An hour with CNN Legal Analyst Jeffrey Toobin

from wood rots auditorium at the university of kansas a pr present an hour with legal analyst jeffrey toobin i'm kate mcintyre jeffrey toobin is a senior legal analyst for cnn writes for the new yorker and is the author of six books including the nine inside the secret world of the supreme court and his latest the oath the obama white house and the supreme court toobin spoke at the university of kansas on april twenty fourth two thousand fourteen as part of the humanities lecture series from thirty five k use hall center for the humanities is a question on many of your minds as we begin tonight which is who is my favorite supreme court justice now this is a somewhat difficult question these days because my favorite justice is no longer on the court he's been on a he's been gone for a few years now and that's david souter and i love david souter so much because he is just so weird he doesn't have a

computer he doesn't have a cell phone he doesn't like the electric light he moves his chair around his office over the course of the day to capture the sunlight through stroke it's the same thing for lunch every day it has a cup of yogurt and an apple including the core system discusses the likes of the auto but that's the great thing about joe justice souter in addition to his jurisprudence which i admire as well is that he had a great perspective on what it meant to be a supreme court justice because as i think we all recognize the supreme court is an important institution an important part of american life but the justices themselves are are largely obscure an end very much an unknown to the public and to consider new this recognizes that he's sometimes even have a little fun with that and i'll give you an example that for reasons that remain obscure to this day david souter and stephen bryer are frequently mistake him free china now to know what they look like they're really don't look anything like

what happens to both of them with some frequency and once i'm not too long ago justice souter as he often did was driving from washington to his home in new hampshire he stopped a little restaurant to get something to eat and he's sitting there a couple comes up to him and the guy says i know you you're on the supreme court right now you're stephen bryer right and sewer water barrus the phone from his wife so he says yes and stephen bryer so they're chatting for a little while and then there is a question that souter wasn't ready for the guy said so so justice bryer what's the best thing about being on the supreme court he thought from and he said i have to say it's the privilege of serving with david souter at this guy ryan well and he's gone from the courthouse ri i need a yeah i need it for every justice i'm working on many ways are the supreme court by the numbers a little bit

there are six men and three women first time in history there are three women on the supreme court and there are six catholics and three jews there are no protestants on the supreme court one murmur of schlock new service that sometimes really that gets applause when i said when i saw him in an autumn there are representatives of four new york city's boroughs on the supreme court sonia sotomayor is from the bronx and vin scully is from queens ruth ginsburg is from brooklyn and elena kagan is from manhattan tragically staten island is on represented on the supreme court but perhaps future appointments will dress up anyway those are high hopes an interesting fact it's about the supreme court but frankly i don't think any of them are terribly important here's an important fact about the supreme court there are five republicans and four

democrats now i'm gonna talk somewhat longer about the supreme court that you now know most of what you need to know about the contemporary united states' supreme or there are five republicans and four democrats are there it is sometimes believed that is sometimes told it is sometimes devoutly wished for that the united states supreme court be a refuge from the political our conflict that is so for billiard to us army it is a barn at the bottom that that you know originally that's why justices are judges wore roses it meant to make them look all white so they would just be seen assertive interchangeable with one another just providing justice well i'm here to tell you for better for worse that is not the case with the united states supreme court that the partisan conflict that is so from earlier two us in congress in the race to the white house is reflected with great precision at the united states supreme court and five republicans and four democrats will tell you the result the most

not all but in most of the high camp highly controversial cases they come become before the justices and to see why this moment in the history of the supreme court is so important i think that you need to go back to the last time this there was not a very narrow majority on the supreme court which it was the last time there was a real ideological dominant faction on the supreme court and that was the made in late nineteen sixties and during that period that was a good that was when iran will serve the late part of earl warren's ten years justice and there were seven liberals on the supreme court and there really was a liberal agenda the earl warren and william brennan his great deputy would meet every saturday morning and they'd say how what we know what cases are eager to take power going inside these cases and they really wanted to course a lot of very intentional way in a more liberal direction and year after year that's really what they did a nineteen sixty four

justice brennan's famous opinion in your times versus sullivan the case odd that jobs gave the pressing for new protections from why wall nineteen sixty five our justice william o douglas is opinion in our griswold vs connecticut the case that first a recognized right to privacy in the constitution and said that states could no longer ban into married couples from buying birth control nineteen sixty six chief justice warren's opinion in miranda versus arizona revolutionizing criminal procedure and perhaps more importantly changing television dramas for ever everybody knows in miranda warnings are in a very odd nineteen sixty seven perhaps the best named case in the history of the supreme court what is was that i'm sure you know is the loving case loving versus virginia case that said states could no longer banned racial intermarriage think about nineteen

sixty seven there are people in this room who were alive in nineteen sixties that most students won't let other people who are coral i live in ninth and it's really an incredible thing when you think about it when brock obama's parents got married in hawaii in nineteen sixty their marriage was a crime in nineteen states and there were people in prison in this country are for the crime of ways to be called the surge a nation in in nineteen sixty and it is worth recognizing and frankly it's worth celebrating that was such as that are not only unconstitutional today but but literally on so that was the mid late sixties but then richard nixon became president in nineteen sixty nine and four justices left in quick succession he really know it never know supreme court vacancies around ago jimmy carter is the only president in american history to serve a full time and have no appointments to the supreme court yet

gotten just a republican and no vacancies while he was president richard nixon was only president for five and a half years you'll recall we had to leave early remember but our body the four appointments to the course of the last four chief justice warren left eye john carlin left hugo black left in abe fortas left and who didn't who did nixon name nixon named chief justice warren burger those pal harry blackmun in lehman's and as you think about that list all are richard nixon's appointments to the supreme court i think it tells you something about the supreme court but it tells you something even more important about what is to me the most important political development of our lifetime which is the evolution of the republican party and there is no more appropriate place to discuss the evolution of the republican party

than here in the state of kansas yeah at early is alma ata it is the difference between bob dole in your current government i mean it is just it's it's it's you can argue it's a good thing or that thing but it is just a dramatically different republican party and i know there've been divisions within the republican party here in kansas reflecting that that tension but that is a national off a national a phenomenon as well and you can see it in the supreme court decisions decisions of the nineteen seventies a lot of people thought the nineteen seventies that all nixon had always appointees to the supreme court oh they're all the court's gonna move way to the right but it did and in fact the supreme court decisions august nineteen seventies were nearly as liberal as the decisions in the nineteen sixties think about the big decisions of the nineteen seventies the nixon tapes case they essentially forced nixon out of office the pentagon papers case they approved school busing in

nineteen seventy two the supreme court ended the death penalty in the united states at every law on the books was that unconstitutional though they didn't let it affect him in nineteen seventy six and still the most controversial decision of the mall nineteen seventy three roe versus wade the case that said states could no longer man abortion it's worth remember that column that was a seven to two acclaimed in the only two dissenters in in roe v wade william rehnquist and byron white who was appointed by president kennedy and so three of the four nixon justices were in the majority in in roe v wade and i think that tells you a lot of wear a lot about where the republican party was in the nineteen seventies well the changes began of course with the election of ronald reagan in nineteen eighty and in the end he became president nineteen eighty one and he brought with him to washington someone who is i think a very underrated figure are in

recent american history and abstemious of those emmy's all he said it was first made to president reagan and later it became the attorney general and he said well there has been a liberal agenda at the supreme court for a long time we had a conservative agenda to it and we need to appoint judges and justices who reflect that his agenda in a very systematic way arm he yeah he he said he organized the reagan administration to do that nineteen eighty one not coincidentally that was when the federal society was founded the federal society a lot of liberals and i've talked about the federalist society as if it's something out of the davinci code like it some symmetry is having secret or sinister about that the federal society it's an organization of conservative lawyers and law they put what is no coincidence that it started in nineteen eighty one because that was a time of tremendous off for a mass audience in the conservative movement and so what was that conservative

agenda expand executive power and racial preferences intended to assist african americans speed up executions lower the barriers between church and state and above all are reverse roe vs wade and allow states once again to ban abortion now another important part of the reagan revolution says sometimes people call it was the arrival in washington of a group of brilliant young conservative lawyers and who were two of the best and the brightest in that group samuel alito and john roberts an end when they were nominated to the supreme court twenty years later and some of the documents from that era came out and they were killing of nineteen eighty five samuel alito when a memo planning litigation strategy this was triggered solicitor general's office he said what can be made of this opportunity to advance the goal of bringing about the eventual over ruined of roe versus wade later that you're applying for a promotion in the justice department he wrote i am particularly proud

of my contributions to recent cases in which the government has argued to the supreme court that the constitution does not protect a right to an abortion sam alito then samuel alito now by the republican party of ronald reagan was not the republican party of today either and you saw that in reagan's appointments to the supreme court nineteen eighty one up almost as soon as reagan took office potter stewart unexpectedly announce that he was stepping down and president reagan had made a campaign promise the jimmy carter didn't even make a nineteen eighty reagan said if i get a chance i'm going to appoint the first woman to the supreme court and so reagan said i have a i have a chance to do it it would set out his people is to find me a qualified woman and it frankly was not a simple thing in nineteen eighty one there were not a lot of women especially not a lot of republican women in the traditional pipelines for supreme court appointees it's up so reagan's people went all the way to the intermediate appeals court in the state of arizona and not even the highest

court in arizona to find a remarkable figure who was and is sandra day o'connor and justice o'connor even then it was quite clear he was not a social conservatives not a religiously oriented conservative basically a moderate conservative in that was just fine with ronald reagan and that's the kind of justice she turned out to be during her long an immensely consequential tenure on the supreme court in nineteen eighty six chief justice robert or stepped down reagan elevated william rehnquist from associate justices chief justice named bob antonin scalia that's a dough question conservative justice then conservative justice now the following year in nineteen eighty seven very important moment in the history of the supreme court because that was when those files that they're now the justices don't like it when we in the news media refer to one justice as the swing

justice but you know what it's been a very useful term for the last almost forty years because they're high court has been really evenly divided between liberals and conservatives and there's one justice in the middle and it was pat in the seventies and they for much of the seventies and eighties and so his departure was extremely significant so what happened ronald reagan nominated robert bork to that scene number and something very important had happened between the confirmation of scalia and rehnquist in eighty six and the nomination of bork in nineteen eighty seven the democrats had retaken control of the united states senate's of the chairman of the judiciary committee was no longer strom thurmond all south carolina but instead a young senator from delaware named joseph biden and biden engineered hearings that were really a surging inquiry into bork's record because bork was very distinguished very alarmed a prolific an honorable person he'd served as a judge as well as a law professor and he was very very

conservative he had said that the civil rights act was a monstrous thing he'd said that there was no such thing as a right to privacy in the constitution and the senate said to conservative he was voted down fifty eight to forty two now subsequently nominees to the supreme court had learned from boards experience to stonewall anyone any questions asked why give the senator some innate that they that's the last time you had a nominee really engage with the senators about their views five our work paid the price and howard baker who was white house chief of staff at the time he said the president reagan let you know we can get someone that conservatives' through the supreme court as through the senate and as a result ronald reagan nominated anthony kennedy to that seat nine anthony kennedy who's a liberal what he's certainly not as conservative as i am as as robert bork would have been really set the stage for it either in the rehnquist years on the supreme court which

i wrote about my previous book the night now when i started working as a journalist writing about the supreme court i was inspired by a book that i owe is familiar to many of you a really great book called the brother by bob woodward and scot armstrong its first week really behind the scenes a book about the supreme court and the arm the theme of the brother him was how all the justices without regard to politics couldn't stand warren burger they thought it was a pompous jurgen an end it was just a very contentious as you know about the history of the supreme court beat those sorts of contentious relations among the justices have been the rule more than the exception i don't know how many of you have the misfortune to hear of a justice named james mcbride who served on the court from nineteen fourteen to nineteen forty one who was such an appalling anti semite to be used to get up and leave the conference room whenever justice brandeis are just as cardozo with speeches that prince of human beings i'm sure you all remember william o douglas he served for thirty

six years levy the longest tenure of anyone still in the history of the court was a cantankerous liberal an end and i used to spend its summers in rural washington state and in nineteen fifty six he had a terrible car accident he drove his car off a cliff and the first question everyone asked fact the supreme court was where was felix frankfurter at the time as they hated each other so much but from ford are vying for either run him off the road now anyway so as i started working on that on that on that one that the relationships among the justices i thought great i'm gonna write about all the contention on the rehnquist court well somewhat to my disappointment as a citizen are message my disappointment as a journalist somewhat to my satisfaction as a citizen i learned that was never the case on the rehnquist court william rehnquist was always popular among all of alec's liberal and conservative ally well why well in part the reason was was

that rehnquist engineered a tremendous reduction in the court's workload at in the eighties back when state was courted they were deciding about a hundred fifty cases a year by the time rehnquist died in two thousand five they were deciding about ad cases a year you do the math at cases divided by nine justices divided by four law clerks of peace it's a pretty cushy deal being on the supreme court no wonder they live so long right in the eighties you know there was a proposal say probably remember is this there was this proposal to have the sort of silver appeals court in between the circuit courts in the united states supreme court and warren burger was actually behind this proposal an end this proposal like many such proposals went to the white house counsel for an evaluation and white house counsel the time span and fred fielding and he has signed a young warrior on his staff to write a memo about whether this was a good

idea and i think the young lawyer you signed was recent supreme court law clerk named john roberts and this is with john roberts wrote in a memo while some of the tales of wall emanating from the corridor enough to bring tears to the eyes it is true that only supreme court justices and schoolchildren are expected to end to take the entire summer off now chief justice roberts doesn't talk this way anymore and the entire summer of what's just fine from where he said again it is true that the court today remains a congenial place among the justices continue to get along very well now to do that you need only go to a supreme court oral argument now i'm sure in this distinguished group majesty that many of you have seen supreme court oral arguments or argued all do it if you happen and i'm serious about this if you haven't

you should really make an effort to go it's it's a really magnificent civil experience that's free hot and rob just you do you it's here unless it's a super high profile case it's usually easy to get in and see adam and they didn't have fewer seats in the supreme court the court room then there are unclear if you really get a good sense of the job what the justices are like and you see the interaction and there is of course one very well known fact about supreme court oral arguments in that is that there are eighty justices that are very engaged in very revered and ask lots of hard questions and clarence thomas right now almost never worried twenty second two thousand six i was the last time clarence thomas asked a question so we're your guy and those of us who go to a lot of supreme court arguments you sit there and you think will this be they

could be here i know it's not that you know you're gay but exhibited everest and you know but this is a very easy and people start obviously that's got a lot of attention but what what people masses in this way have to go is justice thomas is not an isolated or unpopular member oh the supreme court by any means in fact he's been enormously influential in certain areas like the second amendment like campaign finance writing opinions that later become ob live later get adopted by a majority an arm it in and you know he's not silent during oral arguments either your talks just as part of justice kennedy the past those little jokes and joe you know so it's not that these ice it's just for his own bizarre reasons and uses never ask any questions now although it's useful i think to think of the rehnquist court in two parts a

nineteen eighty six to two thousand and two thousand to two thousand four and the dividing point in the history of the supreme court in many respects the dividing point in the history of our country is the court's decision in bush v gore know it meant even low these fourteen years later i'm still a little obsessed with bush v gore you know justice scalia's a terrific public speaker he does a lot of speaking out and he takes questions he's not afraid and then people sometimes arm you know and they often actually double estimate how hostile question about which the gore or you know like what about which the poor and he always says the same thing oh get over it it's i can't say i'm over it after all these years but that's ok now you know my last book before the nine was as you mentioned that too close to call about the recount in florida and when i was writing the book i really tried hard to interview al gore writes i mean you know you read a book about that easily one interview al gore well i tried i wrote i call it

idea i worked every connection i had an outdoor just wouldn't talk to me and solar of the book with us cooperation well while while i was working on the nih i met out or at a social occasion and he had read too close to call and we were chatting and i said to him as the vice president you never believe this but i'm writing another book where bush v gore is at the center of it i said i think i must be the biggest bush v gore junkie in the war and he said to me he made the second as it had a point really narrow because it did have a big stake in the outcome i was igor happened and as i believe you know bush won the case became president and something peculiar happens at the supreme court from two thousand to two thousand five the court moved to the left the court got more liberal after butch conservative president took office why well first off think about the cases from two thousand two thousand five that ended the death penalty for the

mentally retarded ended the death penalty for juvenile offenders that his side in lawrence v texas on the case that said gay people could no longer be thrown in prison for having consensual sex saved affirmative action for the university in the university of michigan law school case and in case after case they rejected the position of the bush administration on the treatment of the detainees in guantanamo so why why did the court moved to the left from two thousand thoughtful think about who the swing justice was of that period it was sandra day o'connor and during that period sandra day o'connor grew more and more alienated from the modern republican party she didn't like john ashcroft and that was not her idea of what a republican should be she liked the war in terror she didn't like the war in iraq and above all justice o'connor was alienated by something doesn't get a lot of attention today but is i think a major event in the history of the last decade and that's the terry sharp

objects terry showcase had a big impact on justice o'connor in part because it had to do with the issue of judicial independence and what she and others are some others regarded as an interference with the federal judiciary and in florida but also in a more emotional level as you recall the jerry schemmel case was about who should make medical decisions for a critically ill adult woman and our family members or the government and justice and it was precisely that time two thousand three the justice o'connor's beloved husband john was slipping into the grip of alzheimer's disease and so this issue of medical decision making was hardly an abstract one for justice o'connor but art john to last in the way of alzheimer's disease continued to get worse in two thousand five ive justice o'connor went to her beloved friend william rehnquist or law school classmate at stanford her friend ruth they raise their families together in phoenix miraculously

wound up on the supreme court at the same time an arm she went to justice chief justice rehnquist and said look i have to step down from the court to take care of john and she did in june of two thousand five and over labor day weekend of two thousand five we rehnquist died of cancer and there were effectively two vacancies at the same time and president reagan or president bush i named to distinguish representatives of the modern republican party john roberts and samuel alito and they are more conservative than their predecessors john roberts as more conservative than william rehnquist and op op ed samuel alito is a lot more conservative that said that then sandra day o'connor and what we have seen i believe under the roberts court is a change in the

nature of what judicial conservatives and asthma because certainly in the sixties when the warren court was engaging in this very activist attempt to rewrite mostly are laws about segregation in the united states the idea of conservatism and judicial restraint it meant bob deferring to the elected branches of government deferring to the democratically elected a decision makers but what we have seen in the roberts court i think is a very aggressive form of conservatism that imposes at distinctive view of the constitution in a way in a very aggressive way and if you look at the signature decisions of the roberts court there are overturning the the democratically elected branches striking down the gun control laws in washington dc and chicago striking down the school integration plants and move though in seattle striking down the core of the voting rights act last

year in the shelby county case and certainly the signature decisions i think of the roberts court which is striking down campaign finance regulations of many different times whether it was the rules on corporate contributions in the citizens united case or just the other day in the mccutcheon case where you had laws passed by by the congress overturned by the supreme court and stephen bryer who is not exactly a spare set after one of these immigration rulings it is not often in law that so few have quickly and done so much bye no i hasten to add that people are not robots and the those of us who predict the outcome of cases can be surprised and and this is this a leads me to point out one of the unfortunate aspects of working at cnn as i do

which is that they keep the tapes of the stuff you say on tv a math class i can tell you i can't tell you that i predicted the outcome of the obamacare case two years ago mazda recalled chief justice roberts for the one and only time in his career on the bench i joined the four more liberal members of the court in upholding the core of obamacare and i was surprised then i'm still surprised now to a certain extent but i was certainly are an aberrational ruling it's one mistake i think people may vote is yes certainly it is true that justice kennedy is the swing vote of today but as a result of that people sometimes refer to justice kennedy as a martyr and i don't think that's an accurate description i actually think justice kennedy is an extremist in many ways he just has somewhat eccentric enthusiasms aren't the day he votes with the conservatives

most of the time but there is certainly one area where he is really in many respects the most liberal member of the court and that is on the issue of gay rights and there have been three gay rights decisions in the entire history of the supreme court there's been the roemer case out of colorado there was lawrence v texas which i mentioned earlier and there was of course the the case where they struck down the defense of marriage act last year the windsor case all three of those decisions were written by anthony kennedy you could really point to no other area of law wall where a single justice has controlled the jurisprudence of the court more than justice kennedy and gay rights but i do think it is an operational changes in his view now one of the things that the supreme court justices know that shows that about

the most important thing that they can ever do as supreme court justices is to leave they know that obviously timing of their departure from the court is enormously significant because they give the chance to a president two op to shape the court noted ten years of supreme court justices are now really measured in decades of one or president's circle for four years and it is worth pausing to consider and the last three justices to leave the supreme court three more different human beings you will never encounter sandra day o'connor this tall outgoing charismatic former politician up from arizona david souter the shy reclusive bachelor ob from new hampshire john paul stevens this wildly anti trust lawyer from chicago such different personalities but so similar in one way they were all three moderate republicans who

left the court deeply alienated from the modern republican party and souter and stevens were so alienated that they gave their precious seats on the supreme court to a democratic president and our brock obama fill those seats with democratically oriented justices sonia sotomayor elena kagan and the court now reflects our politics with great risk with really great precision because you know there was a time when there was a true that a large moderate republican caucus in the united states bob dole certainly counting is that certainly towards the end of his tenure but weather was bob packwood or john heinzel robert stafford or john chafee or lowell weicker a good ear or arlen specter draws personally that this was a major part of american politics but their

goal from the united states and an end date palm palm moderate republicans in many respects dominated the supreme court whether it was john harlow this jar on the second in the nineteen fifties potter store in the sixties those palin the seventies sandra day o'connor in the eighties and beyond when they were an enormously important part but now all we have on the supreme court is democrats and republicans now you may ask what is the future look like in the best law school tradition i will answer that question with a question of who's the next president because that's the only question that matters when you're talking about the future of the supreme court if to pick a random a man of the year hillary clinton as the next president and we're going to have one kind of supreme court is ted cruz

is the next president kansas what's wrong with that if sam brownback is the next president be nice we're going to have a different kind of supreme court and i look forward to watching new orleans and how it all turns out with you and i look forward to hear your question you're listening to cnn legal analyst jeffrey toobin speaking at the university of kansas on april twenty fourth two thousand fourteen as part of a humanity of lecture series sponsored by the hall center for the humanities justice souter meyer size from that i mentioned empathy as one of the takes perhaps an important on the supreme court justice and justice ginsburg talked of all male court thinks having no understanding what a teenage girl production and they feed on the other hand it is

this concept of a judicial temperament no quick to them or tell us whether this is in opposition to corexit it what would that mean and how if you can make how this this may have been represented in some of the justices well if i can correct a little little bit one of the things you said that the issue of empathy it was actually president obama raised the issue of empathy not positively aryan she was asked about it what president obama wants when he was talking about the kind of justice he wanted to appoint to the court and he raised the issue of empathy and danced and and and he was criticized for that because you know people said you know it's not about empathy it's just about following the law you know i guess you need all these terms get get get thrown around in all of these justices are just human beings and

they they reflect their they they reflect in any ideological approach to law you know one of the things i often hear in forums like this some version of a question of what will likely have to be so political why can't they just do the law why does it have to be democrats and republicans what if you look at the kind of issues that the supreme court deals with does the constitution protect a woman's right to choose an abortion may university consider race in admissions these are not issues that are answered purely by the wall it depends on the approach the ideological philosophy you bring to the court justice scalia and justice ginsburg the differences between them it's not one smart and one's dumb or once corrupt in one's honest with the difference if they have different judicial philosophies and those are i'll never been obese adult because these are as much political questions as legal question so you can

label things empathy or you can you know a label that judicial restraint but what's clear when you look at these decisions is that they have an ideological contest and all we could pretend otherwise we can hope otherwise but that's just invariably going to be the case that's researcher and thank you so much for coming to laurence knight my questions around health care reform and the supreme court's decision to make the medicaid expansion voluntary and what specifically was their consideration then and it's a reflection now about this resulting gap created for the states like iran that decided not to expand medicaid or you have individuals who make too much money to qualify for medicaid and yet not enough to qualify for subsidies on the exchange and you know what's happened and those individuals were caught between what he in fairness to the supreme court's judgment carol

that you know their job is not to sort of decide what's the best way to give people health care their job is to decide does the wall congress pass comport with the constitution and seven justices not fights at seven justices said that the method of financing medicaid was courses to the states and so we have to leave it up to the states to decide whether to take it or not now i think it's worth remembering a historical precedent when it comes to this as the medicaid expansion and that's the birth of medicaid itself in nineteen sixty five when medicaid past it was voluntary for the states and only twenty six states initially signed up and it wasn't until nineteen eighty two that the last state arizona agreed to participate in the medicaid system and so i think the idea that it's not universally accepted yet i mean it's certainly bad for the people in oregon health insurance but it's

also consistent with house in a big changes have rolled out across america that it is sometimes state by state now you know ultimately what's happened with medicaid and as well as the medicaid expansion is that you're even for different for states that are ideologically and sympathetic to president obama to democrats these are states with big hospitals with enormous needs and you know this is a big part of free money out there that aren't states find it very hard to turn down so you have governors like jim breuer in arizona i would be accused of being a friend of president obama saying i'm taken this money and were uninsured people and i think over time ah but that's that that is very likely to happen i'll be in all the states but it's not happening yet and certainly governor brownback is making sure it's not happening here do you believe that justices kagan and semi or heaven

anyway fundamentally changed the court ideologically from justices stevens and souter no no i'm not not at all i think their voting records are pretty much identical to what stuart stevens would have been i so i guess i just i can even you know it and i i i can't pinpoint a hundred percent of the votes but certainly if you look at the hot button ideological issues stevens and souter and souter were certainly allied with ginsburg and brier as our customer engagement i can think of frankly a single case where that i can point to a difference that that that that that those substitutions of may not tell you one thing that are you know i do think it's it's it's reflection of america that you know we now have three giant women justices on the court and we could never were never going to have a situation where there

are nine men justices anymore just politically not tenable so that significant are you also the fact that we have a hispanic justice on them court for the first time is significant no supreme court appointments are really touchdowns in that the evolution of the politics of the country when i was in it was right before the civil war that the nation had its first catholic just this is that was a time you know we started to see a lot of immigration of catholics from europe right after the turn of the last century you had the first jewish justice on the court because again there was a lot of jewish immigration around nineteen hundred thurgood marshall in nineteen sixty seven at the peak of the civil rights movement the first african american in nineteen eighty one the first woman on the supreme court again you know reflecting the changes in the society and so it's no aka when sense that you we have the first hispanic justice now but in terms of the outcome of cases i don't think it's make much difference

greetings positive and i have two questions for you are the first is a given your expertise on the judicial branch and your knowledge of the system of checks and balances do you have any at remarks about kansas governor sam brownback says recent efforts to weaken the divide between the executive branch and the digital judicial branch in kansas by disallowing kansas lawyers for nominating finalist for the part of appeals vacancies and second day there are these recent revelations of the nsa is unprecedented spying on american citizens which raised many questions about the livelihood of the fourth amendment and spiders many people within the nsa because they claim that it protects our security i'm at this moment however americans are scrambling to update your passwords because the recently revealed software vulnerability known as the heart bleed bug bloomberg news has reported that the nsa had known about it for years and second as

they spend at least twenty five million dollars in two thousand thirty to buy additional software vulnerabilities known as zero day exploits from hackers given that we now know that the nsa by hiding zero day exports from the public is in fact attacking our cybersecurity and its furthermore opening all this up to additional attacks from criminals and foreign powers are you willing to walk back into your opinion of her attacks on journalists who report on the nsa or your claim that they should be jailed are considered terrorists for the record my guess is you have city so our clothes are those are two very paranoid i you know i i do not want to pretend that i'm an expert on the big fight that's going on between governor regarding the judiciary in kansas i know of what the broader with the broader context for this is that all the key the legal establishment which is sort of nominally

democratic but also has included a lot of what used to be called mainstream country club republicans have always been in favor of what's known as a merit selection which is involving lawyers in the process and i'll the more conservative forces like what governor brownback tea party generally you know broadly speaking are in favor of a more populist approach of of elections and that that's the tension that's going on there but i don't i don't want to you know to express my views kazakhstan or not know enough to talk about it has for us for the nsa and end and there's just no no i was i i have been very very critical love of love edward snowden i think he broke the law i think he he you've betrayed his oath i think he betrayed his country i think he harmed the strait his colleagues and and i have no problem with him are being being prosecuted i never said that i thought that journalists should be prosecuted under in anywhere and that's that's the important distinction there are not i am

not a fan of some of the journalists who auden who who you know were snow this conduit but that doesn't mean i think they should be prosecuted oh i you know i look it is true that all this has started an important debate about the nsa i think your facts are a little off about whether the nsa actually was involved in the heart bleed but i don't think that's been established at all i think the nsa does very important work i think they are they today protect us to a considerable degree know whether a mitigated tragic should be cut back as probably is a good subject for further the discussion that we're having but i am not sympathetic to snowden student activists and i kind of wanted my question of six i had in mind whenever he was sort of at a less often use either white and sometimes it's

a very principle what are some justices you know kind of do one at a disability well you know i actually think that's that's more myth than reality the justices changed a lot and that in the end a related meth is that our presidents are surprised by how justices turn out that that that really is based on the eisenhower presidency where it is true that earl warren and william brennan surprise president eisenhower but you know what i think we can say about the eisenhower presidency it was a long time ago and if you look at the president says there you know you could argue that maybe david souter turned out to be a little more liberal than george herbert walker bush bottle or are a blackened turned out to be a little more liberal but you know by and large certainly if you look at the nine justice he's currently on the court no

surprise is no big changes you know people change over time in the search for thirty years you know you may see things differently but by a large what you see is what you get with these justices think yes and it's a very naive question how do they decide who writes the decision that's a yeah that's a very good question of the way it works is the chief justice assigns all the opinions in which he's in the majority ob so that that's one of the most important powers of the chief justice's he gets to assign who writes the opinion that if the chief justice is in december the senior associate justice in the majority gets to write the opinions and that's likely to be anthony kennedy if you look at the split ideological split of the justices and kennedy as a sign and of course what often comes is that these justices assign the most important opinions to themselves and that's not like a criticism or a bad thing at all in

that but that not that often that often gets on my person such a kind of a follow up to that the decision this week regarding michigan's ban reporting affirmative action and was sort of an interesting plurality opinion in which the justices gave very difference that rationalization for their opinions i was wondering how much you thought that reflected their separate ideologies and were adapted in in the reader scheme race related decisions and surgically talk a little bit about it and the other question would be who do you think depending on whether democrat or republican is elected president giving the next justices will be oh i'm so glad someone's market will get to that they had a big finish ready and on the idea that it was a fascinating split your right to basically what you had was chief justice roberts justice alito tom and

dan kennedy the three of them saying you know this is this is permissible under our precedents you had stephen bryer agreeing with them which was sort of the big surprise as he was the liberal on the more conservative side saying effectively what i said affirmative action is permissible but not reports omission you know justice scalia and justice thomas saying although we just get rid of affirmative action altogether and this is an example i think of justice scalia wrote that opinion the justice thomas has really been in the vanguard of these conservative opinions educated some of which have been adopted by the full court and then you had justice so the maya are joined by justice ginsburg say this law is unconstitutional it was just it's a form of discrimination against minorities in michigan justice kagan was recused from the case so it was really a wonderful window into the different approaches of

the justices and i think you know a good set at a good is a good sense of where they are now who was the next justice kennedy well if it's a democrat issue president obama gets an appointment which i don't think it will be really well i've spoken any reason to leave in the next couple years or you know if it's just like a random than hillary clinton cause the arm i think the next justice will be on sri srinivasan anybody know we're not running for anything you want in the end i actually i'd written this and the artist isn't just why lawrence tabak says version of lawrence i know what that's like no i was because i was i just talked about the lawrence v texas case that's my defense lawrence kansas known as as i'm sure many of you know archery i should've austin gregory and lawrence

you went to high school here he was as everyone says first thing he says he played basketball with danny manning and high school are tragically did not go to k you have to go to stanford but obviously he was recently confirmed to the dc circuit ninety six to nothing very highly regarded very highly regarded by president obama everybody in his office is very new and the bench but he's not age matters a lot and he's just in his mid forties so he would he would presumably served for a very long time but i really do think if a democrat is elected president he would he would likely get the next enough republican gets numb he gets elected i think the likely nominee is as a fellow named brett cavanaugh who serves on the dc circuit very conservative judge he was a man i knew him most because as a young prosecutor he was the principal author of the starr report especially the dirty parts and so that's i think i think i think

that's a problem you're a brave man to predict who will be moments of the supreme court you know the great thing about working on cable news is no accountability has been i've got an easier question ok what do you expect or does is the generals can expect that justice ginsburg will resign before obama's term is out and secondarily about stephen bryer is well you know the thing about the scuttlebutt is you know is always right and the answer that question is all i don't think either of them is gonna leave you know way ruth bader ginsburg is really one of the extraordinary people american history she is eighty one years old she has has she is has it said recently every

disease known to humanity changes like this tall she weighs about eighty pounds and she is as tough as any nfl linebacker that you can have and this is really an extraordinary person an armed she's the senior of the four liberals on the court and which means she gets to assign the major dissenting opinion she's you know high up in security in the court she is as far as anyone can tell certainly as far as i can tell at the top of her game very competent to do the work and i think she feels like she's not going anywhere and you know the democrats and you know wanted can keep control the supreme court a lot of people living presidents it's not our job to maintain that control and i don't think he's going anywhere and stephen bryer you know much the same way so i think we you know barring any health problem that that none of which you know one of the weird things about talking to supreme court justices and social pleasantries take a different context you say you know how are you know i mean

like how are you see your blood work but anyways as i can tell they're finally thank you all survived few discourage legal analyst jeffrey toobin speaking at the university of kansas april twenty fourth two thousand fourteen cuban is a senior legal analyst for cnn he also writes about legal affairs for the new yorker and has written six books including the nine inside the secret world of the supreme court and the oath the obama white house and the supreme court toobin's book a k u as part of the humanities lecture series sponsored by kay use hall center for the humanities the whole cider as announced their lineup of speakers for the two thousand fourteen two thousand fifteen school year you can find out more at their website call center di che you dot edu i'm kate mcintyre kbr present is a production of kansas public

radio at the university of kansas