Courts - Missouri Legal analyst offers peek behind the bench Predicts Supreme Court is 'on collision course' with president

By Scott Lauck

The Daily Record Newswire

ST. LOUIS, MO -- When U.S. Supreme Court Justice Samuel Alito Jr. shook his head at President Barack Obama's characterization during the State of the Union of the court's recent decision to overturn decades of campaign finance restrictions, many observers saw an unusual breech of judicial decorum.

Jeffrey Toobin, however, saw a glimpse of the future.

"I thought that was a wonderfully real moment," he said at a speech at William Jewell College in Liberty last month. "It really told you what was going on in the Supreme Court -- and the political stakes of what's happening at the Supreme Court."

Toobin, a 1980 recipient of the Harry S. Truman Scholarship, was in Liberty to mark the 20th anniversary of the Truman Scholars Leadership, which is hosted annually at William Jewell.

Toobin, a staff writer at The New Yorker and a legal analyst for CNN, laid bare the Supreme Court's politics in his 2007 book "The Nine: Inside the Secret World of the Supreme Court." The bestseller delved into the personal lives of the justices and the ways in which their personalities have shaped history.

In the three years since, plenty more material has come Toobin's way. He predicts that the Supreme Court is "on a collision course with the president of the United States" in a struggle that is as much personal as it is legal and political.

For instance, Toobin said, Obama voted against confirmation of two of the justices -- Alito and Chief Justice John Roberts Jr. Toobin sees animosity in particular between Obama and Alito, noting that Alito declined to attend when Obama visited the court. Plus, the first law Obama signed -- the Lilly Ledbetter Fair Pay Act -- was a reaction to a court decision written by Alito that restricted the statute of limitations in which a woman could sue for unequal pay.

"As we say in New York, these two guys have a history," Toobin said. "There's going to be more tension between the Supreme Court and the president, and I can't wait to watch."

Toobin's speech also covered the appointment of Elena Kagan, with whom Toobin attended law school. Toobin said one of the most significant aspects of nominating the solicitor general and former dean of Harvard Law School is not what Kagan has done but rather what she has not.

"The fact that he has appointed a nonjudge is a big deal," he said. "She's the first nonjudge in a long time." Currently, all of the Supreme Court justices were judges somewhere else first.

Toobin said that says something about Obama's priorities. He noted that nonjudges used to serve frequently on the court; in what he called his favorite fact, none of the nine justices who decided Brown v. Board of Education in 1954 had prior judicial experience.

"[Obama] is someone who believes in politics, believes that political change comes not from the courts but from elections," Toobin said. He predicted that Obama might, if given the chance, name Janet Napolitano, currently director of the Department of Homeland Security. Once again highlighting the personality quirks that affect the bench, Toobin noted that Napolitano once represented Anita Hill -- the accuser of Justice Clarence Thomas in his bitter confirmation hearings in 1991.

"Think of the lively lunchtime conversation there might be if she were appointed to the Supreme Court," Toobin said.

In an interview before the lecture, Toobin stressed that while the Supreme Court may seem overtly political, that's a natural outgrowth of politically appointed jurists' being asked to decide the most controversial issues of the day.

"The court is a political institution, but I don't blame the justices for it," he said. "Yes, it is political, but that's the only way it can be."

He noted that retired Justice Sandra Day O'Connor has taken up the cause of encouraging states to adopt nonpartisan appointment systems over partisan judicial elections.

"It's a pretty good generalization that appointive state systems are better for the public than partisan elections," he said. "But that's a hard argument to make. You're arguing against democracy, and Americans like democracy."

Asked what an election for Kagan might look like, Toobin laughed.

"I don't think it would be Elena Kagan running," he said. "You would have politicians running. You wouldn't have people who were deans of law schools.

"It would be an unpretty picture," he added. "Fortunately, I don't think there's much chance of that."

Published: Mon, Jun 7, 2010


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