Disrobing the Nine

Nine black robes lead the highest judiciary in the land. Nine black robes, nominated by the President and confirmed by the Senate, control the federal judiciary with a final and binding interpretation on the Constitutionality of federal laws. Nine independent, opinionated, passionate and political minds hold the power to declare the legality of abortion, prayer in school, and affirmative action.
These nine individuals are examined in light of landmark decisions in Jeffrey Toobin’s best-selling book, The Nine. Toobin, a CNN legal analyst and New Yorker journalist, recently sat down for an exclusive interview to discuss the Court’s recent ruling in the controversial Bush v. Gore decision of 2000, the future of abortion in Roe v. Wade, the legality of the anti-terrorism measures in the post 9-11 America, and the strengths and failures of the media’s coverage of the Iraq War.

ALI: For many Muslim Americans, and the general populace as well, the War on Terror has brought about an “abuse of Executive powers” to the detriment of civil liberties and Due Process rights of the American citizens. Furthermore, we see the detention of non-combatant individuals in Guantanamo Bay, warrant less wiretapping, the Terrorism Surveillance Act and so forth. How pervasive, if at all, have post 9-11 “security” measures encroached on Due Process rights of American citizens and the “human rights” of the international community in general?

TOOBIN: This has been one of the key issues in the Supreme Court since 9-11. The battle between the Bush administration and – to the great extent the court–about how much civil liberties can be trimmed back in the interest of preserving National Security. One of the themes of my book, and one of the striking things of the Supreme Court over the past 7 years has been that the Court has rebuked the Bush administration repeatedly, and said it’s behavior and its system, in particular Guantanamo, does not work and is not permissible under the Constitution.

That struggle continues and there’s another case before the court now, but the court has several times said to the Bush administration, “What you have done is not acceptable.”

ALI: Name me one example.

TOOBIN: I think the biggest example was in 2004 when the Bush Administration said people could be confined in Guantanamo without access to lawyers, without access to courts. The Supreme Court very clearly and very emphatically said, “No. You have to give them Due Process Rights.” In 2005, the Court said not good enough. So, it’s a real struggle.

ALI: How has the Supreme Court reacted to the 4th Amendment Due Process violations, specifically, in the Warrantless Wiretaps?

TOOBIN: The Supreme Court has not decided those issues as of yet. Those issues have mostly been in the political realm so far, not in the courts. So, the issue of warrantless wiretaps, the issue of surveillance generally–due to much of the Patriot Act–has not really come up.

ALI: Do you see it coming up anytime soon on the docket?

TOOBIN: Not really, because the cases haven’t made their way through.

ALI: Let’s first talk about “Bush v Gore.” Your book spends considerable time on the 2000 Supreme Court decision that essentially handed Bush the hotly contested Presidential election, saying the Florida recounts would be a constitutional violation. Many say this was a landmark and outrageous act and the court acted rashly and recklessly with their decision. Describe the influential impact of that decision not only on the political-cultural landscape of America but also amongst the relationships between Supreme Court Justices themselves. Did Al Gore and others act appropriately in giving into the Supreme Court’s decision in Bush v. Gore?

TOOBIN: Wow. That’s a big question. As I make clear in the book, I think Bush v. Gore was very much a low moment in the history of the court. I think the Court really behaved badly, and I think the Court should’ve let the recount proceed. It was just a really disappointing moment in the history of the Court. Certainly, the Justices in the minority were heartbroken, but they are in the business of getting along with each other. And, so it didn’t poison relationships. They put their nose down and got back to work.

Did Gore react appropriately? I think Gore had to concede that the Supreme Court had final authority. One of my favorite quotes about the court is one Justice Robert Jackson said, “We are not final because we are infallible. We are infallible because we are final.” They are final, because they have the last word. I think they were wrong. I think Gore believes they were wrong. But, there are no appeals in the Supreme Court.

ALI: What was the impetus for the Court to make such a rash decision so quickly?

TOOBIN: I think given the fact the new President had to be inaugurated January 20th, they had to move quickly since they were already in mid-December. I didn’t think they had to move as quickly as they thought they had to move. But, certainly the case had to be expedited. Frankly, I think the much smarter move, which the dissenters recommended, was to not get involved at all. Let the Florida courts handle the Florida recount and stay out of it.

ALI: Of course we can all assume here, but do you think there would’ve been a difference if the Florida courts would’ve handled it themselves?

TOOBIN: Well, this is a great, historical question, and there have been subsequent recounts with ambiguous results. I think the only fair answer is if Bush had lost Bush v. Gore we don’t know who would’ve been President; we don’t know how the recounts would’ve turned out. Since the Court decided the way it did, the election could only have been won by Bush. So, a decision for Gore would have let the votes be counted and let the chips fall where they may. A decision for Bush was a decision to make Bush the President.

ALI: We see each administration, whether Republican or Democrat, try to fill Supreme Court vacancies (when they arise) with ideologically like minded individuals. What presidencies, in your opine, have gone against the partisan, ideological divide in their Supreme Court nominees and chosen “the best candidate for the job” regardless of ideological affiliation? Do you see any differences in the likely Supreme Court nominees of Clinton and Obama (assuming they win)? Similarly for McCain (assuming he wins?)

TOOBIN: I disagree with the premise of your question. I don’t think there is such a thing as a best nominee independent of politics. I think given the kind of issues that are before the Supreme Court, there are inherently ideological distinctions to be made. That is not something that is a criticism of the Court or the Justices; I think that is just a realistic assessment of the issues the Court gets. I think there’s a huge difference between whom Obama or Clinton would nominate, or whom McCain would nominate. I don’t see a big deference between Clinton or Obama, but I do see a huge difference with McCain.

McCain is on record as saying Roe v. Wade should be overturned. Republicans don’t believe in racial preferences. So, it’s a huge, huge difference

ALI: If McCain comes in, is it safe to say that they will try to come in with a right-wing judicial candidates to “pack the Court?”

TOOBIN: “Pack the Court”–I don’t think that is a fair–I think a Republican like McCain will appoint Justices in line with his own views, which is the right of every President. He will appoint Justices who are very conservative on law enforcement, who will believe in broad Executive Power; people who don’t believe the Constitution protect a woman’s rights to abortion. These are issues that different between the parties.

ALI: Americans have heard the term “Judicial Activism” and “packing the court” frequently in the past 5 years from the Republican Party. The former relating to a complaint that liberal judges legislate from the bench, implementing “laws” when their role is simply that of a judiciary commenting on the constitutionality of certain legal actions. The latter referring to an overt and concentrated effort to fill the Supreme Court with “right wing” judges. Is it healthy for a functional democracy to be an ideological majority of any group on the Supreme Court?

TOOBIN: Well, you know, I think this is question for the voters. If they keep Republicans as President then there should be a majority of Conservatives on the Court, because that’s how our system is setup. So, I don’t have a problem with that. It’s a reflection of the voting populace.

ALI: Let’s talk about Abortion and the abortion cases: Roe v. Wade and Casey. From your experience as a reporter, legal analyst, observer and commentator on politics and society, why does this issue and specifically this legal decision, arguably more than any other, inspire such vehement and feverish debate and passions? What is the future of Roe v Wade and Casey?

TOOBIN: I think those are two great questions. Abortion has become the single, most important issue in the Supreme Court. First of all, there is immense practical significance to the Court’s ruling. If the Supreme Court overturns Roe v Wade, then abortion will be illegal in about a third of the country the next day. It’s an extremely practical change. Second, abortion is now symbolic of a whole political mindset that relates to women’s rights, to sexual revolution, and banning abortion is–historically–an extremely important thing to some. So, that’s why Roe v Wade is such a big deal. I take McCain at his word. He says he wants it overturned and he will appoint Justices who will do it, and I think that’s true.

ALI: There has been increased corporatization of American media and journalist outlets. Most in America, regardless of their political ideology, almost 70%, openly say they no longer trust the “news” and believe it to be biased. Furthermore, there has been domestic and international criticism regarding “embedded journalists” during the Iraq War and the media’s susceptibility to tow the Administration’s line and refusal to ask probing questions regarding military intelligence, weapons of mass destruction and the motives behind the war. Now, you’re a reporter from CNN, a respected news station and a reporter from New Yorker, an influential and intellectual magazine. Do you believe the masses’ skepticism and cynicism towards news media outlets is warranted? Should the media be criticized for their handling of the Iraq War?

TOOBIN: Certainly. The news media gets a lot of criticism, and it deserves a lot of criticism. We’re an important part of the country. We’re an important institution, and we should get the same type of scrutiny we purport to give others. So, I think scrutiny is a great idea. I think the news media’s performance, particularly in the lead up to the war of Iraq in 2002-2003, was a low moment for the news media. I think there was an absence to skepticism–that was really wrong. I think we’ve largely made up for it. Particularly I think in Bush’s second term we’ve seen a very aggressive and intelligent news media performance. So, I think we’re imperfect, but more good than bad.

WAJAHAT ALI is Pakistani Muslim American who is neither a terrorist nor a saint. He is a playwright, essayist, humorist, and Attorney at Law, whose work, “The Domestic Crusaders,” (www.domesticcrusaders.com) is the first major play about Muslim Americans living in a post 9-11 America. His blog is at http://goatmilk.wordpress.com/. He can be reached at wajahatmali@gmail.com





Wajahat Ali is a poet, playwright and essayist living in the Bay Area. His widely acclaimed work, The Domestic Crusaders, the first major play about Muslim-Americans was produced by Ishmael Reed. He can be reached at: wajahatmali@gmail.com