the only power for the Republican party being through the Supreme Court, what do you see to be the future of the Court?

• Yesterday, the voting rights act argument was the last of this session – Conservatives look like they’re going to strike it down, setting up what you’re talking about – the House & Senate set against the Court.   If Obama serves 4 or 8 years, he will have several appointments, but regardless Toobin sees conflicts ahead, especially in the area of race.  Affirmative action is unconstitutional – but that’s something the congress is not going to agree with.

TD from HBW – Who would Obama appoint?

• Obama was president of the Harvard Law Review, and the president almost always becomes a clerk for the Supreme Court. But Obama did not become a clerk - he went back to Chicago and started running for State office. Obama likes politicians – look at his Sec of State – Clinton, and his Cabinet in general.  All 9 of the current judges were judges before they came to the Supreme Court,  but go back to Brown v. Board of Ed, and in 1954  none of them been judges before joining the Court - they were all politicians.  So Toobin thinks Obama will choose a politician, not a judge.  VA Governor Kaine?  MA Governor Duval Patrick? Janet Napolitano?

A Yorktown student asks about torture cases – If one reaches the Court, what do you think they’ll do? (anybody know his name?)

• Right after 9/11, people were taken right off the battlefield in Afghanistan, straight to Guantanamo – the Bush administration said ‘these people have no rights’.  But in a series of cases between 2003 and 2007, the Court each time said, “no, these people do have rights, and the procedures set up by Bush admin were insufficient.”  The worst times for Court have always  been war time, when they get swept up in war fever.  The WW2 case on Japanese internments is the worst example – now all Justices say it was wrong.  But the precise question before Obama is whether anyone who authorized torture should be prosecuted - and that’s not a Supreme Court choice.  They only get involved if prosecution is appealed.

Jordan from HBW – a question about Clarence Thomas:

• Justice Thomas is one of the most interesting of the Justices - he arrived on the court after tumultuous hearing, and he is still very bitter. Thomas never asks question – he didn’t ask a single question last year, he spoke not a single word.  But at the Court itself, he’s very popular, gets along with his colleagues.  But as you can see in his book, he’s bitter about Liberals. (watch a funny anecdote about Scalia’s take on Thomas)

Steven from HBW – Why do you think abortion rose as the most important case in the court?

• See video – Toobin says the case affects everything

McKenna from W&L – How do race and gender affect the choice of who should be appointed to the Court next?

• Ginsburg has said that she never thought she would be the only woman on the court.  All the old arguments – especially that there aren’t enough qualified women coming out of good law schools – are over.  And if Ginsburg leaves, he’ll have to appoint a woman.  There’s also never been a Hispanic – Sonia Sotomajor would be a good choice.

Will from W&L – how has the dynamic between Justices and their clerks, who are sometimes gay, affect the Justices, and what’ the time frame within which we could have an openly gay justice?

• When Bowers v. Hardwick, about whether consensual sex between men was illegal, came to the Court in 1985, Powell said to his law clerk ‘are there really gay people?’  The Clerk himself was gay, but he didn’t tell Powell. – This is an example of how much the world has changed – even the most conservative Judge couldn’t say today that he doesn’t know any gay people.  But this doesn’t mean that the rights of gay people are a solved question.  So it’s going to take a while for the an openly gay person to sit on the Court.  But it’s also quite possible that Obama will appoint an openly gay person to a lower court.

Elizabeth from HBW – What were the best and worst students rights cases?

• Tinker was best – bong hits for Jesus case worst.

Matt from HBW – does having a split court hurt the court’s efficacy?

• Toobin’s view on this is different from that of a lot of people – Roberts said the Court needs to be unanimous, but he disagrees.  People will always disagree – compromise isn’t always the answer.

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