Talking Volumes: Toobin peels back Supreme Court's layers of secrecy

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  • September 27, 2012 - 9:05 AM

Jeffrey Toobin backstage at the Fitzgerald Theater Wednesday night. / Photo by Claude Peck

Some of the highest drama at the Supreme Court in years occurred this summer when the justices issued their ruling about President Obama's hard-won healthcare-reform legislation. And Jeffrey Toobin, legal analyst for The New Yorker and CNN, was in the middle of it.

At a Talking Volumes event in St. Paul on Wednesday night, Toobin described the events surrounding the Obamacare ruling. He has written about it and other conflicts between the Obama and the conservative-majority Court in his new book, "The Oath."


Toobin has been widely criticized for wrongly predicting and reporting that Chief Justice John Roberts and four other conservative justices would overturn the main impetus behind the Affordable Care Act. Toobin has since issued mea culpas in print and on-air for his premature prediction in the case, where Roberts surprised Toobin (and many others) by siding with the liberal justices in a 5-4 vote that upheld the main elements of health care reform.

The media have learned by painful mistakes that "it's better to be late than wrong," Toobin said. "On ACA, we were both early and wrong."

Toobin has since come to believe that Roberts voted as he did to avoid seeming to be an automatic conservative vote on an issue of national import and with a presidential election at full steam. "It pleased Roberts not be seen as a political hack," Toobin said. But, he added, "Roberts has not discovered his inner moderate, believe me."

Toobin predicted that the Roberts court would take up only the less far-reaching of two pending gay-marriage cases in the coming months, a challenge out of Massachusetts about the constitutionality of the Defense of Marriage Act. He said that Roberts' antipathy to affirmative action would also come to the fore in several cases coming before the Supreme Court.

In his talk with Kerri Miller of Minnesota Public Radio, Toobin told stories about current and past justices, including Clarence Thomas ("bizarre"), Ruth Bader Ginsburg (loves opera), Sandra Day O'Connor (struggled courageously when her husband, John, developed Alzheimer's) and Toobin's "favorite," David Souter (doesn't have a computer, doesn't like electric light).

In "The Oath," Toobin gathered information in interviews with the Justices and more than 40 of their law clerks, on the condition that none of it could be quoted directly or attributed.

Toobin didn't hesitate to predict that Obama would win reelection in November, saying "This thing is not even close anymore," and that "the debates will not change a thing." 

Kristin Tillotson of the Star Tribune recently profiled Toobin.

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