Toobin talks Supreme Court, past and present

CNN chief analyst says court is at a ‘tipping point’.

CNN chief analyst Jeffrey Toobin tells the audience that understanding the history of the Supreme Court can provide context for its present state. — Lexi Pline

In order to understand the complex dynamic of today’s U.S. Supreme Court under President Donald Trump, Jeffrey Toobin says, Americans must first understand how the court was operated and structured in the past.

Toobin, chief legal analyst for CNN and a staff writer at the New Yorker, spoke to a packed MVRHS Performing Arts Center Thursday night about how the decisions and practices of past justices provide context for the position the court is currently in. The presentation was part of the Martha’s Vineyard Hebrew Center Summer Institute.

He said before Justice Antonin Scalia’s death in 2016, there were six men and three women on the Supreme Court. There were also six Catholics and three Jews.

“I hope those numbers are interesting facts about the Supreme Court, but here’s an important number,” Toobin said. “There were five Republicans and four Democrats.”

Toobin said it is sometimes assumed that the Supreme Court represents a departure from the “world of partisanship” seen at the U.S. Capitol or in the presidential race. “I am here to tell you, for better or for worse, that’s not the case,” Toobin said. “The Supreme Court is not just polarized in the same way other branches of government are, but it is polarized along almost exactly the same lines — political party lines.”

He said that wasn’t always the case, “but now it is.”

The last time there was a significant ideological majority in the Supreme Court, according to Toobin, was in the mid and late 1960s, when there was a substantial liberal majority, advocating for a liberal agenda.

“Every Saturday, Chief Justice Earl Warren and Associate Justice William Brennan would meet and think about how they were going to take the cases and decide the cases that would move the law in the direction they wanted,” Toobin said. “Over the years, there were substantial liberal landmarks.”

Toobin used the case of Roe v. Wade as an example of how dramatically the ideologies of Supreme Court justices have shifted since the era of President Richard Nixon.

He noted that Roe v. Wade ended in a 7-2 opinion in favor of a woman’s fundamental right to choose whether to have an abortion.

“Three of the four Nixon justices were in the majority in Roe v. Wade. That tells you something about where the Republican party was in the ’70s,” Toobin said.

Another theme Toobin touched on was the contentious nature of the Supreme Court under Chief Justice Warren Burger.

He said he was inspired by a book by Bob Woodward and Scott Armstrong called “The Brethren,” which taught him that “those sorts of contentious relations were the rule more than the exception.”

Under Chief Justice William Rehnquist, Toobin said, the justices got along well because Rehnquist had brought about a “tremendous” reduction in the court’s workload.

He said in the 1970s and 1980s, the court was deciding 150 cases a year. In 2005, they were deciding 70 to 80 cases a year.

“I don’t know if you are familiar with the concept that people prefer less work to more work,” Toobin said. “That goes for Supreme Court justices too.”

Toobin said one dividing point in the history of America was the court’s decision in Bush v. Gore, which settled a recount dispute in Florida’s 2000 presidential election.

Bush v. Gore had a perhaps unexpected aftermath,” Toobin said. “The court moved to the left.”

The court ended the death penalty for the mentally disabled, ended the death penalty for juvenile offenders, saved affirmative action, and rejected positions of the Bush administration regarding treatment of detainees in Guantanamo Bay.

He said most of the judicial activists on the Supreme Court used to be Democratic justices, but now, under John Roberts, much of the activism comes from conservatives. “They are beginning to deregulate American politics,” Toobin said.

Toobin said one thing President Trump recognizes and exploits about American politics is the general idea that “Republicans care more about the Supreme Court than Democrats.”

“There is already a clear agenda at work; this is why the next election is so important,” Toobin said.

He mentioned that the opportunity to appoint a Supreme Court justice after a vacancy is one of the most consequential and poignant legacies a sitting president can leave.

More liberal-leaning justices such as Stephen Breyer and Ruther Bader Ginsburg are getting older, and may be nearing the end of their careers, he said. “Ruth Bader Ginsburg is 86, and with all due respect, 86 is not the new anything,” Toobin said. “If Trump has more appointments to the court, things will be very different.”

There are already five votes in the court to overturn Roe v. Wade, and Toobin said if Trump appoints more justices like Neil Gorsuch and Brett Kavanaugh, the court will begin to approve laws hindering voting rights, expanding the Second Amendment, and ultimately may overturn the Roe v. Wade decision.


  1. Politics in this revered segment of our republic? Dastardly impact by Presidents, actually. It was certainly OK for Obama to add two confirmed liberal justices when he had the opportunity. Live with it. Stop whining. Your chance will come again, Mr. Toobin.

    • The supreme court is a quasi-medieval institution. They ought to have term limits, and those out to be scattered between presidencies rather than luck of the die. It’s down to the health of a couple octogenarians whether or not women will have basic human rights. Preposterous.

  2. During prime time CNN has dropped to the 15th most watched channel behind the Hallmark Channel and the Investigation Discovery channel, which I have never heard of, yet this guy packs the PAC with CNN groupies who are as out of touch with reality as his network. It would be fairly humorous if it wasn’t so sad to see the people attending this lecture find him, and themselves, relevant.

    • Knowledge, intellectual understanding, and insight will always be relevant, no matter how low a bar Trump sets, no matter how angry and resentful these pursuits make 45’s supporters.

      • It seems to me it’s the Left that’s angry and resentful. Trump supporters are gleeful and content with the peace and prosperity he has brought our nation.

        • You admit to sadness. And Trump supporters never sound gleeful– unless you are referring to the Trump supporter who said “I love the guy”, after he was fat-shamed by the obese president. This is why insight will always be relevant. Saying something does not make it true, no matter how often it is repeated.

          • “Saying something does not make it true, no matter how often it is repeated”. That applies to everyone, right?

          • If you like your doctor you can keep your doctor.
            If you like your health plan you can keep your health plan.
            Saying something does not make it true, no matter how often it is repeated.

          • Geno, I was typing quickly and left out a word from my comment. It should read: Saying something false does not make it true,no matter how often it is repeated. You understand Trump lies all the time, right? He lies about nonsense, like the size of crowds, and he lies about serious and dangerous things, like climate change being a hoax and his racist birtherism lie. Too mnay Republicans ignore the lies while angrily decrying facts and insights, in this case, about the Supreme Court. Then they claim how happy they are. That is simply untrue. Trump supporters are not a happy bunch.

    • BS, so truth is based on popularity, and facts premised on the viewing audience? Michigan’s “Man of the Year” would agree with you.

      • No I don’t think you have grasped my point. This man, his network and by association the people in the audience have lost their relevance. They are on the fringe of current political and intellectual thought

        • And yet you are intellectually unable to respond to any of the substance of what was discussed, simply because you’ve fallen for all of Trump’s lies, in this case, about the media. It’s laughable to deny the relevance of politics within the Supreme Court and its history. Further, saying Jeffrey Toobin and everyone who attends these discussion are “on the fringe” is silly, lacks insight, and most important, is untrue. There is nothing intellectual about promoting lies. Trump supporters are in no position to be talking about anything intellectual. i just read that 54% of Repubs think that higher education is a waste. Lol to your comments because they are not based in any reaity, except for the president’s, who you have know lies when his lips are moving or his fingers are typing. Again, constantly repeating something untrue does not make so. You missed the point of what this event was about/don’t understand it, and instead are angry that it happened.

          • Add me to that 54% who think higher education is a waste and I have an MBA! Today’s colleges are ripping off the middle class with exorbitant prices and debt that will cripple the economy. Anyone with a pulse can get a college loan and a degree these days. Degrees are becoming increasingly worthless.

          • Sadly the state of politics today is that EVERYONE lies. Republicans, Democrats, POTUS candidates, governors, mayors – the list is endless. The demise of the original goal of politicians, to represent and support constituencies, is long gone. Their only goal is to grab more money to support their reelection, thereby insuring that they keep a cushy job with a golden pension at the end. Your liar is better than my liar? Hardly.

          • BS, tell us again how Trump supporters are “gleeful and content”– with anything. You don’t/can’t appreciate discussions of the historical and current significance of the differing political parties impacting the Supreme Court, so you dismiss them as irrelevant. What you are actually saying is that the examinations of history and fact are irrelevant to you personally and you resent anyone who goes to listen to these kinds of talks that are in fact enlightening. Dismissiveness due to a lack of insight and understanding and knowledge is why your argument isn’t even an argument. It’s just a harague with no substance.

          • Jackie. He never mentions how badly argued Roe/Wade was passed and that most judicial scholars agree that the right of privacy argument as foundational for Roe is very weak. He also hid a ten year extra marital affair and denied it when presented to him with love child. This man lacks credibility just as Trump does to you. Isn’t that fair?

          • Higher education at current prices is a waste and it would be better to become a plumber or electrician. Paying Amherst 50 k for a degree in Hindu studies is wasteful.

          • The reason the cost of higher education is outrageous is that a university hires a liar , Elizabeth Warren who claimed minority status in order to get the job, and pays her 400k per year to ‘teach’ one class. Imagine the outrage if a white male made the same heritage claims in order to get a job. But hey i get it..she’s a liberal democrat so she gets a pass by 99% of the media.
            Better to learn a trade as andrew recommended.

  3. All I can say is I’m glad I was busy that night !!! Actually I could of desperate to go and see anyone that night and I still would”t of wasted my time seeing and listening to Mr. Toobin

  4. No, Geno, no one is like Trump. Going for the whataboutism argument no longer works when looking at who Trump is. He isn’t just a liar. He praises neo Nazis and murderous dictators, while denigrating POWs and the grieving parents of war heros. He calls Mexicans rapists and asylum seekers “invaders”. He namecalls like a two-year old. And he is cruel. And incompetent. It’s one thing that he got a lot of votes based on promises of buildiing a wall that Mexico was going to pay for, but at some point, every Trump supporter is going to have to come to terms with the kind of human being Trump really is. No one would want their children or grandchildren to grow up and behave as he does. He is disloyal. He is ignorant of our constitution and of all history– and geography! He’s getting worse. As the country likely moves into recession from the actions of the morally, emotionally, intellectually, and ethically bankrupted conman you voted for, you will have to come up with a better story than “everyone else in politics does it”. No, they don’t. There has never been a leader of our great country who behaves like Trump.

  5. Andrew, as far as looking at the immoral personal lives of accomplished men, I see it as the Placido Domingo effect. Should we throw out all his recordings or do we still get to appreciate the voice of an angel? Everyone has to weigh their own level of what a “sinner” (a word I think you like) has to offer the world. I can see nothing, zero, zip that is redeeming about Trump. He offers nothing that is good, nothing that is admirable. He makes everything worse, including our standing in the world. He’s even managed to make anti Semitism worse by getting Netanyahu to be another Trump sycophant, making Israel look even worse than it already does. And I can’t stand Tlaib or Omar and despise BDS, but Trump does nothing but throw gasoline on the fiery anti Semitic hearts of those who do not separate Jews from the government of Israel. Trump makes people who actually believe in the democratic process have to stand up for those two women even though they definitely spout ignorance and anti Semitic tropes.

    • i wrote this yesterday, before Trump declared that American Democrat Jews are disloyal to our country– or they are ignorant. Do you know who else said Jews are disloyal to the state? Hitler. Tell me again that Trump is not an anti-Semite. He has done more to promote anti-Semitism than anyone. And you support him. You also said to me a couple of weeks ago that Jews who do not support Trump are not good Jews. My take is that people who say they are Christian and support Trump are fake-Christians.

        • “All this was inspired by the principle—which is quite true within itself—that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. ” Chapter 10 of James Murphy’s translation of Mein Kampf:

      • Jackie. I have never said that Jews who do not support Trump are not good Jews. Jews historically are liberal for many reasons. I have the greatest admiration for Israel and the Jewish people due to my evangelical roots. Also Gods plan and promise that God has a covenant with the Jewish people—- unconditional. Trump is not my role model due to character, temperament, personality—- he is not. However his policies in general are good for the US. You and I will disagree. He is most certainly not anti Semitic. Netanyahu would see through it in a minute and would many Jews on the conservative side.

        • Andrew, you do not recognize Trump’s blatant racism and misogyny and his divisive rhetoric against Mexicans, Muslims, asylum seekers, “nasty” women, veterans, gold star parents, etc. I would not expect you to see his blatant anti-Semitism, either. Today Trump clarified that his “disloyal Jews” declaration was intended to mean that American Jewish Democrats are disloyal to Israel. While you stand on your head to try to tell me how an American citizen can be disloyal to ANOTHER COUNTRY for not being a Republican and supporting a president they disagree with, I will tell you this: Calling a Jew disloyal is an old, old antisemitic trope. Trump is a pathological liar who has lost whatever marbles he had.He is an anti-Semite, a racist, a misogynist, an Islamaphobe and xenophobe, and the worst president this country has ever seen. He’s done nothing good for anyone, his policies are awful even though you’ve bought his lies about who is better off. Even now he is extending the length of time from 20 days that undocumented immigrant children can be held, separated from their parents, to an unspecified time. What kind of decent leader of a democracy does that? What would your Jesus think? And finally, you do not get to say how Jews think because your view is colored by your religious beliefs that are not shared by any Jew anywhere, whether liberal or conservative. The funny thing about Trump’s insane retweet of that conservative conspiracy theorist who tries to say that Trump is like the King of the Jews and the Second Coming to the people of Israel, is that there is not a Jew on the planet who believes there was ever even a First Coming. We American and Israeli Jews and Jews all over the world do not believe in your Jesus. Any Jew who believes in Christ is a Christian, so it is strictly a Christian fantasy that the anti-Semite and Racist you support is somehow good for Jews. He is a disaster for Jews, and a disaster for every decent person in this country. I have no doubt that even you will come to terms with Trump being very bad for this country.

          • Ok Jackie we disagree. For the record there about 400k messianic Jews worldwide today—- Jews who believe in Jesus as Messiah and they remain Jews since they are descendants of Abraham. Tell them they are Christians and they will laugh at you. I could convert to Judaism and still not be a Jew. You can be vehemently anti Trump but you should not decide who is a Jew and who is not based upon their faith.

          • Andrew, for the record, the term messianic Jew is an oxymoron. A Jew who has become a Christian has converted. A Christian is a person who believes in Christ and Jews do not. No Jew believes in Christ, period. If they do, they are no longer Jews, but Christians. Evangelicals do not get to dictate who is a Jew based on their fantasy about Israel and all Jews accepting Christ, but that’s what they do. There is not a Jew on the planet who agrees with you. Your definition is what Evangelicals believe but you cannot impose your belief on others who do not accept your beliefs including your belief in Christ. But yes, I understand evangelicism and the obsession with Israel. It is your story and your belief, not mine or any other Jew’s on the planet. Jews who convert out of their religion into Christianity are no longer considered Jews, except by Nazis, anti-Semites, or evangeilicals.

    • Jackie, I feel about Toobin the way you feel about Trump. 60 million voted for Trump. Are we all Deplorables? It is demonstrably unfair for you to to delegitimize Christians based upon their support of Trump, and I think you know it. Christians choose secular leaders not on the qualifications of New Testament nor on the Torah or Tanakh. Respectfully you are condemning yourself with a false accusation of me. A Christian is simply one who believes in the substitutionary atonement of Christ for ones sins. Politics has nothing to do with it. Jews are those who descend from the seed of Abraham and even if they worship Jesus as Messiah they remain Jews. I understand your dislike of Trump but condemning supporters as bigots or racists or supremacists is not useful.

      • Toobin is not the president. It doesn’t matter a fig to anyone’s life if you detest Toobin. It matters to everyone that the president is who he is because his actions impact so many so negatively. White Christian men who are well off are the least negatively affected. My feelings about reliigious people who do not practice compassion for others is that they are bad people, no matter what religion they claim. There are people who have no religion at all who are decent, good Americans, unlike all these bigots who think they are Christians. That is fair. Why don’t you stand up for what Trump is doing to immigrant families? You can’t. You can try to justify your support of an immoral, un-Christian leader with words that mean nothing. Real “Christians”, people who embrace the teachings of what you say you worship, don’t accept Trump. Religion should be a way of life, a way to act this world, not just some empty words about some stories that have nothing to do with how you treat others. In my view, religious people who say they support Trump are fake religious people, no matter what religion they pretend to practice. I did not think that all Trump supporters were “deplorables” at first, but if you see what is happening with him, and it'[s getting worse, and still support him, you bear that burden of what others think of you. If you stand up for a bigot, and a crazed bigot at that, you are not being “Christian”. You can repeat as often as you like that Jews who accept Jesus are still Jews, and you’d stil be wrong.

        • I get it Jackie. If you as a Jew decide to become a Buddhist, you will no longer remain a Jew. You have explained it so well to me.

  6. The truth is very simple. As we sit and argue about the left or the right they both get rich and richer. They want us divided because a divided people are easy to keep in line. We see their division and we get all incredulous about it, when in reality when the cameras are off they mingle with each other and decide on what to do about matters that really matter to them which is anything that benefits them and only them. Stop the bickering and realize we are all just pawns.

  7. Lol, Andrew. Buddhism is not a religion, certainly not in the terms we are discussing. But you go ahead a keep calling apostates whatever you like. Good luck in the apocalypse.

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