Preview: Jeffrey Toobin to hold court at lecture series
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Observers of the U.S. Supreme Court loved "The Nine," Jeffrey Toobin's insightful book that showed readers, in juicy, vivid detail, how political ideology and personal alliances influence the justices and, to some degree, determine their decisions.
"The Oath," published last month, features his lively, thoughtful analysis of how the court has changed under the leadership of Chief Justice John Roberts along with the additions of Justices Elena Kagan and Sonia Sotomayor.
Now a staff writer at The New Yorker magazine, the 52-year-old author speaks tonight at 7:30 in Oakland's Carnegie Music Hall at Literary Evenings, made possible by the Drue Heinz Trust.
As the son of a television journalist and broadcast news producer, the limelight initially appealed to Mr. Toobin, who earned his law degree at Harvard in 1986.
"I thought I wanted to be the person who was the newsmaker," he said in a recent telephone interview.
All of that changed after independent prosecutor Lawrence Walsh sued to stop the writer and his publisher from distributing a book about a secret investigation into the Iran-Contra affair, which arose from a series of covert arms deals by members of President Ronald Reagan's administration. In 1992, Mr. Toobin published "Opening Arguments: A Young Lawyer's First Case: United States v. Oliver North."
"I think my genetic destiny kicked in. I'm a journalist. I'm not a participant in public affairs. I am happy to watch and tell the story rather than be the story," the author said.
In "The Oath," the senior legal analyst for CNN reviews the Citizens United case, a Supreme Court decision that held that corporations are people. The decision prompted President Barack Obama to chastise the court during his state of the union address earlier this year.
Not every dollar spent in the presidential campaign can be traced to that decision but, Mr. Toobin said, "We are now in a period where the Supreme Court has initiated a substantial deregulation of American politics. If you believe the fundamental metaphor, which is that money is speech, the government can't really regulate campaigns. That is a fundamentally new metaphor in American law."
While many people bemoan the court's reasoning that corporations are people, Mr. Toobin said, "The important part of the decision is that money is speech. The court can't tell people what to think and what to say. If you believe that giving money is the same as giving a speech, then government is not in a position to regulate much."
In the past, government has regulated political contributions because, "We don't want campaigns to go to the richest candidate," he said, adding that the court is likely to expand the scope of that ruling in future cases.
"Sheldon Adelson gave $10 million to super PACS [political action committees] supporting Newt Gingrich. If money is speech, then Adelson should be allowed to give that money directly to the campaign, instead of to a super PAC. I think those changes are likely to be in the works if the court doesn't change."
As for gun control, "Democrats have just given up on the issue. The suspicion that Democrats are somehow after people's guns is pervasive. In my experience, it is pervasive among people who are not really going to vote for Obama anyway."
This year, the high court considers an affirmative action case, the federal Voting Rights Act of 1965 and the Defense of Marriage Act.
The court's liberal wing, he said, may decide the Defense of Marriage Act case because Justice Anthony Kennedy, who often is the key swing vote, has written two of the court's most significant gay rights decisions.
"He has shown a real receptivity to arguments about discrimination against gay people. The DOMA case concerns states that have same-sex marriage, whether the federal government will honor those marriages. Will the IRS treat married same-sex couples in Massachusetts the same way they treat heterosexual couples?"
Although the court's conservative justices often analyze the "original intent" of the framers of the U.S. Constitution, Mr. Toobin believes that approach is limited.
"It's one technique the justices can use in determining how to resolve a case. But it's not the only one. It's folly to suggest that looking at these debates in 1787 can tell you whether satellite tracking by police is constitutional."
First Published October 8, 2012 12:00 am