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)

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.

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)

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)

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

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.