The Court and the Campaign

Summary

Podcast Summary: "The Court and the Campaign"

Podcast: The Political Scene | The New Yorker
Date: February 18, 2016
Host: Dorothy Wickenden (Executive Editor, The New Yorker)
Guest: Jeffrey Toobin (Staff Writer, The New Yorker)

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Episode Overview

This episode centers on the political firestorm following the death of Supreme Court Justice Antonin Scalia in February 2016. With a critical seat suddenly open in the middle of a presidential campaign year, host Dorothy Wickenden and legal analyst Jeffrey Toobin discuss Scalia's judicial legacy, the constitutional and political battles over his replacement, and the broader consequences for the 2016 election and American democracy. The conversation focuses on judicial philosophy, landmark Court decisions, and the unfolding standoff between President Obama and Senate Republicans over filling the vacancy.

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Key Discussion Points & Insights

1. Antonin Scalia’s Legacy on the Supreme Court

Timestamp: 01:15–04:56

• Judicial Influence: Jeffrey Toobin outlines Scalia’s profound effect on Supreme Court thinking, particularly in ideologies:
  • Originalism: The Constitution interpreted per the framers' 18th-century intent.
    • Quote: “Originalism, which is the idea that the Constitution should be interpreted in accord with the wishes of the framers…” — Jeffrey Toobin [02:35]
  • Textualism: Statutory interpretation should rely on a law’s words, not on legislative intent.
• Ambiguity of Impact: While Scalia’s ideas dominate conservative circles, “a purely originalist view of the Constitution is not the law of the land and never has been.” — Toobin [04:47]
• Intermingling of Law and Politics: Legal decisions inevitably reflect politics.
  • Quote: “No Supreme Court Justice, Antonin Scalia included, can divorce their legal views from their political views.” — Toobin [03:43]

2. Landmark Cases & Controversies

a. Bush v. Gore (2000)

Timestamp: 04:56–07:27

• Political Nature: The Supreme Court stopped Florida’s recount, securing George W. Bush's election.
  • Quote: “The accusation is that the five justices in the majority were acting more out of a political desire to see George Bush elected president than consistent with their otherwise strongly felt views about how the Constitution should be interpreted.” — Toobin [06:06]
• Critique: Decision marked a “very low point in the history of the Court.” — Toobin [07:21]

b. Affordable Care Act Decisions

Timestamp: 07:27–08:50

• Scalia’s Dissent: Voted against Obamacare in cases upholding the law, with his opinions revealing strong ideological leanings.
  • Quote: “His status as a really angry conservative seemed to trump his constitutional erudition.” — Toobin [08:43]

c. Separation of Powers Battles

Timestamp: 08:50–10:23

• Obama’s Executive Orders: GOP used the Court to challenge environmental and immigration actions.
  • Significant: The Court, in a rare move, blocked Obama’s climate regulations preemptively, “indicative of a real hostility.” — Toobin [10:12]

3. The Battle to Replace Scalia

Timestamp: 11:08–14:19

• Political Reality:
  • Toobin predicts: “President Obama will not get a nominee confirmed in his remaining 11 months in office.” [11:39]
  • Senate math makes confirmation “simply inconceivable” under partisan conditions.
• Republican Strategy: Likely to refuse hearings/consideration regardless of Obama’s nominee.
• Political Stakes: The open seat could flip the Court to a liberal majority for the first time in generations.
  • Quote: “If President Obama...appoint[s] a Democratic successor to Scalia, the Court would flip to five liberals and that would be an earthquake.” — Toobin [13:15]
• Obama’s Calculus: Will likely nominate an impeccably qualified minority candidate to highlight GOP obstruction and Democratic values.
  • Potential Nominees Discussed:
    • Paul Watford (African American, 9th Circuit)
    • Jane Kelly (8th Circuit, former public defender)
    • Jacqueline Nguyen (Vietnamese-American, 9th Circuit)

4. Electoral and Public Consequences

Timestamp: 16:06–17:29

• Impact on Election:
  • Supreme Court seat motivates party bases rather than swing voters.
    • Quote: “I think it’s symbolic of how our politics have evolved over the past decade or so… The way to win presidential elections is to motivate your base.” — Toobin [16:25]
  • While significant, the Court vacancy issue likely fades behind economic and national security concerns but remains more prominent than in past elections.

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Notable Quotes & Memorable Moments

• “No Supreme Court Justice, Antonin Scalia included, can divorce their legal views from their political views.” — Jeffrey Toobin [03:43]
• “A purely originalist view of the Constitution is not the law of the land and never has been.” — Jeffrey Toobin [04:47]
• “The ending is President Obama will not get a nominee confirmed in his remaining 11 months in office.” — Jeffrey Toobin [11:39]
• “If President Obama...appoint[s] a Democratic successor to Scalia, the Court would flip to five liberals and that would be an earthquake.” — Jeffrey Toobin [13:15]
• “His status as a really angry conservative seemed to trump his constitutional erudition.” — Jeffrey Toobin [08:43]

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Timestamps for Major Segments

• 01:15 — Introduction to Scalia’s legacy and impact
• 02:24–04:56 — Explanation and critique of originalism and textualism
• 04:56–07:27 — Bush v. Gore and the political nature of the Court’s decision
• 07:27–08:50 — Scalia on Affordable Care Act; growing political tone of the Court
• 08:50–10:23 — GOP’s use of the courts to challenge Obama’s executive actions; Court intervenes on climate change
• 11:08–14:19 — The battle over Scalia’s replacement: strategy, Senate math, and nominee speculation
• 16:06–17:29 — The Supreme Court’s role in motivating the bases in the 2016 election

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Conclusion

In this timely post-Scalia episode, Wickenden and Toobin deliver a nuanced, historically grounded discussion of the late justice’s impact and the fierce constitutional and political firefight his vacancy triggered. Their analysis is frank, underscoring both the realpolitik of Washington and the evolving significance of the Supreme Court in American elections. For listeners seeking to understand the intersection of law and politics at a pivotal moment, this episode is rich, clear, and urgent.

Transcript

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[Dorothy Wickenden]

This is the Political Scene, a weekly conversation with New Yorker writers and editors about Politics. It's Thursday, February 18th. I'm Dorothy Wickenden, executive editor of the New Yorker. I'm after the death on Saturday of Justice Antonin Scalia, Republican senators vowed not to confirm any replacement nominated by President Obama. On Tuesday, Obama spoke about his right to do so.

[Jeffrey Toobin]

The Constitution is pretty clear about what is supposed to happen now. When there is a vacancy on the Supreme Court, the president of the United States is to nominate someone. The Senate is to consider that nomination and either they disapprove of that nominee or that nominee is elevated to the Supreme Court. Historically, this has not been viewed as a question.

[Dorothy Wickenden]

Jeffrey Toobin joins me to discuss the politics in and about the court. Jeff Obama called Scalia a giant of the Supreme Court on Tuesday. That's a term that can cut both ways. How important was he in shaping the Court's jurisprudence and its politics?

[Jeffrey Toobin]

Well, I think more important in the latter than the former, but very important. I really do think Justice Scalia is one of the handful of most influential Justices in the entire history of the Court. But it's an ambiguous legacy. I mean, on the significant side is that he is responsible for two schools of thought that have been enormously influential. One is originalism, which is the idea that the Constitution should be interpreted in accord with the wishes of the framers of the document in the late 18th century. And second, what's known as textualism, which is less high profile but refers to how statutes, laws should be interpreted according only to their terms, not to what the legislative history, what the authors, the legislators, might have intended the words to mean. But originalism in particular is very controversial, even among conservatives. But it is widely discussed, widely believed in the broader political community, and it's Scalia's theory. And most Supreme Court Justices don't have that kind of influence.

[Dorothy Wickenden]

His decisions have also been seen, like those of any justice for that matter, as being deeply informed by politics.

[Jeffrey Toobin]

No Supreme Court Justice, Antonin Scalia included, can divorce their legal views from their political views. But to take his views at face value, the most obvious originalist analysis says the framers of the Constitution and the Bill of Rights did not think they were giving their views on a woman's right to an abortion. They did not think they were protecting gay people from discrimination. Accordingly, an originalist says the Constitution does not protect a woman's right to choose an abortion, does not protect gay rights. And that view, very pungently and frequently expressed by Scalia and his admirers, is one that has a lot of sway. It has generally not gained five votes on the Court. And I think that's one point that's very important to keep in mind about Scalia, is that a purely originalist view of the Constitution is not the law of the land and never has been. And I think when weighing his influence, that's a very important factor to keep in mind.

[Dorothy Wickenden]

I want to ask you about Bush v. Gore, which you've written about a great deal and is, I believe, one of the most famous or notorious, depending on your perspective, decisions in court history.

[Jeffrey Toobin]

No question. The question is, is it consistent with an originalist view?

[Dorothy Wickenden]

Yes. And explain the political nature of the decision.

[Jeffrey Toobin]

Well, just to go to the legal setting of Bush v. Gore, the Florida Supreme Court had said, according to the Florida Constitution and the Florida laws, the vote should be recounted in Florida. The Supreme Court reversed that ruling 5 to 4, saying that separate recounts in separate counties violated the rights to equal protection under the 14th Amendment guaranteed to George W. Bush. The critique of Bush v. Gore, which I share, is that the originalists and other conservatives on the Court had always said that the equal protection clause, which was designed to protect the rights of African Americans, should be interpreted narrowly. And here you had this white presidential candidate with a very novel claim that his rights were being violated simply by having Florida recount the votes according to its own laws. The accusation is that the five justices in the majority were acting more out of a political desire to see George Bush elected president than consistent with their otherwise strongly felt views about how the Constitution should be interpreted.

[Dorothy Wickenden]

And the idea that the Supreme Court determined the fate of the election was utterly unprecedented. And, one would think, in opposition to what the Constitution says.

[Jeffrey Toobin]

In fairness to the Court, the situation was extremely novel. And most elections don't wind up in the Supreme Court because they're not that close. But once it got to the Court, one would think that believers in judicial restraint and states rights, like Justice Scalia claimed to be, would have said, look, this is a matter for Florida to decide according to Florida's own laws. That's what they usually say in other settings. And I think they were fairly criticized for a very aggressive tact to protect the rights of George W. Bush. And I think the Bush v. Gore is a very low point in the history of the Court.

[Dorothy Wickenden]

And what about his dissent on the Affordable Care Act?

[Jeffrey Toobin]

Well, you know, there were two Affordable Care act decisions, both of which he voted in the minority against the Obama administration. The first, where they said the law was constitutional. The second where they interpreted the law to allow the exchanges to continue to function. And again, the Court, ever since the days of Chief Justice John Marshall, has always taken an expansive view of the power of Congress to regulate commerce, especially since the New Deal. And if you believe in the precedents of the Court, a law that regulates approximately 15% of the American economy sees the very definition of regulating interstate commerce. But the Court said no, it was an overstep of the Court's commerce power. But Chief Justice Roberts, along with the four liberals, said it was legitimate under the taxing power. Scalia said that it wasn't. And I think his last few years on the bench were very much a time when his politics came to the floor. Whether it was about Obamacare or immigration or separation of powers or church and state issues, his status as a really angry conservative seem to trump his constitutional erudition.

[Dorothy Wickenden]

What about the separation of powers and how Republicans have been turning to the courts and ultimately the Court, to bypass Obama's veto power? And what cases are coming up that fall into that category?

[Jeffrey Toobin]

This has really come up a lot. This is one of the Main themes of the last seven years at the Supreme Court is that President Obama, especially in his first two years in office, passed a number of laws with the Democratic Congress, and then after the House went Republican, made aggressive but traditional use of his power to pass executive orders, often in the environmental area, but also when it comes to immigration. And the conservative movement has been very aggressive in challenging those moved in the court. And perhaps the most high profile cases that are currently before the court unresolved involve the President's attempt to limit expulsions from the United States for people who were not in the country legally. And also in a really shocking thing, which may be Justice Scalia's very last act as a Supreme Court justice, the Court, preemptively, before even a lower court addressed the issue, put a hold on the President's climate change regulations. Something that's really just enormously important and very unusual, procedurally indicative of a real hostility.

[Katie Drummond]

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[Michael Kollory]

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[Lauren Goode]

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[Katie Drummond]

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[Dorothy Wickenden]

What about the current battle over Obama's determination to send the Senate a candidate for confirmation? As he noted at the top of the program, this is a right of his under the Constitution. What's the Republican strategy here? We've seen Judiciary Committee Chairman Chuck Grassley now saying, contrary to Mitch McConnell, that he wants to see a nominee before issuing a rejection. At least.

[Jeffrey Toobin]

Yeah, I think it's important in discussing this issue to start at the end. The ending is President Obama will not get a nominee confirmed in his remaining 11 months in office. The important number to consider, there is 14. There are 46 Democrats in the Senate and 54 Republicans. In order to beat a filibuster, which is routine now in the Senate, the Democrats would need 14 Republicans to join them to get to 60. It is simply inconceivable in the current United States Senate that there would be 14 Republicans who would let President Obama appoint a new justice to the Supreme Court. So it's just not going to happen. Now, along the way, there are questions that are unresolved. Will President Obama's nominee get a hearing? Will senators announce their objection as Mitch McConnell did, before Obama even nominates someone? Those questions are interesting and perhaps politically significant. But I think it's important to keep the main point in mind, which is Obama will not get someone confirmed.

[Dorothy Wickenden]

He admitted in his comments, I believe, on Tuesday, that he himself objected to the nomination of Samuel Alito in 2008. How do you see him pursuing this issue given the fact that it is an election year? He wants a Democratic president to succeed. His entire legacy is at stake, given the next nominee.

[Jeffrey Toobin]

Just to isolate why this Supreme Court seat is so important. It's not just because Antonin Scalia is a historic figure. It's because for really a generation and maybe two generations, the Supreme Court has had five conservatives and four liberals. If President Obama or his Democratic successor appoint a Democratic successor to Scalia, the Court would flip to five liberals and that would be an earthquake. Everybody who follows the court knows that. So the Republicans who object to virtually everything President Obama does on principle are even more likely to fight him on this point. That's the setting. But in terms of the politics, the President has to recognize that this is a political act as much as it is a nomination to the Supreme Court. It's not going to be a white man. It's not going to be a someone who is a novel choice like any sort of politician. I think it's going to be an impeccably qualified minority man or woman who is going to be a symbol of Democratic aspirations. And Obama hosts Republican obstruction.

[Dorothy Wickenden]

There's been a lot of debate. Well, will he choose a left wing candidate for political reasons? That seems highly unlikely given Obama's political lenience. Who do you think might be among the top tier candidates?

[Jeffrey Toobin]

I initially thought that Sri Srinivasan, who is a new judge on the D.C. circuit, would be a likely nominee. He would be a very likely nominee if there was a chance that he might be confirmed. He is impeccably credentialed according to the traditional qualifications. He was confirmed unanimously by the Senate. He would be the first Indian American ever on the court. I do think though that as I have studied the issue more carefully, he has a lot of opponents in the labor movement, in the left of the Democratic Party. His most celebrated case as a private lawyer was representing the former CEO of Enron. In the current political moment. That's not a great asset in the party that Bernie Sanders presumes to run. So I think it is more likely to be perhaps Paul Watford, an African American Judge on the 9th Circuit, former clerk for Ruth Bader Ginsburg, former federal prosecutor, who doesn't have that kind of baggage and also is a representative of a key Democratic constituency. I think Jane Kelly, a judge on the 8th Circuit, a former public defender, there's a judge on the 9th Circuit named Jacqueline Nguyen who came as a refugee from Vietnam. I think those figures represent more of the point Obama is trying to make rather than sort of a traditional, heavily qualified judge who's not going to get confirmed anyway.

[Dorothy Wickenden]

And how big a role do you think this is going to play in the election? Is this an issue that the American public is is clamoring to hear more about?

[Jeffrey Toobin]

No, but I think it's symbolic of how our politics have evolved over the past decade or so. You know, when we talked about presidential elections in recent years, it was all about, you know, what motivates swing voters, what's going to move, soccer moms or security moms or, you know, the voters who might go either way. The parties have determined that that group is smaller and smaller. And the way to win presidential elections is to motivate your base. Swing voters, in my experience, don't care much about the Supreme Court, but the base does. And it could be a way for both sides of motivating their base. You know, I do think as we get into the fall, as we get into the real crunch time of whoever the two candidates are, the court will likely fade as an issue. And the issues like the economy and national security and the personality of the candidate, sort of the traditional big issues will come to the fore. But far more than any presidential election that I've ever covered or even been alive for, because of this vacancy, the Supreme Court will certainly be an issue and the candidates will be asked about it. They'll be asked about it in debates. So bigger than ever before, but ultimately not dispositive.

[Dorothy Wickenden]

Thank you so much, Jeff. Jeffrey Toobin is a staff writer and the author, most recently, of the the Obama White House and the Supreme Court. This has been the political scene from the New Yorker. This podcast is produced by Alex barron for new yorker.com I'm Dorothy Wickenden.

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[Katie Drummond]

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[Jeffrey Toobin]

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