By Sam Baker - 09/18/12 09:25 AM EDT
Jeffrey Toobin's latest book portrays Supreme Court Justice Antonin Scalia as increasingly cranky and partisan — and infuriated with Chief Justice John Roberts over the court's recent decisions on healthcare and immigration.
Toobin, who writes for The New Yorker and also covers the court for CNN, credits Scalia for a sea change in how both sides of the political spectrum think about the law. But he says the justice's bombast has become off-putting to more even-tempered colleagues.
Scalia 'furious' over healthcare and immigration
The book confirms previous reports that Roberts changed his vote in the landmark case over President Obama's healthcare law after initially siding with the conservative justices. But Toobin reports — as others have implied — that what pushed Roberts away was the conservative justices' insistence on striking down the entire health law.
"Scalia's view of the justices as gladiators against the president unnerved Roberts," Toobin writes.
The book describes Scalia as "furious" and "enraged" at Roberts — contradicting Scalia's public statements brushing aside any tension.
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Toobin's book says Scalia has become fixated on politics — and particularly on Obama — at the expense of legal scholarship, saying frustration over the healthcare ruling helped fuel his acerbic statement dissenting from the court's decision on Arizona's immigration law.
"Scalia was indeed unhappy with the immigration decision, but the splenetic excess of his Arizona opinion owed far more to his failure (as yet unknown to the public) in the healthcare case," the book says.
White House didn't consider State of the Union fallout
criticized President Obama for disagreeing with the Citizens United
ruling in his 2010 State of the Union address. But no one in the White
House had even considered the risk of publicly disagreeing with the court.
"During the discussions in [Rahm] Emanuel's office, as well as the president's own prep sessions, the propriety of challenging the Supreme Court had never come up," Toobin writes. "The group was so focused on pushing Obama's agenda that the issue of the justices' presence seems not to have occurred to anyone. The administration's anger about Citizens United was such that (even though no one said this specifically) the Obama team simply regarded the Supreme Court majority as another group of Republicans, deserving no greater deference than GOP senators or congressmen."
Hard right turn
Much like the Republican Party, the conservative wing of the Supreme Court has gotten staunchly more conservative over the past several years, Toobin notes. He says the old guard of recent Republican justices has been deeply upset by the Roberts court.
Toobin notes the long, stammering dissent John Paul Stevens wrote and then read for the Citizens United campaign-finance case, which he said "captured everything that offended Stevens most about the Roberts court."
It had the same effect for Justice David Souter.
"He abhorred the views of Roberts and Alito. Souter didn't like what the Republican Party — his party — was doing to the court, or to the country," Toobin writes.
Former Justice Sandra Day O'Connor "had projected onto Roberts her idea of what a chief justice, and a Republica, should be," Toobin writes, but her reservations grew as she watched the court overturn core pieces of her legacy. Toobin also recounts O'Connor talking to Souter about her decision to leave the court.
" 'What makes this harder,' O'Connor told Souter, 'is that it's my party that's destroying the country.' "
Roberts playing 'long game'
Toobin says the healthcare decision — which actually gave conservatives the legal footing they wanted — will only burnish Roberts's standing as an effective crusader for conservative legal causes.
"Roberts did refrain from embracing the unprecedented extremism of his conservative colleagues in the healthcare case … But it was folly to pretend that Roberts had discovered his inner moderate," Toobin says. "He had not changed, except that he was more powerful than ever."
The healthcare ruling means Democrats are unlikely to campaign aggressively against the court, Toobin writes, and Roberts will continue to advance conservative orthodoxy in important cases on affirmative action and voting rights.
The book portrays Roberts as a brilliant legal mind but no more above politics than Obama.
"It was John Roberts who was determined to use his position as chief justice as an apostle of change," Toobin writes. "He was the one who wanted to usher in a new understanding of the Constitution, with dramatic implications for both the law and the larger society. And it was Barack ObamaBarack ObamaObama reads round two of ‘mean tweets’ on Kimmel Trump links WikiLeaks to media ‘voter suppression’ What will be in Obama’s Presidential Library MORE who was determined to hold on to an older version of the meaning of the Constitution."
A joint effort
In the rightward turn the court has taken under Roberts, Toobin sees each conservative justice playing his own important role.
Although Toobin says Scalia has descended from scholar to "right-wing crank," he notes that Scalia came to the court with a unified theory of law — originalism — and has helped recenter important cases and more general discussions around what the Founding Fathers might have intended.
Justice Clarence Thomas, known primarily for his silence during oral arguments, is the court's "pathbreaker," always pushing for more, driving the court to the right in much the same way the Tea Party has pushed Republicans, Toobin says.
Samuel Alito, he argues, is the court's best questioner.
"It was easy to tell which way Alito was leaning, because his questions were so hard to answer for the lawyer he was targeting," the book says. "Alito had a radar for weak points in a presentation."
Kennedy, the court's traditional swing vote, has a well-documented flair for the dramatic, especially in his writing. He is also seen as an absolutist on free speech — multiple justices told Toobin that Kennedy has "a thing" for the First Amendment.