On the Court and Off the Shelf

MANCHESTER - For a co-equal branch of the government, the Supreme Court often lurks somewhat in the shadows of the President and Congress. The nine justices emerge in their black robes to adjudicate on issues which occasionally - as in the case of the Affordable Care Act earlier this year - vault them onto the front pages.

But for the most part, the justices, once confirmed by the U.S. Senate, enjoy lifetime tenures to ensure their independence from the political passions of the moment, and seldom embrace the limelight. Some carve out higher profile roles than others, but for the most part they prefer to let their written opinions, in support of a majority view or in dissent, speak for themselves.

To shed a little more light on the inner workings of the Court, Jeffrey Toobin - a staff writer at the New Yorker magazine and a senior legal analyst with CNN - will engage in a live interview with Joe Donahue of WAMC Radio on Saturday, Nov. 17. The discussion, another in the "Off the Shelf: Authors in Conversation" series - a partnership between the Northshire Bookstore and WAMC Northeastern Public Radio that began last March with a sold-out event with MSNBC personality Rachel Maddow - will be taped for later broadcast on WAMC. It will be held at the Maple Street School and start at 7 p.m.

Toobin and Donahue's discussion will center around Toobin's recently published book, "The Oath," which explores the relationship and ideological differences between the Court, led by its current Chief Justice, John G. Roberts Jr., and the Obama administration. The book is largely a sequel to "The Nine," a previous work by Toobin published in 2007, Toobin said in a telephone interview earlier this week.

"The theme of the book is the ideological conflict at the heart of the Court, and what we've seen since the 1980s," he said. "There has been a conservative agenda for change at the court, whether it's about abortion, or civil rights or free speech. Conservatives have a clear agenda to change the law and the Democrats, especially President Obama, have been very cautious and basically have embraced the status quo on those subjects - that tension between the two of them and between the movements they represent is really the heart of the book."

At present the court is narrowly divided between its left and right wings, often deciding cases by 5-4 votes. With four of the justices - Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy and Stephen Breyer - all in their 70s, a re-elected President Barack Obama has the possibility of re-stamping the court in a more liberal image, should two or more of them decide to retire. The ideological balance would only be altered however, if Scalia and Kennedy were to step down, since both Breyer and Ginsburg form part of the Court's liberal wing.

The recent election therefore, contains some "interesting possibilities" for the future of the court, Toobin said.

"The implications are enormous," he said, adding he was planning to discuss the election's possible impact on the Court during Saturday's event with Donahue.

Obama and Roberts got off to a rocky start when the Chief Justice lost his train of thought while administering the oath of office to Obama during his inauguration ceremonies in 2009. The oath had to be re-administered afterwards, and both Roberts, who had repeatedly practiced delivering the oath so he could recite it from memory, and Obama, were left unhappy with the outcome. They then went on to find themselves at loggerheads in the coming year, especially over the controversial Citizens United case, which opened the floodgates to unlimited campaign spending by interest groups and "Super PACs." Obama was so upset by that case that he took the unusual step of calling out the justices during his next State of the Union address, which produced some memorable theater when one of the justices, Samuel Alito, was caught on camera visibly disagreeing with the President.

It's not a case of personal animosity between Roberts and Obama, but rather competing visions of the Constitution and its interpretation that form the core of the conflict, Toobin said. And here, we find the ostensibly conservative Roberts playing more of a change agent role, actively helping to advance a conservative agenda that seeks expansion of executive power, ending racial preferences, deregulating elections and political campaigns and eventually reversing Roe vs. Wade, the landmark decision in 1973 which found abortion to be constitutionally protected. Meanwhile, Obama and his fellow Democrats have traded places with Roberts and the Republicans and have adopted a more "conservative" or passive agenda when it comes to using the courts as a vehicle for social and political change, Toobin feels.

Many readers may find the peeks "behind the scenes" at the Court of interest, as Toobin reveals some of the institution's internal dynamics. "I talk about the justices as human beings who have flaws and virtues like the rest of us," he said.

Readers who follow the Court will also be intrigued by some of the profiles he draws about the individual justices. For instance, Anthony Kennedy is frequently cast in the role of "swing voter," often providing the crucial and deciding vote in close cases. But despite his occasional support for positions favored by the Court's liberal wing, Toobin is not sold on the popular perception of Kennedy as some kind of judicial moderate, he said. "He's not a moderate; he often has rather extreme views," he said. At the same time, in some areas such as gay rights and the death penalty, Kennedy has sided with the liberals, he noted.

And remember that judicial tsunami that transfixed Court watchers and everyone else who had the slightest interest in health care reform earlier this year? The Supreme Court, in an another memorable 5-4 vote - this time with Chief Justice Roberts playing the surprise swing voter role - gave constitutional protection to the signature legislative accomplishment of Obama's first term, the Affordable Care Act, which sought to expand healthcare and health insurance coverage for those unable (or unwilling) to obtain it.

Toobin said he would be discussing this case on Saturday night as well.

There will be more "Off the Shelf' conversations to come, said Mary Allen, the bookstore''s events and marketing manager. Another one is in the works for next March that will feature novelist Jodi Picoult, she said.

These sorts of discussions provide a new forum for readers to interact with writers, she said.

"I think it's an interesting way for the audience to engage and connect with the subject matter," she said.

The program with Toobin is expected to run somewhere between 60-90 minutes. Tickets are available at the Northshire Bookstore and will cost $8 for general admission, or $31, which includes the purchase of the book.

Other books by Toobin, in addition to "The Nine," include "Too Close to Call," and "A Vast Conspiracy."

For more information about Toobin and Donoghue's "Off the Shelf" discussion, call the Northshire Bookstore at 802-362-2200, or visit northshire.com.


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