NPR’s Terry Gross brought on CNN judicial analyst Jeffrey Toobin on Monday to discuss his new book on the Supreme Court (called The Oath) for 44 minutes of her program Fresh Air. Toobin proclaimed that Barack Obama is the conservative when it comes to the Supreme Court, and John Roberts is the radical revolutionary. This is the same Toobin who complained overturning ObamaCare would be "judicial activism."
Toobin also claimed with a straight face (or at least an ungiggly voice) that Roberts voted to uphold ObamaCare to pave the way for more conservative decisions, to insulate the court from being found as political in the future -- as if liberals won't denounce every conservative decision as political. Toobin also continued his tradition of bashing Clarence Thomas as "way out there" on the right-wing fringes.
But first, this was the sales pitch Gross used to open the show about Obama and Roberts:
TOOBIN: Well, one of them believes in change. One of them believes that the Constitution has fundamentally been misinterpreted by the Supreme Court for the past 20 or 30 years, and the one who believes in change is John Roberts, not Barack Obama.
Barack Obama, oddly, and frankly somewhat surprisingly to me, Obama is a great believer in stability, in the absence of change when it comes to the work of the Supreme Court. He is the one trying to hold on to the old - the older decisions, and Roberts is the one who wants to move the court in a dramatically new direction.
GROSS: So I think what you're saying is that Obama is the conservative when it comes to the court, and Robert is the judicial activist?
TOOBIN: That is exactly right, and if you look on issue after issue, whether it's abortion, whether it's civil rights and affirmative action, campaign finance, death penalty, Roberts is pushing the law in a more conservative direction, usually, not always, successfully. And all of those areas, Barack Obama's philosophy is basically better leave it alone, leave it the way it is.
Toobin tried to break out the apologies when Gross began discussing how the conventional wisdom shifted dramatically after oral arguments. Suddenly, ObamaCare looked like it was toast:
GROSS: So it was the solicitor general, who - Donald Verrilli, who defended Obamacare in the Supreme Court. He was considered to have stumbled a lot. That led to the assumption that Obamacare was going to be overturned by the court. What were considered his greatest stumbles?
TOOBIN: Well, let me have a moment of candor here and confess that I, when I was working for CNN in sort of my instant analysis role was very critical of Don Verrilli's role. And, you know, my view of Supreme Court arguments is that what the justices say is a lot more important than answer.
Yes, Don Verrilli did not do a great job in answering the questions, but what was so striking about the answers - about the questions - was the degree of hostility he received from Kennedy, from Thomas - not from Thomas. Thomas, of course, didn't ask any questions - from Scalia, from Alito. The passion and the intensity of the hostility to the law was really what was so striking.
And it has been my experience in covering the Supreme Court for quite a while that the justices don't play devil's advocate. They use their questions to try to convince their colleagues of their positions. So it's not - so you can often tell how they're going to vote by how they ask questions. In this case, let me just say I was completely and utterly wrong about how John Roberts was going to vote in this case.
Gross doesn't treat Toobin with any kind of factual scrutiny. (She has saved that for Bill O'Reilly and other very occasional conservative guests.) She could have reminded Toobin that he began by trash-talking that Roberts would vote for ObamaCare, that in fact it might end up eight to one in Obama's favor. Toobin also told Gross that Roberts was helping out the conservatives by voting against them:
I think it's more beneficial to the conservative movement in a somewhat more indirect way. What John Roberts has done is by supporting Barack Obama on this critical piece of legislation and litigation, Roberts has insulated the court from political challenge for a long time. And Robert has a big conservative agenda still. And he is going to be able to push that agenda without risking criticism now for being a political activist because of this vote.
So look at the issues that are on the horizon for the Supreme Court: the future of affirmative action; the future of the Voting Rights Act; gay rights in many different forms. In all of those...
GROSS: Should we put abortion in there, too?
TOOBIN: Abortion, too. In all of those areas, you know, John Roberts has not suddenly discovered his inner moderate. He remains deeply conservative. He is going to be pushing his agenda, and he now is free from the risk of being accused of politicizing the court because of his vote in this case. And that's a great benefit to the conservative movement.
GROSS: Are you saying you think that's one of the reasons why he voted to uphold Obamacare?
TOOBIN: I do. Again, I'm a little - you know, I'm always a little wary about talking about people's motives, and I can't prove this, but given his conduct in this case, it is very clear to me that Roberts was worried about the institutional place of the Supreme Court in American political life.
He was worried about making this case part of a trilogy, with Bush v. Gore, Citizens United; two highly political cases where five Republican justices did what many people regard as deeply political acts. If he had made the Obamacare case the third in that trilogy, we would be talking about the Supreme Court a great deal more in this campaign. The justices would be political targets in a way that they're not now. And I think that was very much on Roberts' mind.
Finally, Toobin, as he often does, trashed ClarenceThomas as the leading edge of conservative extremism, especially on the subject of campaign finance reform:
GROSS: I know you have a lot of connections to the court. I'm not sure if the justices spoke to you about this decision directly or not. But do you have any reason to believe that any of the justices who upheld Citizens United are dismayed by the results it's actually having in politics today?
TOOBIN: Quite the opposite. I think Citizens United is the beginning of a major change in American politics, not the end. What you see at the Supreme Court on this issue is a belief that money is speech. That's the core value. And the pioneer of this idea was really Clarence Thomas. Like so many areas of the law, Clarence Thomas has been sort of the leading edge of conservative thought. Whether it's on the Commerce Clause, whether it's on free speech, whether it's on affirmative action or gun control, Thomas has been - you know, began advocating, you know, positions that were out - you know, considered way out there, and they have become the conventional view at the Supreme Court.
Citizens United is only the beginning of the near-complete deregulation that the Supreme Court is going to order. Corporate contributions now can only go to the so-called superPACs. Soon they'll say, well, you corporations can give directly to campaigns. Limit - if you believe that...
GROSS: Why do you think that?
TOOBIN: Well, because the logic follows. I mean, these superPACs are essentially identical to campaign committees. I mean, they are essentially fraudulent contrivances to keep a phony distance between the actual campaign and the separate entities called superPACs. They are part of campaigns, but not legally part of campaigns.
I anticipate that the court, as it's - if it's currently configured - it continues, will say, well, corporations and individuals can give directly to campaigns. And if you believe - as this majority does - that money is speech, how can you have limits on how much you can give to campaigns? Those are, I think, very much endangered. So I think Citizens United is very much the beginning or the middle of deregulations of campaigns, not the end.