President Obama’s Judicial Legacy

Summary

Podcast Summary: President Obama’s Judicial Legacy

The Political Scene | The New Yorker
Date: October 24, 2014
Host: Amelia Lester (for Dorothy Wickenden)
Guest: Jeffrey Toobin (Staff Writer, The New Yorker)

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Overview:

This episode of The Political Scene explores President Obama’s enduring impact on the federal judiciary. Amelia Lester and Jeffrey Toobin delve into how Obama’s judicial appointments have reshaped the courts, the evolving role and persona of Justice Ruth Bader Ginsburg, and the administration’s broader philosophy toward the courts’ role in shaping American life. Throughout the discussion, Toobin shares insights from his in-depth interview with Obama, revealing the President’s cautious, professorial approach to the law, legacy, and the limitations of judicial power in a polarized era.

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Key Discussion Points and Insights

1. Ruth Bader Ginsburg’s Newfound Public Persona

• Ginsburg’s Emergence:
  • Ginsburg, once a reserved figure, has become a bold public commentator and cultural icon.
  • Toobin attributes this transformation in part to the loss of her husband, Marty, which sparked her decision to "come out of her shell."
• Notable Quote:
  • “She has done a real public service and also provided some great entertainment.” – Jeffrey Toobin (03:09)
• Ginsburg on Supreme Court Gender Balance:
  • Famous quip: When asked, “When do you think there will be enough [women on the court]?” Ginsburg replied, “My answer is when there are nine.” (02:16)

2. Obama’s Mark on the Federal Judiciary

• Unprecedented Diversity:
  • Obama has appointed a majority of judges and justices who are nonwhite males, an unprecedented shift.
  • Lifetime appointments allow these changes to outlast a given administration.
  • Obama focused on diversity and professional qualifications rather than explicit ideological litmus tests.
• Substantive Impact:
  • Obama’s appointees are generally more liberal – supportive of Obamacare and voting rights – but lack the overt ideological agenda seen under President George W. Bush.
• Notable Quote:
  • “He has achieved a level of diversity in the federal courts that is very much unprecedented in the history of the United States courts.” – Jeffrey Toobin (05:08)
  • “He has not said we have a substantive agenda. He has concentrated much more on diversity and professional qualifications.” – Jeffrey Toobin (05:58)

3. Obamacare and the Power of Judicial Appointments (Halbig Case)

• Significance of the D.C. Circuit:
  • The case of Halbig challenges subsidies in federal healthcare exchanges.
  • Thanks to Obama’s appointments, the D.C. Circuit shifted in composition, vacated a ruling against subsidies, and is set to rehear the case.
• Notable Moment:
  • “That’s a very concrete illustration of how the changes in the composition of the courts, thanks to President Obama’s appointments… could have a very real substantive impact on the future of Obamacare.” – Jeffrey Toobin (08:28)

4. Obama’s Cautious Judicial Philosophy

• Courts as Followers, Not Leaders:
  • Obama prefers courts to follow, not dictate, social change. He welcomed the Supreme Court’s refusal to rule immediately on same-sex marriage, seeing value in gradual, state-level progress.
• Notable Quote:
  • “He’s someone who… does not believe that courts can lead social change. …very indicative of his cautious approach to legal issues.” – Jeffrey Toobin (09:54)
• Obama’s Character:
  • Toobin describes Obama as “cool in every sense of the word,” detached and reserved even in the face of political frustration.
  • “He is not someone who gets very excited about these issues, I think perhaps to a fault.” – Jeffrey Toobin (11:08)

5. Affirmative Action and the Limits of Legal Reform

• Cautious Approach to Race:
  • Obama’s support for affirmative action is limited; he prioritizes improving education for all over targeted racial preferences.
• Notable Quote:
  • “The way you help African Americans is get them a good education… not by setting up racial preferences.” – Jeffrey Toobin (13:35)
  • Obama views the law as “a blunt instrument” for addressing social inequalities. (14:10)
• Contrast with Roberts Court:
  • Obama and the Chief Justice differ sharply on affirmative action—Obama is a cautious liberal, while Roberts leads gradual dismantling of affirmative action.
  • Obama’s judicial appointees are “not radicals,” but rather “cautious liberals like the president.”

6. Gay Rights: Consensus and Change

• Roberts vs. Kennedy:
  • Roberts has consistently opposed gay rights cases; the real swing vote is Justice Kennedy.
• Federal Courts Reflect Society:
  • Support for same-sex marriage in courts, including among some Republican appointees, mirrors rapid societal change.

7. Voting Rights and Court Challenges

• Restrictive Voting Laws:
  • Republican-led state legislatures have passed laws making voting more difficult (ID requirements, limited absentee/early voting).
  • Challenges are ongoing, but the Supreme Court (especially post-Shelby County) has permitted many of these laws to stand.
• Court Procedure and Substance:
  • Lack of emergency stays (like in the Texas case) allows restrictive laws to take effect before full hearings, drawing ire from Ginsburg.
• Notable Quote:
  • “This is a conservative Supreme Court and by and large they have allowed these Republican changes to voting rights law to go into effect.” – Jeffrey Toobin (19:38)

8. The Future: Ginsburg’s Potential Retirement

• Speculation and Realities:
  • Some liberals urge Ginsburg to retire to secure a like-minded replacement, but she is in “no hurry to go.”
  • Obama resists any pressure, showing personal fondness and respect for Ginsburg’s independence.
• Notable Exchange:
  • “[Obama] was very quick to say that he had no advice whatsoever to her on when and whether she should retire.” – Jeffrey Toobin (21:10)
  • “I’m not coming within 10 miles of telling Ruth Ginsburg what to do because no one tells Ruth Ginsburg what to do.” – Jeffrey Toobin (21:51)

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Notable Quotes & Memorable Moments

• “My answer is when there are nine.” – Ruth Bader Ginsburg, via Jeffrey Toobin (02:16)
• “She has done a real public service and also provided some great entertainment.” – Jeffrey Toobin (03:09)
• “He has achieved a level of diversity in the federal courts that is very much unprecedented in the history of the United States courts.” (05:08)
• “He’s someone who… does not believe that courts can lead social change.” (09:54)
• “He is not someone who gets very excited about these issues, I think perhaps to a fault.” (11:08)
• “The way you help African Americans is get them a good education… not by setting up racial preferences.” (13:35)
• “I’m not coming within 10 miles of telling Ruth Ginsburg what to do because no one tells Ruth Ginsburg what to do.” (21:51)

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Key Timestamps

• 01:35 – Introduction and Ginsburg’s role as lone woman on the Court
• 04:11 – Ginsburg’s evolving role as the voice of the liberal bloc
• 05:08 – Obama’s influence on federal judiciary diversity
• 07:03 – Obamacare’s Halbig case and D.C. Circuit
• 09:14 – Obama’s favorite Supreme Court decision and judicial philosophy
• 11:03 – Obama’s temperament and engagement with political challenges
• 12:24 – Affirmative action and Obama’s approach to racial issues
• 15:05 – Gay rights and distinctions between Roberts and Kennedy
• 16:29 – Voting rights, restrictive laws, and Supreme Court responses
• 20:17 – Debate over Ginsburg’s retirement and Obama’s response
• 22:01 – Conclusion

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Conclusion

This episode compellingly details President Obama’s nuanced, pragmatic approach to the judiciary. He emphasizes diversity and professional competence in his appointments without imposing an ideological agenda, and remains committed to the view that politics—not courts—should drive social progress. Justice Ginsburg emerges as an independent, influential figure, and the conversation spotlights the high stakes and enduring consequences of judicial appointments in shaping America’s political and legal future.

Transcript

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[Amelia Lester]

This is the Political Scene, a weekly conversation with New Yorker writers and editors about Politics. It's Thursday, October 23rd. I'm Amelia Lester, in this week for Dorothy Wickenden. This week, Justice Ruth Bader Ginsburg was asked about the three years when she was the only woman on the Supreme Court.

[Jeffrey Toobin]

It was very lonely. It gave the public a wrong view of the U.S. system of justice.

[Amelia Lester]

She was speaking to NPR's Nina Totenberg at the 92nd Street Y in New York City. Later that night, she made this quip about women on the court.

[Jeffrey Toobin]

So people ask me sometimes.

[Amelia Lester]

When do.

[Podcast Sponsor Announcer]

You think there will be enough?

[Jeffrey Toobin]

My answer is when there are nine.

[Amelia Lester]

Right now, we're a third of the way that President Obama has replaced two, two male justices with women. He's had a much bigger effect on the lower courts. Here to talk more about how Obama has reshaped the federal judiciary is Jeffrey Toobin. Jeff interviewed the president for a piece in this week's issue of the magazine. Hi, Jeff.

[Jeffrey Toobin]

Hi, Amelia.

[Amelia Lester]

Ruth Bader Ginsburg doesn't think the judiciary has become diverse enough, but hasn't it changed quite a bit under Obama?

[Jeffrey Toobin]

Ruth Bader Ginsburg I think is going to start doing stand up in Vegas. She is so out there.

[Amelia Lester]

It's that or opera.

[Jeffrey Toobin]

It's just kind of amazing that she's now, who was formally through much of her legal career, kind of a shy and retiring figure, is now offering public real time commentary on everything the Supreme Court does. Frankly, it's kind of great, I think.

[Amelia Lester]

Do you think she's been emboldened by this cult worship that has grown around her lately?

[Jeffrey Toobin]

Oh, absolutely, absolutely. You know, I did a big profile of her a couple of years ago, which was just sort of the beginning of her coming out, as it were, as a major public figure. And I think her evolution is an interesting illustration of how the personal affects the political. You know, her husband died. She had a wonderful, wonderful marriage for many years. And Marty Ginsburg was a very outgoing, life of the party kind of person, very different from Ruth. And she took his death as an opportunity to say, in effect, you know what, I'm going to come out of my shell. I'm not going to be the shy and retiring figure anymore. And it's really been great to watch her emerge as, you know, the notorious rbg. She has done a real public service and also provided some great entertainment.

[Amelia Lester]

And do you mean that she's been more vocal in her decisions in the court as well as speaking outside the court?

[Jeffrey Toobin]

Well, I think she has very much taken it upon herself to be the voice of the four democratically appointed justices, Democratic with a capital D that is, you know, the court is so ideologically split right now where you have five justices appointed by Republican presidents, four appointed by Democrats, and with the exception of gay rights on controversial issues, by and large, they vote very much in lockstep with each other. And Ginsburg has made it a point of unifying the four justices. And I think it is powerful rhetorically, if not substantively for the four of them to speak in one voice. And that's something Ginsburg very much wants them to do.

[Amelia Lester]

You mentioned gay rights and we're going to talk about gay rights in the Supreme Court a little later. But first let's consider the wider judiciary and what Obama's appointments tell us about his goals.

[Jeffrey Toobin]

In my interview with the President, the point he clearly wanted to make was that he has achieved a level of diversity in the federal courts that is very much unprecedented in the history of the United States courts. You know, as people know, all federal court appointments to the trial courts, to the courts of appeals, to the Supreme Court are lifetime appointments. So this is an opportunity for a president to make his or her mark for decades, long after he leaves office. And President Obama has named a majority of judges and justices who are nonwhite males. And that's a big change. And the President's very proud of that. And well, he should be.

[Amelia Lester]

So what effect have those more diverse appointments had? What effect have they had on decisions that have been made?

[Jeffrey Toobin]

They are less conservative, more liberal than the Bush appointees. The Obama judges have been much more pro Obamacare, pro voting rights than their predecessors. But what is also striking about Obama and judges is that he has not made a strong substantive agenda for his judges in the way that Republicans have. George Bush very unapologetically would say, we want judges who will limit abortion rights, who will lower the barriers between church and state, speed up executions. That is not something President Obama has done. He has not said we have a substantive agenda. He has concentrated much more on diversity and professional qualifications. So I think in that respect, the substance of the Obama judges is a little more hazy than the Republican.

[Amelia Lester]

I keep hearing so much about the D.C. circuit and specifically about this possible challenge to Obamacare that is happening there. Can you talk to us a little bit about why that's so important and what do you think is going to happen?

[Jeffrey Toobin]

This is a case called Halbig, which is now pending before the D.C. circuit. And as my father used to say, to make a long story unbearable, this is what the case is really about. As most people know, one of the core tenets of Obamacare is that for people who can't afford health care, there are subsidies. The law provides that you can either buy health insurance on exchanges, marketplaces run by states, or in 34 states run by the federal government.

[Amelia Lester]

And why are those 34 states run by the federal government?

[Jeffrey Toobin]

Because the states themselves refused to create the exchanges. They tend to be Republican states who didn't want any part of Obamacare. So what the Halbig decision said was, in those 34 states where the exchanges are run by the federal government, subsidies are not allowed. So, you know, millions of people who now get subsidies for their health insurance under Obamacare could lose it. If the Halbig decision goes the way that the D.C. circuit originally went, the way Circuit courts work is that the judges sit in panels of three and by a vote of two to one, a panel declared this part of Obamacare unlawful. But what makes the Obama judiciary appointment story so significant is that the full D.C. circuit voted to rehear the case. So there are seven Democratic appointees and four Republican appointees now on the D.C. circuit. So they have now vacated, that is overruled the original decision against Obamacare, and now they're going to rehear the case in December. And I think that's a very concrete illustration of how the changes in the composition of the courts, thanks to President Obama's appointments and the Senate's confirmations, could have a very real substantive impact on the future of Obamacare.

[Amelia Lester]

One thing I was really struck by in your piece is when you asked the the President about what his favorite decision had been during his tenure and it struck you as sort of an odd choice. Can you talk us through a little bit how that conversation went?

[Jeffrey Toobin]

An odd choice, but a revealing choice. You know, I asked the President what his favorite decision was and I thought, well, it would probably be the decision upholding the constitutionality of Obamacare in 2012 or the Windsor decision where the court struck down the Defense of Marriage act. But it was neither. And in fact, it was the decision very recently by the Supreme Court to deny certiorari to refuse to hear all the latest challenges to the same sex marriage restrictions around the country. So what the President said was he thought it was good that the court stayed out of the controversy for now and let the states develop these policies one by one, which I thought was a revealing window into Obama's view of the courts as fundamentally followers, not leaders, when it comes to creating political change in the country. He's someone who believes deeply in politics and does not believe that courts can lead social change. This is how he differs, I think, from a lot of liberals who really want the courts to be an engine of social change. He thought it was better for the courts to stay out of it, for the process to move more slowly, and for a political consensus to arrive around same sex marriage. That to me was, I think, very indicative of his cautious approach to legal issues, but to all political issues.

[Amelia Lester]

And that cautious approach led you to describe him as professorial. And the thing that's so interesting to me about that is that he's now been president for six years and surely he's seen that it's extremely difficult to make anything happen through the political system. It's so interesting to me that he still has that faith. There what do you attribute that to? What does that say about how invested he is in the judicial system's role in our democracy?

[Jeffrey Toobin]

You know, a lot of people ask me after I interviewed the president, what's he like? And what he's like, I think is he's cool in every sense of the word. He's, you know, he's a cool guy. He's got a very impressive aura about him. He's got a personal swagger that I think is very appealing. But he's also cool in a political or sense, in that he is not someone who gets very excited about these issues, I think perhaps to a fall. And I guess I was struck by how he was somewhat detached and somewhat reserved and almost diffident about the frustrations that he's faced. I don't know, maybe that's good. Maybe it's better that he's cool about it than pounding the table. But that's his character and that's his presidency.

[Amelia Lester]

Okay, we need to take a break here for this week's sponsor, and we'll be right back.

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[Amelia Lester]

Jeff, let's talk about affirmative action. A lot of people have noted that the Supreme Court under John Roberts has been slowly dismantling affirmative action. And I was wondering where Obama came down on this and how his appointments reflect that.

[Jeffrey Toobin]

Well, again, I thought Obama took a cautious tack on this issue. You know, he again feels that changes when it comes to race. Traditional civil rights are going to come largely from the political system, not from the courts. And he expressed very limited, cautious support for affirmative action. But he also said that it is something that the courts need to watch. The concept of reverse discrimination, discrimination against white people by racial preferences in favor of minorities is something he appears to believe is real. And, you know, his idea, his belief is that the way you help African Americans is get them a good education in the K12 schools, not by setting up racial preferences. And I think that is consistent with a political vision that is cautious and limited and one that is far from revolutionary. And I think his appointees reflect that they are diverse Obviously, Barack Obama doesn't look like any previous presidents, and his judges don't look like a lot of previous judges. But they are not radicals. They are not people who are shaking up the system in a profound way. They're different from Republicans, but they are cautious liberals like the president.

[Amelia Lester]

And he even described the law as a blunt instrument to you, didn't he? Or at least a blunt instrument in these situations, which suggests that's right.

[Jeffrey Toobin]

And, you know, that is, you know, it's an interesting example of how much he has departed from the traditional civil rights agenda. He thinks the best way to help African Americans is to help everyone and to make the society wealthier and more successful, but not to target help specifically at African Americans. And that is not a traditional liberal view.

[Amelia Lester]

Which brings us to the curious Venn diagram between Chief Justice Roberts and President Obama, which is gay rights and the fact that the Roberts Court has been affirming gay rights, including the right to marry, which President Obama has supported since 2012. Is there some way in which we could say that President Obama and Chief Justice Roberts are cut from the same cloth?

[Jeffrey Toobin]

You know, not really, particularly when it comes to same sex marriage. I mean, remember, Chief Justice Roberts has voted against gay rights in every case where it's come up. The real issue in the Supreme Court in same sex marriage is Anthony Kennedy. Anthony Kennedy is the one Republican appointee who appears to have a very strong view in support of gay rights. And the reason the Defense of Marriage act case, the Edie Windsor case, came out the way it did is that Kennedy voted with the four liberals. So I think that's what's going on with gay rights at the Supreme Court. It is true that Democratic appointees to the lower courts have been striking down anti same sex marriage laws, but it's true that Republican appointees are doing it too. And I think what's going on in the federal judiciary with regard to same sex marriage reflects what's going on in the broader country that just. The country's changing very quickly. So you see both Democratic and Republican appointees voting to strike down bans on.

[Amelia Lester]

Same sex marriage because it reflects what's going on more broadly. Yeah. Let's talk a bit about voting access. That's been coming up lately too. We have an election coming up in a few weeks, and there have been several recent court decisions that might have a very real impact on people's ability to vote. Tell us about them.

[Jeffrey Toobin]

After the Republican landslides in 2010, you saw a lot of state legislatures now in Republican hands, pass laws that Made it harder to vote. Requirements for photo IDs, limitations on absentee ballots, limitations on early voting. And all of that has now wound up before the courts. There are a lot of challenges basically saying that these changes to the voting laws are, are either unconstitutional or in violation of the Voting Rights Act. But what the Supreme Court has done is limit the use of the Voting Rights Act. They struck down a very significant part of it in a decision called Shelby county two years ago. It's clear that President Obama is frustrated by the new restrictions on voting, but here's an example of where he may well be stymied by the Republican majority on the Supreme Court because they are upholding most of these changes on voting rights. So here is a situation where, yes, there are many lower court judges who have struck down some of these requirements, but ultimately this is something that winds up before the Supreme Court. And unless and until he has more appointments on the Supreme Court, which it looks like he will not have any more, it seems very unlikely that he is going to be able to roll back these significant changes on voting rights.

[Amelia Lester]

And I know that in the most recent Supreme Court decision on voting rights in Texas, the majority didn't release an opinion, but can we just see this as a political agenda to restrict voting rights? Is that too cynical? I mean, do you have a sense of why they would want to uphold these sorts of decisions that make it harder for people to vote?

[Jeffrey Toobin]

Well, just to go a little vote a little. A little nerdy on you. Technically, the Supreme Court did not decide the challenge to the voting rights changes in Texas. What happened was they were asked to issue a stay that is, to prevent the laws from going into effect before the election without even hearing the case in full. And so the Supreme Court, all they did was they didn't issue an emergency stay. The actual challenge to the case is still pending before them, and they may issue a decision later. You know, I think sometimes procedure dictates substance. The fact that they didn't issue the stay means these changes go into effect, means it's harder to vote in Texas. But I don't think you can say with certainty that the Supreme Court has rejected these challenges just yet. I think they probably will. A ruling on a stay is not the same as a ruling on the merits.

[Amelia Lester]

Although Justice Ginsburg was pretty irate in her dissent on that nonetheless.

[Jeffrey Toobin]

Well, she was making precisely that point, that by refusing to issue a stay, you are effectively deciding the substance of the issue because you're letting the changes go into effect. But the standards for a stay are somewhat different than the procedure. But the broader point is correct. This is a conservative Supreme Court and by and large they have allowed these Republican changes to voting rights law to go into effect.

[Amelia Lester]

Looking to the future, all eyes are obviously on Ruth Bader Ginsburg as she may or may not be considering retiring. And I thought the exchange that you had with the president on this subject was so interesting because a lot of liberals have suggested that it would be prudent of her to retire while Obama is still in office so that he can replace her with someone who is ideologically similar. But she clearly is in no hurry to go and he doesn't seem especially fussed about her going either. Can you tell us a little bit about why she maybe doesn't feel the need to retire while Obama is still there?

[Jeffrey Toobin]

Well, you know, this is a very, frankly, I think a very interesting issue. I mean, Ruth Ginsburg is 81 years old. She is, she's had various health problems, although history certainly seems to be fine now. And you know, a lot of people, as you said, have said, look, you know, why not let President Obama appoint a 45 year old justice who will reflect her views through the decades. And Ginsburg has said, you know, I'm not going anywhere. And besides, she said in a recent interview with Elle magazine and our former colleague Jessica Weisberg, former fact checker yes, indeed. She said, besides, Obama couldn't get anybody appointed anyway because the Senate is so polarized. And I asked the president about that and he bristled a little bit in that he said, you know what, we can get people confirmed. We're doing great. You know, whether he's right or not, I don't know. You know, he does seem to have a great personal fondness for Justice Ginsburg. And also he knows that any sort of pressure on her is not going to work. So he was very quick to say that he had no advice whatsoever to her on when and whether she should retire.

[Amelia Lester]

Was I wrong to read a little bit of him feeling uncomfortable about that line of questioning with you?

[Jeffrey Toobin]

I think he recognized that it's considered bad form to try to suggest a Supreme Court justice should leave. But I also think like everyone else, just to return to what we started at the beginning, he's got this sort of sense of wonder of Ginsburg's agelessness and enthusiasm at this stage of her career. And I think he was sort of smiling and saying, I'm not coming within 10 miles of telling Ruth Ginsburg what to do because no one took tells Ruth Ginsburg what to do.

[Amelia Lester]

No I don't think anyone does. So thank you, Jeff. Jeffrey Toobin is a staff writer and this has been the political scene from the New Yorker. I'm Emilia Luster.

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[Katie Drummond]

What the hell is going on right now? And why is it happening like this? At Wired, we're obsessed with getting to the bottom of those questions on a daily basis. And maybe you are, too. I'm Katie Drummond, the global editorial director of Wired, and I'm hosting our new podcast series, the Big Interview. Each week I'll sit down with some of the most interesting, provocative and influential people who are shaping our right now. Big Interview conversations are fun.

[Amelia Lester]

I want a shark that.

[Katie Drummond]

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[Jeffrey Toobin]

So in a lot of ways, I try to be an antidote to the unimaginable faucet of reactionary content that you see online. To the best of my ability, every.

[Katie Drummond]

Week we're going to offer you the ultimate luxury of our times, meaning and context. True or false? You, Brian Johnson, the man sitting across from me, one day, at some point, as of yet undefined in the future, you will die.

[Amelia Lester]

False.

[Katie Drummond]

Tell me more. Listen to the Big Interview right now in the same place you find WIRED's Uncanny Valley podcast. Subscribe or follow wherever you get your podcasts.

[Jeffrey Toobin]

From.

[Amelia Lester]

Prx.