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Wed March 6, 2013

Ruth Bader Ginsburg: The Supreme Court's 'Heavyweight'

In his profile of Supreme Court Justice Ruth Bader Ginsburg in this week's issue of The New Yorker, Jeffrey Toobin writes: "Ginsburg has suggested that she would like to serve as long as Louis Brandeis, her judicial hero, who retired at eighty-two." Ginsburg turns 80 this month and is marking her 20th year on the court. She has had cancer — colon and pancreatic — and her tiny, frail-looking stature leads many people to wonder if she'll be retiring soon.

"Looks are deceiving when it comes to Ruth Bader Ginsburg," Toobin tells Fresh Air's Terry Gross. "She looks like a stiff wind would blow her over ... but it turns out she's kind of the monster of the Supreme Court gym. Who knew, right? She is someone who is just small, but she is tough as nails. She's got all her marbles. She works out regularly, and she is not leaving imminently."

Ginsburg is on the liberal wing of the court, which these days is usually often in the minority. Toobin says that while she would like to retire while a Democrat is in the White House, the irony of her current status is that she has never been more powerful at the court. He says that the three other liberal justices — Elena Kagan, Sonia Sotomayor and Stephen Breyer — defer to her, especially when they are in dissent.

"The four liberals are not fragments," says Toobin. "They are together, and that's really Ginsburg's work. ... That is a matter ... of persuasion. She has said, 'We would be more powerful. We would have more of an impact on — potentially — other courts or the future of the courts if we — the four of us — speak together. I think it's testament to Ginsburg's respect that she engenders among her colleagues that even though the other three don't have to defer to her, they do."


Interview Highlights

On Ginsburg's 1992 lecture at the NYU Law School, and how it reveals her approach to litigation

"The great women's rights landmark that Justice Ginsburg did not argue as a lawyer was Roe v. Wade, the abortion rights case. That case was litigated and decided very differently from the way Ginsburg's cases were decided. Roe v. Wade — Justice Blackmun's decision for the court — didn't just declare the Texas law at issue unconstitutional, it said that every law in every state that barred early abortions for women was now unconstitutional, and Ginsburg, in this lecture, said that she thought the court was wrong to do that in Roe v. Wade. Ginsburg is a supporter of abortion rights, but she thought the court went too far, too quickly in ordering every state of the union, and she thought it set off a political backlash that actually wound up hurting the cause of women's rights."

On how the first two female justices on the Supreme Court responded to sexist treatment they experienced

"Justice O'Connor was very aware of sexist treatment that she received, both before and after her appointment to the Supreme Court and she, like Justice Ginsburg, had excellent radar for being patronized by her colleagues — most especially Justice Scalia. So I think there are actually many more parallels between Ginsburg and O'Connor than there are differences, starting with their academic distinction and difficulties getting jobs. Also, I think the affection between them was so real. I remember interviewing Justice Ginsburg once during that period before Justice Sotomayor was appointed, where she was the only woman on the court, and she hated that. She really didn't like being the only woman on the court, and she liked the fact and O'Connor liked the fact that they were different in many ways. You know, here you have O'Connor, this tall, outgoing, rangy Westerner, and Ginsburg, this bookish Brooklynite. And they both like the idea that it shows that women aren't just one way in the world, that women are complicated and different from one another, yet it's important that women also be represented. And both of them are fierce advocates for more women judges and more women in all positions of power."

On retired Justice Sandra Day O'Connor telling Terry Gross she doesn't regret her vote in Bush v. Gore

"To know Justice O'Connor as I am privileged to do is to know that the word 'regret' never passes her lips. She is a forward-looking person. She is a Westerner. She is someone who is always thinking about the future, and it's one of the absolutely great things about her. Did she regret her vote in Bush v. Gore? Did she regret the Bush presidency? You bet she did, and you bet she does. The war in Iraq. The war on terror. John Ashcroft as attorney general. The Terri Schiavo case. All of these things filled Justice O'Connor with revulsion, and you can be sure that her vote in Bush v. Gore weighs on her mind. Now, regret it? Saying she regretted it? Did she regret it? You bet."

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. Justice Ruth Bader Ginsburg marks her 20th anniversary on the Supreme Court this year, and this month she turns 80. My guest Jeffrey Toobin has written a profile of her in the current edition of The New Yorker titled "Heavyweight: How Ruth Bader Ginsburg has moved the Supreme Court."

He writes: Ginsburg has become the senior member of the court's liberal quartet and has united the four justices so that they speak with a single voice, especially when they are in dissent. We're going to talk about Justice Ginsburg's impact on the court and on women's rights. Later, we'll discuss a couple of the big issues currently before the court: gay marriage and Section 5 of the Voting Rights Act.

Jeffrey Toobin is a staff writer at The New Yorker, covering legal affairs. He's also CNN's senior legal analyst. His latest book is called "The Oath: The Obama White House and the Supreme Court." Jeffrey Toobin, welcome back to FRESH AIR.

JEFFREY TOOBIN: Hi, Terry.

GROSS: I want to start with the fact that I'm not alone in always wondering if Ruth Bader Ginsburg is on the verge of retirement. She turns 80 this month. She's had two bouts of cancer, colon cancer and more recently in 2009 pancreatic cancer. She looks very frail. But you say she isn't nearly as frail as she looks.

TOOBIN: You know, the looks are deceiving when it comes to Ruth Bader Ginsburg. She looks like a stiff wind would blow her over. You know, Supreme Court justices don't appear in public that often, and so when people saw her sort of tottering down the stairs at the Capitol for the inauguration in January, she just looks old and tired and frail.

But, you know, it turns out she's kind of the monster of the Supreme Court gym. Who knew, right? She is someone who is just small, but she is tough as nails. She's got all her marbles. She works out regularly, and she is not leaving imminently.

GROSS: Do you think she will leave before Obama's tenure in the White House is up? Do you think she'd want to retire when a Democrat was in the White House?

TOOBIN: Well, the answer to your second question is very much she would like to retire while a Democrat is in the White House. The justices are very aware of who's president when they're leaving, and they choose their departures accordingly. The paradox, the irony of Ginsburg's current status is that she has never been more powerful at the court.

She is really the leader of the four liberals: Stephen Breyer, Sonia Sotomayor and Elena Kagan, as well. Yet she knows that the clock is ticking. And I think at the end of the day she will leave during Obama's presidency but not this year and maybe not next year. Health permitting, which I think health will permit, probably in the third year of Obama's presidency.

GROSS: So you describe her as the leader of the liberal wing of the court, and you write that to a greater extent than Stevens, Ginsburg has united the four justices so that they speak with a single voice, especially when they are in dissent. In what sense?

TOOBIN: Well, you know, Supreme Court justices in any given opinion are allowed to write concurring or dissenting opinions to their hearts' content. There is no rule that says there has to be one dissenting opinion in a case. But what we have seen in the last two years, since Stevens has left, is that the four liberals, especially when they are in dissent, are really speaking with one voice.

That was certainly dramatically illustrated in the health care case, where Ginsburg wrote an opinion saying that the commerce clause did allow the individual mandate of the Affordable Care Act. Of course that law was upheld on another ground, that it was an appropriate use of the taxing power.

In cases about campaign finance, in cases about a separation of church and state, the four liberals are not fragmented. They are together, and that's really Ginsburg's work.

GROSS: And how is it her work? What has she done?

TOOBIN: Well, you know, that is a matter really of persuasion. She has said we would be more powerful, we would have a more of an impact on potentially other courts or the future of the courts if we, the four of us, speak together. And I think it's testament to Ginsburg's respect that she engenders among her colleagues that even though the other three don't have to defer to her, they do, and they are speaking in one voice more than they did when Stevens was the leading liberal.

GROSS: Ruth Bader Ginsburg, before even getting to the Supreme Court, made her reputation litigating cases pertaining to equal rights for women. Would you just run through what some of those important cases were?

TOOBIN: Well, it's important to remember where the law was before Ginsburg started taking these cases in the 1970s. In the 1960s, even the so-called liberal Warren court was happy to approve laws that treated men and women differently. There's a famous case from the early '60s where a Florida law said men were required to serve on juries, but women could turn it down.

And this was a murder case involving a woman who was accused of murdering her husband, and she said, look, it's a violation of equal protection to say that, you know, women, who might be sympathetic to my argument, could get out, whereas men had to be on the juries. And the Supreme Court said no, no, no, women's real function is to be at the home, so it's OK.

And there were a lot of these patronizing laws that treated men and women differently. And Ginsburg really started challenging these laws in the 1970s. One of the first important cases involved an Idaho law that said when someone died, and a man and a woman could both be considered to be the executor of the will, the man should be preferred.

And the assumption was men knew more about financial affairs. And Ginsburg wrote the brief in this case - it's called Reed v. Reed - and the Supreme Court unanimously said this was based on outmoded notions of relations between the sexes, and it could not stand under the 14th Amendment to the Constitution.

And with that she went after case after case that indicated usually sort of patronizing laws about whether women were expected to work, whether women could expect to be on juries, and she won five of the six cases she argued and established precedents that stand even today.

GROSS: You describe her approach in litigating women's rights as incremental, case by case as opposed to one sweeping case that would say women have to be treated equally in everything, and therefore a lot of laws will just have to be rewritten.

TOOBIN: That's right. And that's very significant, particularly when you start looking at her judicial career because Ginsburg is a methodical person, and she understood that the best way to win at the Supreme Court, or so she thought, and history proved her right, at least in her case, that you don't ask for too much.

So she would talk about each individual law on the merits, whether it was a law regarding pensions. Women were expected to be dependent, so they automatically got a pension when their husbands died, but men were not expected to be dependent, so when their wives died, they had to prove that they were dependent.

So she had a man client in that case, and she won that case, again unanimously. And she sort of took on the patronizing assumptions of each individual case, but she didn't ask the court to rule that all differences between the sexes, in terms of how they were treated under the law, were unconstitutional.

GROSS: And she thought that she'd make more progress this way? I mean, was that a practical decision or just a belief that every law should be taken on its own terms?

TOOBIN: That's an interesting question, and I'm not sure I know the ultimate answer to that. But I think she clearly thought as a litigation strategy that when you were dealing with a court of nine men, which of course it was in those days, it's better to ask for narrow relief, ask for specific victories in specific cases rather than ask them to rewrite the law of sex and gender in the United States.

And so, you know, she did think ultimately that all these laws should disappear, and most of them have, but she didn't think the Supreme Court was the right way to rework all of American law in one fell swoop.

GROSS: If you're just joining us, my guest is Jeffrey Toobin. He's the - he's a staff writer at The New Yorker, where he covers legal affairs, and his article in the current edition is a profile of Ruth Bader Ginsburg. It's called "Heavyweight," which is kind of ironic considering she weighs probably under 100 pounds.

(LAUGHTER)

TOOBIN: That's the point.

GROSS: That's the point, OK. So, you know, we've been talking about her incremental approach as a litigator to women's rights. She gave a lecture in 1992 that you write about. It's called "The Madison Lecture," which was delivered at the NYU Law School. And talk about this lecture and what it revealed about her legal philosophy.

TOOBIN: Well, the great women's rights landmark that Justice Ginsburg did not argue as a lawyer was Roe v. Wade rights case. And that case was litigated and decided very differently from the way Ginsburg's cases were decided. Roe v. Wade, Justice Blackmun's opinion for the court didn't just declare the Texas law at issue unconstitutional. It said that every law in every state that barred early abortions for women was now unconstitutional.

And Ginsburg in this lecture said that she thought the court was wrong to do that in Roe v. Wade. Ginsburg is a supporter of abortion rights, but she thought the court went too far too quickly in ordering every state in the union, and she thought it set off a political backlash that actually wound up hurting the cause of women's rights.

I think that's a very debatable proposition, but I think it is indicative of her careful step-by-step approach that's very different from some liberals, like say, Thurgood Marshall or William Brennan or Harry Blackmun, who wrote Roe v. Wade.

GROSS: And she wanted the legalization of abortion to be - she would have preferred that the legalization of abortion be a dialogue with legislators. What did she mean?

TOOBIN: What she meant is that she thinks that political change in the United States by and large comes from the political branches of government, that real change, substantive change that's enduring, needs to come through the democratic branches, through the executive, through the legislatures, through the states, and that courts imposing social change is risky and should generally be avoided.

So she has written that in the '70s, many states were liberalizing their abortion laws, and it would have been better for the court to, yes, strike down the Texas law but also let the other states progress politically towards the goal of legal abortion rights rather than just having the court impose it.

Now, I think historically that's a questionable assumption. It is far from clear that all the states would eventually have legalized abortion, as Ginsburg seems to assume. But I think again, it's indicative of her cautious approach to how the courts should behave, you know, when it comes to controversial social issues.

GROSS: If you're just joining us, my guest is Jeffrey Toobin, and he profiles Justice Ruth Bader Ginsburg in the current edition of The New Yorker. He's a staff writer there and writes about legal issues. He's also a senior legal analyst for CNN. Let's take a short break here, and then we'll talk more about Ruth Bader Ginsburg, and we'll also talk about other issues facing the Supreme Court. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. If you're just joining us, my guest is Jeffrey Toobin, and we're talking about his profile of Justice Ruth Bader Ginsburg in the current edition of The New Yorker, where he's a staff writer and writes about legal affairs. He's also senior legal analyst for CNN.

So in talking about Justice Ginsburg's idea that the judiciary should be in dialogue with the legislature, you know, with lawmakers, she kind of demonstrated that when she wrote the dissenting opinion in the Lilly Ledbetter case that - so why don't you just briefly describe her dissent and the argument that she made from the bench kind of directly addressing legislators.

TOOBIN: It was - it's really an amazing story about the power of a dissent in the Supreme Court because the - she lost the Lilly Ledbetter case. Lilly Ledbetter was a woman who worked at a Goodyear factory in Alabama, and she learned very much towards the end of her career that she had been dramatically underpaid compared to the men, the comparable men at the factory.

And she sued for violation of Title VII, which prohibits sex discrimination. And she won $3 million at her trial, but the Supreme Court five to four overturned the judgment, saying that because she filed late in her career, she had violated the statute of limitations. She brought her case too late.

Now Ginsburg in her dissenting opinion said that's ridiculous because she didn't know for years that she had been discriminated against, so how could she have sued? And so - and she said the Supreme Court was interpreting Title VII all wrong.

But what she did in her dissenting opinion was instead of just addressing the legal niceties, she really called on Congress and said, look, Congress, you can change the law. The Supreme Court is merely interpreting your law, so you should rewrite it and make it clear. And as it happened, that opinion came out in 2007 just as the Democrats had retaken control of the House and Senate and just as the presidential campaign was getting underway.

And Barack Obama and Hillary Clinton took this case, the Lilly Ledbetter case - which had actually been very obscure, not many people were following it - but made it a cause all because of Ginsburg's dissent.

And to go forward to 2009, when Obama was inaugurated, the first law that he signed as president is now known as the Lilly Ledbetter Fair Pay Act, and a signed copy of that law stands in Ginsburg's chambers with thanks from now President Obama. And it's just a remarkable success story from a case that Ginsburg lost.

GROSS: You know, in reading your profile of Ruth Bader Ginsburg, I was thinking about the interview I just did with Justice Sandra Day O'Connor. And Justice Ginsburg told you that she thinks that if Justice O'Connor had stayed on the court instead of retiring in 2006 that some of the five-to-four decisions that came out on the side of the conservative part of the court would have landed on - in favor of the liberal side of the court. I thought that was very interesting.

Did she offer any specific examples of cases that she thought would have swung the other way?

TOOBIN: Well, there's one clearly very famous one, which is Citizens United, which I think we all know is an enormously important opinion. And I think Justice Ginsburg's recognition of the replacement of Justice O'Connor by Justice Alito is really the dramatic change in the court for the last probably 20 years.

Justice Alito has turned out to be so much more conservative than Justice O'Connor, who was, I think it's safe to say, very much moving left as her career ended. I think that Citizens United would have gone the other way, and that alone is a pretty big deal.

GROSS: So having, you know, read your article, your profile of Ruth Bader Ginsburg on the same day that I interviewed Justice Sandra Day O'Connor, I found them such interesting contrasts. You know, Ginsburg devotes so much of her judicial career litigating cases, asking for equal rights, for equality for women. And both Ginsburg and O'Connor faced a lot of discrimination when they were starting off in their legal career.

They both found it very difficult to get jobs. And Sandra Day O'Connor talked about how when she got out of law school, 40 law firms or more than 40 law firms turned her down for an interview, and several of them said we don't hire women, something that wouldn't even be legal to say today.

(LAUGHTER)

GROSS: But when I asked her if those - but when I asked Justice O'Connor if those kinds of, you know, discriminatory experiences affected her thinking as, you know, as the first woman justice, Supreme Court justice, she said, well, I can't really answer that, that's the kind of question you'll have to try to answer.

And she also said she didn't really have to deal with a lot of issues directly related to that, whereas it seems like with Ginsburg, the discrimination that she faced and her kind of, you know, life's work are so connected.

TOOBIN: Totally, and I mean, don't kid yourself. Justice O'Connor was very aware of sexist treatment that she received both before and after her appointment to the Supreme Court. And, you know, she, like Justice Ginsburg, had excellent radar for being patronized by her colleagues and most especially Justice Scalia.

So I think there is a remarkable - there are actually many more parallels between Ginsburg and O'Connor than there are differences, starting with their academic distinction and difficulties getting jobs. Also, I think the affection between them was so real.

I remember interviewing Justice Ginsburg once during that period before Justice Sotomayor was appointed, where she was the only woman on the court, and she hated that. I mean, she really didn't like being the only woman on the court, and she liked the fact - and O'Connor liked the fact that they were different in many ways.

You know, here you have O'Connor, this tall, outgoing, rangy Westerner and Ginsburg this bookish Brooklynite, and they both liked the idea that it showed that women aren't just one way in the world, that women are complicated and different from one another, yet it's important that women also be represented. And all - both of them are fierce advocates for more women judges and more women in all positions of power.

GROSS: Jeffrey Toobin will be back in the second half of the show. His profile of Justice Ruth Bader Ginsburg is published in the current edition of The New Yorker. Toobin is a staff writer at the magazine. His latest book is called "The Oath: The Obama White House and the Supreme Court." I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. I'm Terry Gross back with Jeffrey Toobin. He's written a profile of Supreme Court Justice Ruth Bader Ginsburg that's published in the current edition of The New Yorker. Toobin is a staff writer for the magazine covering legal affairs. He's also CNN's senior legal analyst. His profile is titled "Heavyweight: How Ruth Bader Ginsburg Has Moved the Supreme Court." But the profile has something surprisingly personal that she shared with him.

I was nearly in tears at one point, which I didn't expect to be, reading a profile of Ruth Bader Ginsburg. But you reprint a letter that she gave you that her husband wrote after he was diagnosed with cancer 10 days before he died. I want you to describe the back story to this note and then I'm going to ask you to read it for us.

TOOBIN: Well, my piece in The New Yorker - somewhat to my surprise - turned out to be in part judicial biography and in part love story. This was one of the great marriages I have ever witnessed in person, or certainly, you know, had the opportunity to report about, in part because Marty Ginsburg and Ruth Ginsburg could not have been more different in terms of their personality. Ruth is shy, retiring, bookish, sort of tries to fade into the woodwork at public occasions. Marty Ginsburg was loud, funny, outgoing, irreverent, a great chef, which he was very proud of, and they complemented each other in a 54-year marriage that to all appearances - and as far as I can tell in reality - was really just a phenomenal love story.

GROSS: So I want you to read the note...

TOOBIN: Oh, the letter. OK.

GROSS: ...that her husband wrote for her..

TOOBIN: Well, Marty, despite his ebullience, was frequently sick. He had testicular cancer even when they were in law school, so, you know, his health haunted their whole long marriage. And in 2009, 2010, he had a tumor on his spine and ultimately he went for treatment and it didn't, you know, it didn't take it and he - the doctors told Ruth and Marty that there was nothing more that could be done. When Ruth was about to take Marty home from the hospital - Johns Hopkins Hospital - she found a note in his drawer of his hospital room, and this is what the note said.

My dearest Ruth, you are the only person I have loved in my life - setting aside a bit, parents and kids and their kids - and I have admired and loved you almost since the day we first met at Cornell some 56 years ago. What a treat it has been to watch your progress to the very top of the legal world. Two exclamation points. I will be in Johns Hopkins Medical Center until Friday, June 25, I believe. And between then and now I shall think hard on my remaining health and life, and whether on balance the time has come for me to tough it out or to take leave of life because the loss of quality now simply overwhelms. I hope you will support where I come out but I understand you may not. I will not love you a jot less. Marty.

He died, as you say, the next week.

GROSS: That's a really beautiful letter. And it just made me think about like - and I don't know the answers to any of this, you know, like why did he leave the letter and not tell her properly? In my, you know, in my mind I'm thinking he didn't want to have a conversation about it. He just wanted to let her know in as clear a way as possible. But he's also - and this is amazing for the husband of a Supreme Court justice, he seems to be proposing the possibility of him taking his life.

TOOBIN: Absolutely. And you know, even though it is written with so much love, there is a lawyer's precision to it as well, where he is proposing various possibilities, not deciding the issue. And you know, Marty as well as being a wonderful husband, was perhaps the top tax lawyer in the country. And there is in addition to the great love of a husband, there is a tax lawyer's meticulousness to it as well. And it is such a rich and full picture in one short letter of a relationship. I have to say the thing that strikes me about the letter also is two little words: you are the only person I have loved in my life - setting aside a bit, parents and kids and, you know, in those two little words, a bit, there is a lifetime of complexity you can see.

GROSS: But you know, the letter also seems to me to be saying if he's proposing the possibility of terminating his life, he's also saying it's my decision, it's not yours.

TOOBIN: And, you know, it just shows also that...

GROSS: And it's my responsibility, it's not yours. Like the responsibility is not on your shoulders.

TOOBIN: That's right. And again, Supreme Court justices deal with issues of life and death all the time, including issues like when ill patients can end their own lives or be assisted to end their own lives. And you know, this just shows how those sorts of issues are far from abstract legal controversies for most of us. I mean all of us have by the time we get to a certain age in life have dealt with these issues of people who are very sick and don't know whether they want to go on. And it is just - it's so painful and it's so real and this just shows how these play out in the messy real world.

GROSS: My guest is Jeffrey Toobin, and he writes about legal affairs for The New Yorker where he's a staff writer. And in the current edition he profiles Justice Ruth Bader Ginsburg.

Let's take a break here, then we'll talk more about issues currently facing the Supreme Court. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR, and if you're just joining us, my guest is Jeffrey Toobin. He's a staff writer at The New Yorker, where he writes about legal affairs and he's senior legal analyst for CNN. His article in the current New Yorker is a profile of Justice Ruth Bader Ginsburg.

So we were talking about Justice Ginsburg's incremental approach to litigating women's rights when she was a lawyer. And it seems that the Obama administration is in its way taking an incremental approach to trying to legalize gay marriage. Would you talk about the Obama administration's approach in the two cases now facing the Supreme Court, Prop 8 in California, which makes gay marriage illegal, and DOMA, which is a federal law that says the federal government will not recognize gay marriage even in states where it's legal.

TOOBIN: Well, you know, the Obama administration has changed so dramatically over the course of its, you know, four and a half years in office about same-sex marriage, led by the president, that I don't actually think the Obama administration is all that incremental. They are basically advocating a full-scale change in all 50 states about same-sex marriage. The solicitor general, Donald Verrilli, has filed a brief saying that the Defense of Marriage Act is unconstitutional, that that law, which forbids the federal government from recognizing same-sex marriages, even in states where it's legal, he's saying that's just purely a form of discrimination that the Constitution cannot justify. But I think even more remarkable is the brief that the government filed in the Proposition 8 case, where it said, it only addressed California's law, Proposition 8. But it made very clear that the United States government - at least this solicitor general, this United States government - believes that gay people cannot be denied the right to get married. And even though they only address the California law, it's inconceivable to me that it doesn't apply in all 50 states. So I think the Obama administration is likely to be ahead of even the liberals on the Supreme Court.

GROSS: Do you think that both of these cases basically depend on how Justice Kennedy, as the swing vote, goes?

TOOBIN: Probably. I do. I am a little bit more confident of the outcome in the Defense of Marriage Act case than I am in the Proposition 8 case. Those of you - people who may remember my predictions in the health care case should take anything I say about the future of the Supreme Court with a grain of salt. But I - the Defense of Marriage Act is so - such a pure form of discrimination without any apparent justification, other than just sort of group animus, group dislike of gay people, that I think Justice Kennedy, who is the author of Lawrence v. Texas, the author of the Roemer decisions, the two most important gay rights decisions of the Supreme Court, I think he will join the four liberals in striking it down. And I don't think it's out of the question even that Chief Justice Roberts might join him. But the Proposition 8 case is much more of a Rubik's cube of possibilities, where they could just limit the decision to California. There are various procedural issues in the case that could allow them to sort of duck the hard issues. I'm a lot less confident even in my dismal record of predictions in the Proposition 8 case.

GROSS: The longer you've gotten a chance to observe Justice Kennedy as the so-called swing vote, do you feel like you've gotten a better idea of where he stands on different issues? Is he easier to predict?

TOOBIN: I do think, you know, we make a mistake sometimes, I think, in calling him the swing vote, with the implication that he's a moderate. Justice O'Connor was a moderate. Justice Kennedy is actually an extremist in many of his views. He just has varied enthusiasms. He is mostly as conservative as a Justice Scalia - that's somewhat of an overstatement, but nearly as conservative as Justice Scalia on many, many issues. There are a handful of issues, like the death penalty, like gay rights, where he has been pretty liberal. But - so it's only in those areas where he is likely to be a swing vote.

GROSS: I want to ask you your impression of the very controversial comments that Justice Scalia made last week pertaining to Section 5 of the Voting Rights Act. Just as background, Jeffrey, do you want to explain what Section 5 is?

TOOBIN: Section 5 of the Voting Rights Act says that certain parts of the country - basically nine states in the South with a handful of other small counties - have to get pre-clearance. They have to get permission from the Justice Department to make any changes in their electoral system, from the location of voting places to redistricting legislative lines, because they have this history of discrimination.

GROSS: Section 5 passed in Congress with a vote of 98 to 0 in the Senate and 390 to 33 in the South. Justice Scalia...

TOOBIN: And was signed into law by that notorious liberal, George W. Bush.

GROSS: OK. And Justice Scalia said that this congressional vote, this overwhelming vote to renew Section 5, that it's very likely attributable to a phenomenon that is called perpetuation of racial entitlement. Whenever a society adopts racial entitlements, it's very difficult to get out of them through the normal political process. And then Justice Scalia goes on to say it's not a concern - this is not the kind of question you can leave to Congress. So what were your impressions? Were you surprised that he said any of this?

TOOBIN: You know, something sad is going on with Justice Scalia right now. The - if you look at all nine justices on the Court in terms of their historical importance, I think Justice Scalia probably ranks number one because he has really revolutionized constitutional law through his theory of originalism, that the Constitution should be interpreted as the framers intended. And, you know, whether you agree or disagree with that, it's been a major intellectual contribution to this country, and he has been a formidable conservative intellectual. But in the past couple of years he's turning into a right wing crank who sounds more like a talk radio host than a Supreme Court justice. It wasn't embarrassingly true in the Arizona immigration case last year. I think these sort of really silly intemperate political judgments from the bench in the Voting Rights Act are also indicative of it, and I think he's really starting to embarrass himself and the Court with really ugly sentiments that don't do justice to the rest of his career.

GROSS: He considers himself opposed to judicial activism, but he's saying you can't leave this issue to Congress. Congress voted for this overwhelmingly but we can't leave it to them, we have to undo it. Is that judicial activism?

TOOBIN: One of the signatures of the conservative moment in the Supreme Court right now has been this enormous embrace of judicial activism, you know, telling Congress that it can't pass the Voting Rights Act, telling Congress it can't pass the McCain-Feingold law in Citizens United, all - telling the State of Texas that it can't adopt an affirmative action plan. All of these are the conservatives on the court second-guessing democratically elected branches of government, which is precisely what they always accuse the liberals of doing.

Which the liberals sometimes do do, but at least the liberals have sort of the intellectual honesty to say, look, we just don't think these laws pass constitutional muster. But conservatives supposedly believe in judicial restraint as a bedrock principle of what they stand for, and we see them reject it again and again.

GROSS: When you say that Scalia's comments - Justice Scalia's comments are an embarrassment to himself and to the court, this is just speculation - do you think any justices in the court would say anything to him about it?

TOOBIN: The only person who would would be Chief Justice Roberts, and much as I value my own reporting skills, I'll never know if he did, because this is sort of the private of the most private kinds of relationships among the justices, just at the same way - you remember when Clarence Thomas's wife Virginia was taking such an outspoken role in opposing the Obama administration? And her public role stopped on a dime.

Did Chief Justice Roberts say something to Justice Thomas about it? I don't know, but it certainly seems possible. Will Chief Justice Roberts speak to Justice Scalia about this? I don't know, but I think it's possible. Chief Justice Roberts is exquisitely aware of the public reputation of the Supreme Court and he is very jealous, appropriately so, of the court's public reputation, and this is precisely the kind of thing he does not want.

And I would not be at all surprised to learn decades from now that the Chief Justice had a discreet word with Justice Scalia.

GROSS: One of the things that surprised me reading your profile of Justice Ruth Bader Ginsberg is that she and Justice Scalia are friends and that, in fact, when her husband was alive, they spent several New Year's Eves with the Scalias.

TOOBIN: You know, Justice Scalia and Justice Ginsberg have been colleagues for decades. They were on the D.C. circuit together. They were on the Supreme Court together. I mean this is just a long, long relationship. William Rehnquist established a really important kind of social rules at the court, where people are personally respectful of each other. They are not - they don't diss each other in public. They don't diss each other in private.

They disagree on paper and their opinions, but they really leave it there. And Justice Scalia is an outgoing, fun, amusing person, and Justice Ginsberg likes to laugh, and the two couples really did spend some times together and they have been friends for a long time.

GROSS: So finally, since I did just talk to Justice Sandra Day O'Connor yesterday, I want to ask you about something that I asked her, which related to something that you had said. And in one of our previous interviews when you and I were talking about Bush v. Gore, you had said that Justice O'Connor, who was the swing vote in that decision and sided with the conservatives, you said that she later regretted the decision.

And when I mentioned that to her, she said, I don't know why he said that. I have not said that myself and it's not anything I want to weigh in on. There's no point at this point in me saying I regret some decision I made. I'm not going to do that. I'm not going to do that. And I said, so you say you never really said that? And she says, I hope I didn't. So any comment?

TOOBIN: To know Justice O'Connor as I am privileged to do is to know that the word regret never passes her lips. She is a forward-looking person. She's a Westerner. She is someone who is always thinking about the future, and you know, it's one of the absolutely great things about her. Did she regret her vote in Bush v. Gore? Did she regret the Bush presidency? You bet she did, and you bet she does.

The war in Iraq. The war on terror. John Ashcroft as attorney general. The Terri Schiavo case. All of these things filled Justice O'Connor with revulsion and you can be sure that her vote in Bush v. Gore weighs on her mind. Now, regret it? Saying she regret it? No. Did she regret it? You bet.

GROSS: So says Jeffrey Toobin. I want to thank you so much for talking with us.

TOOBIN: It's my pleasure as always, Terry.

GROSS: Jeffrey Toobin covers legal affairs for The New Yorker. In the current edition, he has a profile of Justice Ruth Bader Ginsberg. Toobin's latest book is called "The Oath: The Obama White House and the Supreme Court." Transcript provided by NPR, Copyright NPR.

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