Toobin's latest on the Supreme Court

Jeffrey Toobin says (my emphases and comments added):

Chief Justice John G. Roberts Jr. is fond of pointing out the original reason that judges came to wear black robes. It's to make them look alike, to minimize the differences between the individuals who occupy the role and to suggest that the law will be applied even-handedly, no matter who happens to be dressed in black. Well, that may be the theory, but the events of the last few weeks show that the Supreme Court is riven by the same partisan divisions as the rest of Washington -- and it's likely to get even more heated sooner rather than later.

The latest round started January 21, when a bitterly divided court issued its decision in the Citizens United case. The 5-4 ruling decreed that corporations enjoy the same rights as individuals to free speech under the First Amendment, and it gave corporations (and labor unions) the right to spend unlimited funds on political advertising right up until Election Day.

The political effect of, if not motivation for, the decision was clear: Citizens United looks to be a big win for Republicans, who are the likely beneficiaries of the newly lubricated corporate largesse. [No, they aren't. It remains to be seen which party will actually benefit more, but the likely beneficiaries are Democrats.]

President Obama struck back just six days later, during his State of the Union address, which he used to make an unusually pointed attack on the court's decision. [He used the court's decision as a piñata to distract attention from the humiliation dealt him by bay state voters just eight days sooner.] With a majority of the court seated right in front of him, Obama said the ruling opened the door even to foreign companies meddling in the American political system. [Which was a lie.]

With the cameras rolling, Justice Samuel A. Alito Jr. grimaced and [inaudibly; he wasn't heckling as Toobin implies] muttered "not true" in response to the president. [I'm not party to Justice Alito's thinking, but I'm going to go out on a limb and guess that was probably because what the President said was not true.] In fact, Citizens United is intentionally ambiguous on its effect on foreign corporations -- so it's not clear whether Obama or Alito is right [It's perfectly clear who is right, and it isn't the President. Nor is Toobin accurate in saying that Citizens United is "intentionally ambiguous"; it expressly declines to tackle the issue, which wasn't implicated in the case. I excerpted the relevant portion of the opinion here. Toobin is correct that Citizens United is "ambiguous" about foreign corporations only to the same extent that it is "ambiguous" about Sarah Michelle Gellar's favorite toenail polish, to wit, it holds and purports to hold nothing about either.] -- but the open confrontation between the two men suggests the intensity of their split. (That then-Sen. Obama voted against Alito's confirmation suggests the origin of the animosity.) [The President's choice to lie on national television about a decision Alito voted for, right in front of him, might have honked him off a little, too.]

Last week, Roberts himself weighed in, denouncing the State of the Union as a "political pep rally" and weighing a future boycott of the proceedings by the justices. [Roberts was asked a question. He answered it in his usual mild-mannered good humor. You can watch the whole exchange on C-SPAN, and its tenor is not even remotely close to the kind of image summoned by Toobin's deliberately misleading choice of verb.]

In fact, several justices (including Roberts' predecessor, William H. Rehnquist) have avoided the State of the Union for years, for just the reason Roberts suggested: that it's too bound up in contemporary politics. But the fact that Roberts only came to object now -- and not during the presidency of George W. Bush, who appointed him -- suggests that it's Democrats, not noisy democracy, that's really bothering the chief justice. [Did President Bush ever stand in front of the court on live national television and lie about a recent decision it had made? No? Then it's not really comparable.]

There's no doubt what's bothering Ginni Thomas, the wife of Justice Clarence Thomas. A veteran Republican activist, she just announced plans to start an online Tea Party advocacy group, which may be funded, in part, by the corporate donations newly freed up by the Citizens United decision. [This random line—totally disconnected to the material on either side—seems thrown in merely to insinuate a whiff of impropriety. See Volokh's comments here.]

All of this controversy may come to a head soon, because Justice John Paul Stevens, the court's senior associate justice and the leader of its liberal wing, is likely to resign this spring. In an interview for The New Yorker, Stevens told me that he will probably decide in less than a month whether he will retire. With his 90th birthday looming in April, Stevens gave me every indication that he will leave the court, which will set up a confirmation battle over Obama's appointment of his successor. [A battle in which Obama's enablers and partisans will predictably and vigorously denounce any Republican who does what Obama did in the two nominations he participated in.]

Appointed by President Gerald R. Ford in 1975, Stevens represented a moderate Republican tradition that has had deep roots on the court and in broader American life. But just as Stevens represents the last of his political breed on the court, so, too, have moderates largely disappeared from the contemporary GOP as a whole.

In all likelihood, Obama will name a Democrat to replace him. (Solicitor General Elena Kagan appears to be the leading candidate.) [That's true, but Judge Diane Wood ought to be.] So without Stevens, the court will look like the Capitol, across First Street, from its own marble palace; both will be places where Democrats and Republicans fight.

In a way, all of this controversy at the court provides a bracing civics lesson. The justices deal with the most volatile issues in American life, from abortion to the war on terror. It is folly to pretend that the court could figure out a way to deal with these issues in an objective or nonpolitical way. [No it isn't. You simply have to ask the right questions. The problems almost invariably stem from the insistence of legal liberals on having the court answer the wrong questions. There is no non-political way of answering the question of whether abortion should be legal, for instance, but that isn't the question the court should be asking, and there are certainly objective ways to answer the question it should be answering: whether the Constitution forbids the political branches from answering that quintessentially political question.] The justices reach answers to the questions before them based on their judicial philosophies, which are nearly indistinguishable from their political views. [On one side of the court, the side that Justice Stevens has been propping up, maybe so.] This is not new. The divisions in the court have always reflected the political divisions in the country, but never more so than today.

I get terribly grumpy reading this kind of stuff. Toobin is a much more appealing talker than he is a writer.