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.