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- [00:00]
Matt Wilstein
AI.
- [00:03]
Jeffrey Toobin
Had the time of my life.
- [00:07]
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A I never felt this way before.
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Jeffrey Toobin
From building timelines to assigning the right people, and even spotting risks across dozens.
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Joanna Coles
Of projects, Monday Sidekick knows your business.
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Jeffrey Toobin
Thinks ahead, and takes action. One click on the star and consider it done. And I owe it all to you. Try Monday Sidekick AI you'll love to.
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Joanna Coles
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- [01:44]
Matt Wilstein
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- [02:24]
Jeffrey Toobin
The Supreme Court in our country doesn't have any individual enforcement powers. They don't have an army. They don't have a police force. I think Donald Trump is not going to directly defy the court. What he would do is he would say, I understand the Supreme Court has said these tariffs are unconstitutional, but I'm going to make some changes and these new tariffs will be different enough and then force litigation on those sets of tariffs. Foreign.
- [02:55]
Joanna Coles
I'm Joanna Coles. This is the Daily Beast podcast. And what is going on out there? We've got U.S. attorneys resigning, which never happens. We've got Pam Bondi being yelled at by the president because she's not moving fast enough to violate all the norms of the doj. And of course, we've got the Supreme Court making elemental decisions, birthright citizenship tariffs over the next few months. Well, who better to unpack this with than Supreme Court scholar Jeffrey Toobin. He's written not one, but two books about the Supreme Court. He's a contributing writer for the New York Times. And of course, you probably know him as a contributor to cnn. Jeffrey. So, Jeffrey, how serious is it, all these resignations in Minneapolis?
- [03:47]
Jeffrey Toobin
Well, I think you have to recognize the history here of how unusual it is to have federal prosecutors resign at all at any time ever. I mean, it is not that it's never happened before, but before this Trump presidency and even the last Trump presidency, you never saw this kind of protest. Remember, there was a major group of resignations in the New York U.S. attorney's office after the Eric Adams deal where the, where charges were dropped, charges are dropped against the now former New York City mayor.
- [04:25]
Joanna Coles
Right.
- [04:26]
Jeffrey Toobin
That was a set of resignations. And now you have a group of prosecutors in Minneapolis resigning, apparently because they think the Department of Justice is investigating the, the victims of this shooting of Ms. Good and, you know, and her partner wife. It's incredibly unusual. And I think it's indicative of just how politicized the Justice Department is under Pam Bondi and how they're facing this unprecedented level of resistance from inside the Department of Justice itself.
- [05:09]
Joanna Coles
So I'm dying to come onto Pam Bondi and the whole politicization of the DOJ in a second before we do that. So what happens, I was thinking this morning, well, does this mean other prosecutors step up who are willing to go after Goode's family, or they are willing to investigate her family?
- [05:27]
Jeffrey Toobin
I mean, one of two things happens, right? Either people come to take their place and just they find willing participants in this investigation, or they say, you know, maybe we think better of it and don't do it. Usually the rule isi mean, it has been under President Trump, someone else comes in. I mean, what happened in New York was Emil Bovey A senior department official who was one of Trump's defense lawyers in the criminal case against him in Manhattan. He essentially took over the case from Washington and cut the deal with Eric Adams. In return for that, he was given a lifetime federal judgeship.
- [06:19]
Joanna Coles
Right.
- [06:19]
Jeffrey Toobin
So, you know, there are incentives that can be offered to do the president and the Attorney General's bidding. But it is also possible that the Justice Department leadership thinks better of the subject of the protest and backs off. I don't know what's happened in Minneapolis because the people just quit yesterday.
- [06:41]
Joanna Coles
Is there an argument that they shouldn't have quit and that they should have either slow walked the investigation until Donald Trump's, you know, famously short attention span has moved on, or, I mean, does this actually make it worse in a way that if you resign, someone else steps up who is prepared to do it?
- [06:58]
Jeffrey Toobin
That's always the argument for any resignation in protest that it's better to have someone of conscience on the inside rather than letting the bad guys, as it were, take over. I think all you can do as a federal government employee is vote with your feet, and that's what these people have done. But it certainly makes a big statement to resign in protest because as I said in the beginning, this is just not something that happens very often. I take this issue pretty personally because back in the day, I was an assistant U.S. attorney, not in Minneapolis, not in Manhattan, but in Brooklyn. And when I was an assistant U.S. attorney in the 1990s, George Herbert Walker Bush was president. But no one even really paid any attention to that because these jobs were seen as almost entirely apolitical, that these are. I was a career employee. These are all career employees. The jobs of federal prosecutors historically have been pretty insulated from politics. And that's what makes what's going on now so extraordinary, because it's such a shift and there's been so much pressure from Washington to do the President's bidding through the Justice Department. And it's why you see these resignations.
- [08:21]
Joanna Coles
So you've got Pam Bondi, who is a former personal lawyer for Donald Trump. You've got Todd Blanche, her number two. The two of them are running the doj. How is DOJ faring under Donald Trump's second administration? And what are you hearing from people inside the DOJ about how it's going?
- [08:41]
Jeffrey Toobin
Well, it's a complete transformation. You know, I don't think I'm naive to think that the Justice Department could ever be apolitical. Law enforcement always has a political dimension. However, going back to the presidency of Gerald Ford, when he took over after Watergate. There has been this real tradition in the Justice Department of separation from the political agenda of the President and doing just law enforcement. Now, there have been exceptions to that, and that's not a perfect rule, but it has been. By and large, what's gone on. This is a complete transformation. And what you've seen is, is tremendous numbers of resignations in the Justice Department, especially in Washington, in the Civil Rights Division, which now exists to support the rights of white people. I mean, that's what the Justice Department Civil Rights Division does, is to defend against what they think of as reverse discrimination and to end any sort of programs designed to help, to help people of color. You've had a huge exodus from the, from the. From the Civil Rights Division. You've had a very great limitation on white collar crime prosecutions, the Foreign Corrupt Practices act, which, you know, limits American companies paying bribes abroad.
- [10:14]
Joanna Coles
But that seems to dis.
- [10:16]
Jeffrey Toobin
We're no longer prosecuting that anymore. Another exodus. And most important, you see in the famous email that was essentially leaked, I think, by mistake, from President Trump to Attorney General Bondi, where she said, why aren't you prosecuting my political enemies? And you saw the prosecution of James Comey, the former FBI director and Attorney General Tish James in New York. Now, fortunately for them, these cases seem to have been brought by complete incompetence. And the.
- [10:56]
Joanna Coles
So this is Lindsay Halligan.
- [10:57]
Jeffrey Toobin
Who, Lindsey Hallig.
- [10:59]
Joanna Coles
I'm obsessed by Lindsey Halligan. She has great hair, and I have no idea what she's doing.
- [11:03]
Jeffrey Toobin
Yeah. And neither do the judges who are allegedly, you know, who she's supposedly practicing before. Like, they keep asking her, like, why are you here? You have no authority to be here.
- [11:14]
Joanna Coles
Right.
- [11:15]
Jeffrey Toobin
But all of this is part of this incredible politicization of the Justice Department. And just today, I saw that the Justice Department, the FBI, executed a search warrant at the home of a Washington Post reporter who was investigating some wrong, you know, various kinds of wrongdoing. The idea that you would search a reporter's home is so such a departure from the traditions of the Justice Department. I mean, this story is just unfolding now, but it's another example of how this Justice Department is breaking norms that have been honored for decades.
- [11:59]
Joanna Coles
So how, if there were a change in administration in four years time, three years time, at this point, and the President was Democrat, how long does it take to rebuild?
- [12:15]
Jeffrey Toobin
You know, this is a question that is being asked a lot. And I think anyone who tells you with certainty that they know how long or how.
- [12:26]
Joanna Coles
Because it requires sort of relying on people to come back in, rebuild it, assuming there'll be stability.
- [12:32]
Jeffrey Toobin
Assuming there will be stability. And also, I think one of the important things in the conversations I'm hearing about what will be the world like after Trump is you don't necessarily want to rebuild things exactly the way they were in the past. I mean, there's no guarantee that that was some sort of perfection, that how do we make a Justice Department, an Environmental Protection Administration? I mean, all of the parts of the government that. That Trump has completely gutted, how do you bring them back and do it better? The one thing you know for sure is you can't do it overnight. It will be a complicated process and not an easy process. But there are certainly a lot of people thinking about this issue of, you know, a project 2029, as it were. But it's going to take a long time. And by the way, there's no guarantee that a Democrat is even going to win in 2028, which means you could have, you know, President J.D. extending what we're seeing now.
- [13:37]
Joanna Coles
Right. And what are you hearing about how safe Pam Bondi is? The Wall Street Journal wrote a piece this week saying that she was under pressure, that Donald Trump was furious, she wasn't moving fast enough. They're clearly leaking against her. So do you think she stays the course?
- [13:57]
Jeffrey Toobin
It's worth noting that the president's complaint against her not Is that she's violating the norms, is that she's not violating them enough, is that she hasn't brought enough cases against the political enemies. I mean, remember, too, this is the week that we learned that there was a criminal investigation of Jerome Powell, the head of the Federal Reserve, another political enemy of the president, under criminal investigation, who he appointed. And what a transparently bogus investigation involving, you know, congressional testimony about the physical structure and the renovations of the building where the Fed is. It's such a transparent attempt, as Powell himself said, to intimidate him. So the idea that, you know, Pam Bondi being forced out, it could be worse, the replacement. So I really have no idea whether she's on thin ice or not. But it's certainly not Donald Trump's complaint that she is violating the norms.
- [15:11]
Joanna Coles
Right? No, he's thrilled she's violating the norms. Right. He wants more norms violated. So who stands up for the Justice Department at a moment like this?
- [15:23]
Jeffrey Toobin
Well, you have, you know, members of Congress who are speaking out, but you're talking about a Democratic minority that has no power at the moment. Can't call here hearings in either the Senate or the House. And you have a Republican majority in the Senate and the House that has been, at least so far, almost completely quiescent and completely subservient to Trump. You have a lot of former members of the Justice Department, people who served under both Democratic and Republican presidents, who have spoken out and said, this is not right, what's going on, but they don't have any physical, any actual power to do anything about it. I mean, usually what happens, even in normal Republican administrations, you have members of Congress speaking up and using their power to issue subpoenas, to conduct investigations, to challenge or limit the budget of the Justice Department. But Donald Trump so completely controls the Republican Party now, we haven't seen that. So, you know, just to answer your question of who stands up, no one with any power is standing up.
- [16:35]
Joanna Coles
Right. All right, so let's move on to the Supreme Court, which I know you've written a book about. I mean, you've written lots of books, but specifically about the Supreme Court and the power and the personalities going on there. Six conservative judges, and we're expecting them to come in with a lot of really important decisions. Tariffs, birthright citizenship. The list goes on and on. How is the Supreme Court faring under Donald Trump?
- [17:06]
Jeffrey Toobin
Well, I think the Supreme Court has been so far, and I want to say so far not, you know, the verdict is not fully in, but it's been a very much a handmaiden to President Trump. I remember one of the signatures decisions of this Supreme Court has been the Trump case itself. Trump versus the United States decided in 2024, where they said essentially, Donald Trump and any president is essentially immune from criminal prosecution ever. For anything he does.
- [17:43]
Joanna Coles
For anything he does in the term.
- [17:45]
BILT Ad Voice
Yes.
- [17:46]
Jeffrey Toobin
Right. And even if Harris had won, the presidency, basically made the criminal prosecution of Trump very impossible because of the rules they set up. Most of the cases that the Supreme Court has handled so far in this first year of Trump's second term, they have allowed the president to do what he wanted on issues like immigration, budget. But there are major issues still outstanding. The two you mentioned I think most prominently whether the president unilaterally can impose tariffs and whether he can end birthright citizenship. I think there's a better chance that the Supreme Court stands up to him on those issues than what we've seen before. But we don't know the answer to that yet.
- [18:39]
Joanna Coles
So when they're making a decision, to what extent are they thinking about the political ramifications the decision is going to have? I know they're not supposed to, but how can they not?
- [18:52]
Jeffrey Toobin
They obviously understand that the political stakes of the decisions that they make. They are very savvy individuals. They follow the news, they follow politics, they know exactly what's going on. Now, they also believe, and I think sincerely, that what they are doing is applying the law, applying the Constitution, applying the statutes, and they work within that framework, but they are acutely aware of the political stakes of what they're doing.
- [19:26]
Joanna Coles
Okay, So I thought that what we could do as a fun game, because you know them better than I do, is I could give you each of the nine justices names and you could give me one word to sum them up.
- [19:37]
Jeffrey Toobin
Well, how about a sentence?
- [19:38]
Joanna Coles
A sentence? Sentence is right.
- [19:40]
Jeffrey Toobin
All right. You know, I'm a lawyer. I have hard limiting myself to one word.
- [19:45]
Joanna Coles
To one word. As long as we don't have to.
- [19:46]
Jeffrey Toobin
Pay you for that right now. That's right. Yeah.
- [19:49]
Joanna Coles
All right.
- [19:49]
Jeffrey Toobin
So I'm a cheap date.
- [19:51]
Joanna Coles
All right. John Roberts, who's obviously the Chief Justice.
- [19:56]
Jeffrey Toobin
Chief Justice, Yeah.
- [19:58]
Joanna Coles
Who must have thought, who can't have seen this in his future. He must have been so excited when he got that job.
- [20:04]
Jeffrey Toobin
Well, I mean, I think it's important to remember that the Chief justice is a conservative and a Republican. I think the most important thing to know about Chief Justice Roberts is his experience as a young lawyer in the Reagan administration. That's what he did after he got out of law school and his clerkships. And one of his big causes there were protecting executive power and limiting civil rights, limiting affirmative action, ending the Voting Rights Act. These are causes that are very close to his heart. So Trump, for the United States, the end of affirmative action, the almost end of the Voting Rights act, all conservative causes that Roberts definitely believes in and has happily led on the Supreme Court. He is not a true movement conservative, doesn't care a lot about abortion, doesn't care a lot about gay rights and same sex marriage. So he is not fully on the MAGA team. But don't kid yourself. He was and is a conservative.
- [21:21]
Joanna Coles
Okay. And he was appointed by George W. Bush.
- [21:23]
Jeffrey Toobin
George W. Bush, 2005. Yeah.
- [21:25]
Joanna Coles
But he's a sort of less government, not more government.
- [21:29]
Jeffrey Toobin
Yeah, I think that's safe to say. Although he is someone who believes in a powerful executive. One of the big issues when he was coming up as a lawyer was, is after Watergate, the presidency being weakened vis a vis the courts, vis a vis Congress. So he's someone who's not for small government when it comes to the President. And if you look at his Decisions giving the President a lot of power is something that he has stood for throughout his career.
- [22:05]
Joanna Coles
Okay, what about Clarence Thomas? And you can't say man with a difficult wife.
- [22:11]
Jeffrey Toobin
Yeah, he's not difficult for him. I mean, they seem very happily married. He is now the senior justice in terms of tenure on the Court. He was appointed in 1991. He's now approaching one of the longest tenures in Supreme Court history.
- [22:31]
Joanna Coles
And I wish I could do the math fast enough to figure out how long.
- [22:35]
Jeffrey Toobin
35 years. Okay, 35 years. And he has seen views that he expressed early in his tenure, very much as an outsider on the Court, become the law of the land. I mean, he has been vindicated by the Republican appointees to the Court. So anti abortion, overturning Roe v. Wade, which. Which ultimately happened, giving individuals a constitutional right to own firearms under the Second Amendment, a great cause of his. He was the only justice who believed in it in 1991. By 2008, the court embraced a constitutional right to bear arms. Lots of these. More on the social side, lowering the barriers between church and state, something he feels strongly about, making it easier to conduct executions, all of which are Thomas causes that have come to command a majority on the Court.
- [23:45]
Joanna Coles
Okay, and then do we care that his wife told people that they should keep protesting over January 6th and that.
- [23:53]
Jeffrey Toobin
I mean, you know, the ethical issues around Thomas are so extensive. You have to start with, you know, the circumstances of his arrival there, where Anita Hill, a former aide to him, told Congress, you know, how he had sexually harassed her back when she worked for him. Yes, his wife is a big political activist. I actually think that is of less consequence. You know, we live in a world of two career families. I don't think she was a political activist before she married Clarence Thomas. I think she's entitled to her career. I think a much more serious issue is the fact that he's been given all these gifts worth hundreds of thousands of dollars from people, right wing billionaires with business before the Court. I think that's a lot more troubling than Ginni Thomas political activity. But there is no remedy for misconduct by Supreme Court Justices. Accept impeachment by Congress. And that's so difficult and so cumbersome, it's never going to happen.
- [25:02]
Joanna Coles
And they don't have their own code of ethics.
- [25:05]
Jeffrey Toobin
Right. That's another weird fact about the Supreme Court is that lower court, federal judges, appeals court judges, district court judges do have a code of conduct that they are obliged to follow. The Supreme Court has made the argument that constitutionally that cannot apply to them. They say they apply in some general way to some general code of conduct, but the fact is there is nothing binding that's imposed on them.
- [25:32]
Joanna Coles
Right. So he can carry on taking expensive holidays from people who want to curry his favor.
- [25:39]
Jeffrey Toobin
Correct. He apparently is not doing that anymore, but there's nothing stopping him.
- [25:45]
Joanna Coles
Okay. All right. So Samuel Alito, also long serving.
- [25:50]
Jeffrey Toobin
Correct. He is the next most senior Associate justice after Thomas, appointed in 2006 by George W. Bush. He replaced Sandra Day O'. Connor. And I think the replacement of O' Connor by Alito was a real turning point in the court because o' Connor was a true moderate. She was not a liberal by any means. She voted for George Bush in the infamous case of Bush v. Gore. So, I mean, but when it came to abortion rights, when it came to the death penalty, when it came to affirmative action, she was on the liberal side on those issues. Alito was not only conservative when he took office in 2006, he's gotten considerably more conservative over the course of those 20 years for reasons that remain mysterious to me. There is a tremendous anger in Justice Alito. You see it in his off the bench statements. You see it his. He feels perpetually aggrieved for a guy who keeps winning all these cases, who is the author of the Dobbs decision which overturned Roe v. Wade. I mean, things seem to be going pretty well for him. Why he's so angry all the time, I don't get it. But he seems at this point very much to embody a sort of Fox News approach to his work. And he too is winning most of the time.
- [27:21]
Joanna Coles
So if you're Samuel Alito or Clarence Thomas, are you irritated?
- [27:26]
Jeffrey Toobin
I would say that's a far fetched hypothetical if I were Clarence Thomas or Samuel Alito. But go ahead, ask your question.
- [27:34]
Joanna Coles
Are you irritated by John Roberts? John Roberts is younger. I mean, how does it work in terms of, like you would think that perhaps the most senior of the members who's been the most longest serving would be the Chief Justice.
- [27:50]
Jeffrey Toobin
No, that's not how the Supreme Court operates. Very strictly according to seniority rules. But according to those seniority rules, regardless of length of tenure, the Chief justice is always first. And the most important power that the Supreme Court, that the Chief justice has is when he is in the majority, he can assign who writes the opinions.
- [28:14]
Joanna Coles
Okay.
- [28:14]
Jeffrey Toobin
And opinions come out very differently depending on who writes them, even if they're, you know, the Justices are on the same side. So that's. But if Roberts is not in the majority, then it goes in seniority in terms of tenure. So Thomas first, then Alito, then Sotomayor, then Kagan, et cetera. That is a significant power, I think, based on my reporting. Thomas and especially Alito regard Roberts as what a lot of right wing Republicans call a squish. You know, someone who is not fully on board with the Republican agenda, that he's sort of almost there, but not there. And that's a source of frustration to them. But there's no doubt at the Supreme Court that when it comes to seniority, the chief is always first.
- [29:11]
Joanna Coles
Okay, and do the conservatives all get on?
- [29:14]
Jeffrey Toobin
You know, one of the metaphors that's always been useful to me in describing the Supreme Court is that it's like nine separate law firms, that they understand that they are stuck with each other, that these are lifetime appointments, so they serve year after year, decade after decade together. And Chief Justice Rehnquist, who was Robert's predecessor, established a kind of norm of good fences make good neighbors don't harass each other. Let's just do our votes. We're going to disagree some of the time, but it is not an especially collegial place. They sit together for oral arguments. They have their conferences on Friday afternoon where they vote together, but they don't spend a lot of time together. The days of close friendships among the justices have really passed. And I think Rehnquist was pretty wise to say, look, just leave each other alone and let us do our jobs.
- [30:25]
Joanna Coles
Right. So does John Roberts have like an annual Christmas party where he invites people and they all come?
- [30:30]
Jeffrey Toobin
Yes, there are events and they have a certain number of lunches together and they especially under which Sandra o' Connor was someone who really tried to cultivate a relationship among the justices.
- [30:43]
Joanna Coles
Of course she did, because she was the first woman.
- [30:45]
Jeffrey Toobin
Well, she was the first woman and she also had been an elected official. She was a politician, a state senator in Arizona. She believed in, you know, talking and trying, and she would bring in guests to talk to, you know, all nine justices, you know, artists from the Kennedy center, the Trump Kennedy Center. Yeah, Kennedy center then it was the Kennedy center then.
- [31:08]
Joanna Coles
Right.
- [31:10]
Jeffrey Toobin
But since oconnors left, there hasn't been someone who's really tried to do that. And, and, you know, yes, there are certain events that they all go to, but it is not a warm and cuddly workplace.
- [31:26]
Joanna Coles
Okay, all right, so let's go through the remaining justices. What about the. I'm not going to club the women together. That's not fair. So.
- [31:33]
Jeffrey Toobin
Well, but I mean, it's not that you're clubbing the women together. It's the three Democrats. It's the three Democrats. There are four women, but there are three Democrats. I mean, Sotomayor and Kagan were both appointed by President Obama. President Justice Sotomayor, New Yorker from the Bronx, first Hispanic to be on the court, very liberal, very, you know, outspoken person. Elena Kagan, also from New York, but from Manhattan, someone who came out of the law professor world, worked, also worked in the Clinton White House, had been the Solicitor General, more of an institutionalist, but also definitely liberal, aligned with Sotomayor most of the time. But the two of them, one appointed in 2009, the other appointed in 2010, in important cases, have been in the minority almost their whole career. So it's, you know, timing in the Supreme Court is everything. They have not been tremendously influential because they don't have the votes.
- [32:39]
Joanna Coles
And are they destined basically now for the rest of their career in the Supreme Court to be in the minority?
- [32:45]
Jeffrey Toobin
Well, unless something dramatic happens in terms of vacancies, if, you know, Gavin Newsom becomes president in 2029, and for some reason Clarence Thomas and Samuel Alito have to leave the court, probably for health reasons, because they're not going to leave voluntarily while Gavin Newsom or some Democrat is president, and somehow there are two more Democratic justices then there, Sotomayor and Kagan could, you know, command a lot more influence. I think that scenario is extremely unlikely. So in answer to your question, I think yes, they are likely to be destined to be in the minority in big cases for most of their careers.
- [33:29]
Joanna Coles
And Ketanji, Brown, Jackson will be in the same group.
- [33:34]
Jeffrey Toobin
Exactly, exactly.
- [33:35]
Joanna Coles
And what about how's Brett Kavanaugh doing after his. Tricky, Tricky. What's it? Confirmation.
- [33:43]
Jeffrey Toobin
Confirmation, yeah. Tricky is a kind way of describing what went on. You know, Brett Kavanaugh, very conservative justice, someone who comes out of the Republican political world who I think more than say Clarence Thomas or Neil Gorsuch, cares about how the court is perceived. And I think Kavanaugh wants the court to be perceived and wants himself to be perceived as someone who's a law person, not a political person. But don't kid yourself. He's a reliable vote for the conservative positions. He voted to overturn Roe v. Wade after suggesting he wouldn't during his confirmation hearings. So, you know, he's a loyal Republican soldier, but someone who cares more about public perceptions than Thomas or Gorsuch.
- [34:39]
Joanna Coles
Okay, and what about Gorsuch, who's supposed to be a bit more of a maverick, isn't he?
- [34:44]
Jeffrey Toobin
Not really. I mean, in fact, he is more conservative even than Kavanaugh. He's not. So he's kind of a loner. He's a Westerner. He's from Colorado, has a very much a libertarian streak. He has carved out a position for himself as a great defender of the rights of Native Americans of Indians, which has, I think, been a surprise to a lot of people. He did write one opinion saying that gay and trans people could sue for discrimination under federal law. Somewhat of a surprise to have joined the liberals on that. But almost all the time he is with Thomas and Alito on the far right end of the court.
- [35:33]
Joanna Coles
Okay, so I think we've covered all of that.
- [35:35]
Jeffrey Toobin
No, you left out Amy Barrett.
- [35:36]
Joanna Coles
Oh, I left out Amy Comey Barrett, who also said that it was unlikely she would overturn Roe v. Wade.
- [35:42]
Jeffrey Toobin
Correct.
- [35:42]
Joanna Coles
In her confirmation.
- [35:43]
Jeffrey Toobin
And you know, she has not aligned herself fully with the far right of the court, with Thomas, with Alito, with Gorsuch. She's no moderate either, don't get me wrong. But she does. Her vote does seem to be in play in more cases than some of us expected. So, I mean, just if you want to think of the court structurally, you have the three Democratic appointees, Sotomayor, Kagan and Jackson, who are more or less permanently in the minority. You have three who are the far right of the court, which is Thomas, Alito and Kavanaugh and Gorsuch. And then you have Chief Justice Roberts, Amy Barrett and Brett Kavanaugh, who are mostly with the three hardcore conservatives, but not always. It is a very conservative court, but if you are looking for any play in the joints, it's going to come from Roberts, Barrett or Kavanaugh.
- [36:57]
Joanna Coles
Geoffrey, just hold on. We need to take a break. For our sponsors.
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- [40:24]
Joanna Coles
And I am back with the Supreme Court author, Jeffrey Toobin. So if you're the liberal judges, what is the point in being there at this point?
- [40:37]
Jeffrey Toobin
Well, remember, the supreme court decides about 75 cases a year. You know, 10 to 12 are very high profile, but a lot of the others are very important in the legal world. And you know, these justices, and they are not all decided six to three. There are a lot of them that are decided unanimously. And these justices get to write some of those opinions. So, I mean, you know, we talk about the Supreme Court as if all they ever do are these big, high profile cases. There are, in fact, lots of cases, and they are very important even if they're not. And the liberal justices get to write their share of those. It is also, you know, a great tradition in the Supreme Court that to write dissents that sometimes in later years become law. Famously, at the turn of the century, Oliver Wendell Holmes and Louis Brandeis wrote a series of dissents about free speech issues, which once the Warren Court came in in the 1960s, were essentially adopted by the court as the law of the land. So there is always the hope in writing a dissent that future generations see, you see that and think that was right all along. It's also a bummer to be in the dissent all the time. You know, Justice Sotomayor has talked about going back to her chambers and crying sometimes because she's so upset about what the court's doing. So, I mean, I don't want it's certainly better to be a Supreme Court justice in the majority than in the minority. It's still a pretty good job even if you're in the minority.
- [42:19]
Joanna Coles
So Alito and Clarence Thomas have been there a long time. Is there any chance that they would resign?
- [42:25]
Jeffrey Toobin
Yes. Yes. They're both in their 70s, and I think they can be confident that President Trump would appoint a successor who shared their views. And I think as you go into this year, I think June of 2026, there is a realistic possibility that one of the two of them would leave because, you know, there's going to be a Republican majority in the Senate at least until the end of 2026. So that conversation will take place at the end of the day. I think neither Robert, neither Thomas nor Alito will leave. They both have all their marbles. They both are writing opinions on issues they care about. Why should they? Why should they leave? I think that's their own calculation. I think just President Trump Would love to see them leave. He'd love to have a fourth appointment to the court. Who would be younger, who would be much, much younger. And, you know, not many presidents have had four appointments to the Supreme Court. No one since Nixon. Reagan, I think, had only three.
- [43:38]
Joanna Coles
Wow. How Donald Trump is leaving his mark absolutely everywhere. Not only is he rebuilding the White House, he's rebuilding the Supreme Court.
- [43:47]
Jeffrey Toobin
He, you know, three appointments. Those three appointments. And especially the fact that he got to replace Sandra Day o' Connor and Ruth Ginsburg and Anthony Kennedy. And Anthony Kennedy. No, not o', Connor, Kennedy. It was Kennedy, Ginsburg, Ginsburg, and Scalia. So two of those three meant a big change in the makeup of the court.
- [44:15]
Joanna Coles
Right, because they went from being sort of more moderate and in the middle.
- [44:18]
Jeffrey Toobin
To being much more conservative to being much more conservative. You know, Biden had one appointment, but Ketanji Jackson replacing Stephen Breyer didn't really change the makeup of the court much at all. So the fact that it's not just that Trump had three appointments, two of the three changed the balance of the court dramatically.
- [44:41]
Joanna Coles
Okay, so Donald Trump notwithstanding, it seems like the court is more conservative than the majority of the population. Is there a point where the Supreme Court loses. Loses the people, as it were?
- [44:56]
Jeffrey Toobin
You know, I hear that said, but I don't see it. You know, Justice Robert Jackson, who was a Franklin Roosevelt appointee, was the best writer, pro stylist ever to appear, ever to. And one of the things he said, which I really believe about the Supreme Court, he said, we are not final because we are infallible. We are infallible because we are final. They have the last word. To an unusual degree among democracies, compared to Great Britain, compared to India, compared to Canada, the power of the United States Supreme Court to declare laws unconstitutional without any possibility of review is greater than any other democracy. Germany, France, to pick your country. Yes, the Supreme Court is less popular than it used to be, even since, you know, Bush v. Gore was, you know, an assault on the Court's popularity. The Dobbs case, overturning Roe v. Wade, ending affirmative action, limiting voting rights. These are things that are not popular with the rest of the country. And I think the attitude of the Supreme Court, by and large, is, so what? What are you going to do about it? And the answer is, nothing.
- [46:17]
Joanna Coles
Nothing. So the one person who might do something about it turns out to be President Trump. Right, because he loves overturning institutions.
- [46:28]
Jeffrey Toobin
But even Donald Trump, there's not much he can do about the Supreme Court. And I think we're going to see now the tariff decision. He has, you know, to an unusual degree, in typical Trump fashion, has been lobbying the Supreme Court to vote to uphold his powers.
- [46:46]
Joanna Coles
Right.
- [46:49]
Jeffrey Toobin
But if they say no, if they say you can't impose these tariffs, I don't think there's anything he can do about that.
- [46:57]
Joanna Coles
Well, it sounded like from the questioning they had, there might be a moment where they didn't approve the tariffs, but didn't just because of the sheer logistical nightmare of it, grandfather the decision into when he started. So we sort of. That's in the rearview mirror. But going forward, you can't.
- [47:15]
Jeffrey Toobin
That's a definite possibility that that's something the court could do that, you know, if you invalidate, if you say that the president doesn't have the power and never had the power, the people who had to pay the tariffs could go to the government and say, give me my money back. That's a recipe for chaos. I think the court understands that.
- [47:34]
Joanna Coles
Even more chaos, even.
- [47:36]
Jeffrey Toobin
Right. It certainly logistically would be a lot easier to say, you know, just not going forward, no presidential tariffs going forward. But even though in the oral argument, it seemed the court was heading in that direction, I have been burned myself, making too many predictions about what the court will do based on what they say at oral argument. Famously, during the Obama administration, the Obamacare case, where they were asked to overturn the Obamacare law as unconstitutional, it seemed like there were five votes against it from the oral argument. That's what I said when I covered it. And I was definitely wrong when it turns out they upheld the. They upheld Obamacare.
- [48:32]
Joanna Coles
Right. So do you have any insight into the birthright citizenship which is also in front of them?
- [48:41]
Jeffrey Toobin
Yes.
- [48:42]
Joanna Coles
I mean, that seems incredibly complicated.
- [48:44]
Jeffrey Toobin
Actually one of the least complicated cases that you can imagine, because if you read the text of the 14th Amendment, you don't have to, you don't have to be a lawyer to read the text of the 14th Amendment, which says all persons born in the United States born means born right. And the Supreme Court, every time they have considered this issue, including in a famous decision from 1898, they have said that if the 14th amendment says you're a citizen, if you're born in the United States, you're a citizen and you're born in the United States. Now, there is this phrase in the 14th Amendment, born in the United States and subject to the jurisdiction thereof, which opponents of birthright citizenship have used to try to get rid of birthright citizenship altogether. What seems clear is what that phrase meant is children of foreign diplomats who are not subject to the jurisdiction if they're born in the United States, they're not citizens. American Indians who have a sort of separate set of laws that apply to them, they're not necessarily subject to the 14th Amendment. But I just think the birthright citizenship case is an easy case because born means born. And there's also the issue of the chaos that would be created if you suddenly had to start telling hospitals, you know, you have to determine the immigration status of the women giving birth and to say nothing of the people who already gave birth, you know, non citizens who gave birth in the United States. I just don't think the court is up for that kind of chaos. And I think the words of the 14th amendment are just simple enough. Born means born, right?
- [50:44]
Joanna Coles
Although we're living at a time when almost any word or anything can be taken.
- [50:48]
Jeffrey Toobin
And somehow, you know, that's why God invented lawyers, is to tell you that born doesn't mean born, and words don't mean what they seem to mean, sometimes they actually do mean what they say. And I think at least as far as birthright citizenship goes, I think even this Supreme Court is not going to go that way far. But that case hasn't even been argued yet in the Supreme Court, so we haven't heard their questions at oral argument. We just sort of know their track record. We know the legal history of the issue, so we'll know more. That case is not going to be decided until at fall of 2026 at the earliest.
- [51:27]
Joanna Coles
Okay, so. All right, so final question for you, which is sort of law adjacent, which is that in the Epstein files, the Clintons have been subpoenaed. They appear to have ignored the subpoenas as far as we know. And they were due to appear, I think, before the Oversight Committee mid December, then earlier this week, and there seems to have been no progress. What is. I mean, it seems incomprehensible that you could have a former president in contempt, but is that possible?
- [52:02]
Jeffrey Toobin
Sure, it's possible, but I don't think it's particularly meaningful. The Clintons have a very good political argument against these subpoenas. I don't think they have a great legal argument against the subpoenas. You know, Congress has great freedom in who they subpoena. I mean, you know, they get to decide who they want to hear from, and I think that's a good thing, basically. And the Clinton argument is, well, this is not pursuant to any real legislation. This is just a political exercise. You know, what Congress does a lot of Things that are political. I think what is really going on here is that the Clintons are betting that they can tie this issue up legally for several months. And then the Democrats are going to probably retake the House of Representatives in the midterm elections in November. The Oversight Committee at that point will turn over to Democratic control and they'll make the subpoena go away. They'll just, you know, withdraw the subpoena.
- [53:00]
Joanna Coles
Right.
- [53:01]
Jeffrey Toobin
So I think.
- [53:02]
Joanna Coles
But that's another nine, ten months.
- [53:04]
Jeffrey Toobin
Yeah. So.
- [53:06]
Joanna Coles
So they can just drag it.
- [53:07]
Jeffrey Toobin
Oh, yeah. It's. I mean, it is not hard to drag out a legal issue for nine months. That's child's play for lawyers in our system. And so. And in terms of contempt. Yeah. You know, Attorney General Eric Holder was held in contempt. Attorney General Merrick Garland was held in contempt. It's not like they put you in stocks when you're in contempt. It is a, it is a. It is something that the Congress does but has no legal effect until it's upheld by the courts. And that means the Clintons will be able to challenge it in the district court, in the Court of appeals, and maybe even the Supreme Court, all of which will take a very great number of months. And if the Democrats retake the House in November, the subpoena is going to go away anyway.
- [54:01]
Joanna Coles
And we're going to take a quick break for some ads.
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Jeffrey Toobin
We will answer your call as soon as we can.
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- [56:49]
Joanna Coles
And Jeffrey Toobin and I are discussing what the hell is going on with the Supreme Court. Okay. Okay. Well, that's very helpful. All right. So hugely helpful. Understanding the mess that's going on. And I guess what will be interesting is if the Supreme Court make a decision that Donald Trump doesn't like and he decides not to adhere to it.
- [57:14]
Jeffrey Toobin
Well, that' syou know, there is a famous, largely apocryphal story about President Andrew Jackson who had a confrontation with the Supreme Court. And he is said to have said Chief Justice Marshall was chief justice at the time, said Mr. Marshall has made his ruling now let him enforce it. I mean, the Supreme Court in our country doesn't have any individual enforcement powers. They don't have an army, they don't have a police force that can do anything except protect their members. So they rely on the understanding in the other branches of government that the Supreme Court has the last word. I think Donald Trump is not going to directly defy the court, but this administration has figured out ways to get around court rulings in a way that I don't think it's for certain. I don't think it's entirely clear how he would react to a adverse decision, but we'll see.
- [58:23]
Joanna Coles
Yeah. So do you think that could happen with tariffs? If they came back and said, you cannot impose tariffs, and he said, well, I'm going to impose them.
- [58:31]
Jeffrey Toobin
I think what he would do, what he would do is he would say, well, my lawyer, I understand the Supreme Court has said these tariffs are unconstitutional, but I'm going to make some changes. And these tariffs, these new tariffs will be different enough and then force litigation on those sets of tariffs that, you know, there are ways to play with the wording and play with the response so that you don't seem like you are in direct defiance of the courts, even if you really are.
- [59:05]
Joanna Coles
Jeffrey, you can't give him ideas. If he's watching this podcast, he's like, oh my God, I'm just going to.
- [59:10]
Jeffrey Toobin
There are better lawyers than I who thought of all this stuff already.
- [59:13]
Joanna Coles
So I have one more final question for you, which is about the President's ability to fire the heads of supposedly independent government agencies. That's also under the supreme docket this year, right?
- [59:27]
Jeffrey Toobin
Yes.
- [59:27]
Joanna Coles
Do you have any insight into how they will address that?
- [59:30]
Jeffrey Toobin
Trump wins for sure. For sure. This is a done deal. There's a famous case called Humphrey's Executor which said from the 1930s that the president can't fire heads of the independent agency, securities and Exchange Commission, National Labor Relations Board, all the Federal Trade Commission conservatives have had that decision in their sights for years. There is absolutely no doubt that the President will win that case. And this is an example of, of John Roberts believing in presidential power. This is a crusade he's been on that is sometimes called the unitary executive theory, that anything under the executive branch, as these independent agencies are, has to be under the control of the President, so he should be able to fire their leaders for any reason. And I have no doubt that's what they're going to do.
- [60:29]
Joanna Coles
Alright, There must be a positive note in all of this. What is the positive note? Please find us for it. You're the lawyer.
- [60:35]
Jeffrey Toobin
Well, it's a lovely day in New York City. The weather's terrific today. So that's a positive note.
- [60:43]
Joanna Coles
What about lawyers bills again? Are lawyers bills going up? Because there's so much more legal work.
- [60:48]
Jeffrey Toobin
Yeah, there's plenty of legal work. Look, you know, we're gonna. I was talking to a law professor about this yesterday. And I said, well, like, how bad are things? You know, it was sort of a similar question. It's like, well, you know, he said, look, I'm not going to pretend things are anything other than bad, but you know what? We're going to have an election in 2026. We really are going to have an election. And the idea that Donald Trump is somehow going to cancel the election or interfere in a serious way is, I don't think, realistic. And we'll see. We'll see what the people's verdict is on that, and then we'll have an election in 2028. I mean, that's a pretty low bar. The fact that I'm saying the good news is we're gonna have an election.
- [61:33]
Joanna Coles
And it's for another year.
- [61:35]
Jeffrey Toobin
Oh, yeah, but it is. But it is good news, I think. And, you know, that's all I got for you, Joanna. Sorry.
- [61:42]
Joanna Coles
So under Joe Biden, there was a report into the Supreme Court in terms of should they extend it, should they expand it? Because obviously he inherited a conservative court. How long would it take to. Or what would it take to actually sort of, if a new Democratic president were coming in and he wanted to offset the conservative nature of the Supreme Court, what would it take?
- [62:11]
Jeffrey Toobin
Well, you know, I think one thing a lot of people don't know is that the Constitution establishes a Supreme Court, but it does not set the number of justices. That is something that's set by statute by Congress. And in fact, in the early years, from in the early 18th century to just after the Civil War, the number of Supreme Court justices actually varied. Congress changed it several times, and it was only after the Civil War that it was set at 9. Franklin Roosevelt, famously, during, you know, when the Supreme Court was striking down many aspects of the New Deal during the. During the Depression, he came up with what was known as the court packing plan, where he was going to raise the number of justices for every justice over the age of 70. It was packaged as an attempt to help the elderly justices. It was transparently an attempt to raise the number of justices and he could appoint the new ones so they could overturn what happened instead. This is the good thing about getting elected four times as president. Those justices just retired. And Roosevelt wound up having nine appointments to the Supreme Court, and the court wound up doing his bidding on those issues. Tomorrow, Congress could pass a law if the president says. Signed it and said, There are now 15 justices on the Supreme Court and the new president could appoint six of them. So, you know, that could be done. There are Also possibilities. And here is where there are constitutional issues. They could set mandatory retirement. That might take a constitutional amendment, might set term limits. I mean, there are many proposals out there for term limits. I think they're good proposals. You probably would need a constitutional amendment to do it. But frankly, when you look at how our Congress is as polarized as it is, and you'd need 60 votes in the Senate to get past a filibuster on these things, to say nothing of passing in the House increasing the number of Supreme Court justices so that the incumbent president got a bunch of new appointments. It could theoretically be done, but I think it's just extremely unlikely.
- [64:33]
Joanna Coles
It could also backfire with the next president then doing the same thing.
- [64:38]
Jeffrey Toobin
Exactly. I mean, that's one of the arguments against it, is once you open that Pandora's box of increasing or decreasing the number of Supreme Court justices, it could become sort of like what redistricting has become. You know, there was a norm that said, you know, congressional districts are only changed once every 10 years after the census. Right now, of course, you know, it's open season all the time. And we have Texas, we have California, we have, you know, all these states that are changing. That's the worry about any sort of change on the makeup of the Supreme Court, is that once you change it, once it becomes something easier to change.
- [65:22]
Joanna Coles
Okay, so you mentioned term limits. You wrote an excellent piece in the New York Times last week arguing that Judge Alvin, who's been put in charge of the Maduro case, should not be in charge of the Maduro case because he's gonna be 93, which feels very old to take.
- [65:39]
Jeffrey Toobin
I don't think it feels very old. I think it is very old. 93 is not the new anything, as far as I'm concerned.
- [65:46]
Joanna Coles
I don't know, 93 could be, you know, if you're a fan of.
- [65:49]
Jeffrey Toobin
It's looking better and better to me.
- [65:53]
Joanna Coles
So what would the. Should there be age limits? How would you deal with this? Well, 93 seems very old to Dr. Let alone oversee a case of a South American dictator.
- [66:04]
Jeffrey Toobin
Well, you know, this again, you know, this comes from the Constitution. Article 3 of the Constitution, which covers the judiciary, says judges should serve during good behavior. What that means is unless you're impeached, you can stay indefinitely. And there are judges who have stayed into their 90s. There have been norms. There have been, you know, part of the judicial culture falling asleep in the bay, which is just. It's a bad. And there is peer group pressure among judges not to embarrass the judiciary and stay too long. But there have been sleeping judges, sleeping federal judges in history. Many states, like New York, for example, have mandatory retirement for judges at 75. I think that would be a good rule.
- [66:54]
Joanna Coles
Why is Judge Hellerstein still there?
- [66:56]
Jeffrey Toobin
Well, because he is a federal judge, and federal judges have no mandatory retirement because they can serve during good behavior, which means until you're impeached. And judges have historically never been impeached. I think the combination of public pressure and pressure from his colleagues will lead him to let another judge take the Maduro case. I'm pretty confident about that. I have no illusion about the power of my journalism. My record is almost perfect in having no influence on the outcome of events. But on that one, I think there may actually be some change.
- [67:35]
Joanna Coles
Well, you certainly started a conversation about it. I don't think anybody realized he was going to be 93 when the case really got going. And the minute you hear it, you're like, okay, no sense.
- [67:44]
Jeffrey Toobin
No, no, good.
- [67:45]
Joanna Coles
Unfortunately, it makes no sense. All right, thank you so much for coming. And really, please promise that you will come back when we have big decisions that we need to unpack.
- [67:54]
Jeffrey Toobin
My pleasure.
- [67:59]
Joanna Coles
So my favorite part of that was just learning more about the justices as they sit swinging their legs from their grand chairs in chambers. I can't imagine what their lunches are like on Friday when they get ready to sit around and discuss the decisions they're making. And of course, it's terrifying the idea that Donald Trump might be able to replace the two older justices, Samuel Alito and Clarence Thomas, with younger justices, which means that the court remains conservative for years and years to come. Anyway, leave us a comment. I would really like to know what you think and whether or not you think Jeffrey was laying out a blueprint for Donald Trump circumventing SCOTUS decision if they come back and decide that he can't apply tariffs. So. Leave us a comment on YouTube. Don't forget to subscribe to the podcast and to subscribe to the Daily Beast. And what else? Oh, yes, I know. Join the Daily Beast Beast community. You can become a Beast Tier member, which means you get lots of extra things. It's all good. And you get dinner with Michael Wolf. Kind of. We've got to start inviting people. And we also have a word from our editor at large, Kevin Fallon.
- [69:17]
Matt Wilstein
Joanna, hi. I have to tell you about something that we're obsessed with. I'm Kevin Fallon.
- [69:22]
Jeffrey Toobin
And I'm Matt Wilstein.
- [69:24]
Matt Wilstein
And we are hosting Obsess, the podcast about about all the TV shows, movies and entertainment newsmakers that we're all obsessed with. So make sure you subscribe to us on YouTube at the YouTube channel. Make sure you follow us wherever you get your podcasts. Just search for Obsessed the podcast and we will see you there.
- [69:43]
Joanna Coles
Big thanks to our special bebeast tier of members. Here they are Yvette Johnson Methinks Batsio Farrell Milthen Lynn Smith Shelby Max Cubitt, David Sherry, Thomas Moore, Maria Voltain, D. Huger Watts Cynthia Lund, John H. Overocker Deb K. Ostrander Sandra Clark Travels With Carl Andrew Beaver Capinator Harry Clark, Dawn McCarthy Daniel dog lover M. Griner, Dyestone Fulvia Orlando Herbie Andrew Mellor Tattnall, Val Love, Francisco Will Hutchison, Andrea Hodel Bocock, D.C. sharon Shipley, Connie Rutherford, Karen White and last but never least, Heidi Reilly. Big thanks to our production team, Devon Rogerino, Rachel Passer and Heather Passaro and Ryan Murray. It's just growing. The team is growing.
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- [71:15]
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- [72:17]
Jeffrey Toobin
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- [72:19]
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