Jeffrey Toobin on judicial genius.
Question: Is the bench too politicized?
Jeffrey Toobin: Yeah, I don’t think that’s true. I think the Supreme Court has a lot of independent authority. Just take this term. You know, it may be that the City Council of Chicago, of New York, of LA wants to ban handguns in their city. Well, as of this year, too bad, Supreme Court says you can’t do it. You know, that… that is real power. One of my favorite quotes about the Supreme Court comes from Robert Jackson who said, “We are not…” Justice Robert Jackson who said, “We are not final because we are infallible. We are infallible because we are final.” Somebody has to have the last word, and in our country, it’s the Supreme Court.
Question: What is your judicial philosophy?
Jeffrey Toobin: Gosh, well, that’s what we call a farfetched hypothetical in the law school world. Well, I don’t think I have a judicial philosophy to speak of. I think, I… I guess, you know, in my book, in my analysis, I am somewhat cynical, realistic, whatever you want to call it, about the political nature of judging when it comes to the Constitution. When you are addressing questions like does the Constitution protect a woman’s right to choose abortion? Does the Constitution allow a university to consider race in admissions? I don’t think those questions have right or wrong answers when it comes to interpreting the Constitution. I think there are reasonable views on both sides as a legal matter. What I think is that they’re political. That it depends on what you think in terms of your political philosophy. I think political philosophy means more than legal competence or expertise in deciding the big constitutional issues.
Question: Who the great minds in American justice today?
Jeffrey Toobin: Minds… Well, I mean, I think there are… I think there are terrific thinkers about the Court. I like reading Cass Sunstein. I like reading Larry Tribe. I like reading Richard Posner. I like reading Ronald Dworkin. But this is not a moment where there are a lot of judges out there who are legal philosophers in the way that there have been in the past. There are people with distinctive philosophies that they apply in interesting and important ways. But, I don’t think there are a lot of geniuses in the way that they were… they were when there was Holmes and Learned Hand walking the earth.