April 9, 2014 – The two most important facts to know about the current U.S. Supreme Court are the numbers five and four, legal analyst Jeffrey Toobin said at the annual Ruby Kless Sondock Lecture in Legal Ethics held by the University of Houston Law Center on Tuesday.
That partisan divide with Republicans in the majority, tells you all you need to know about what the outcome of big cases will be, said Toobin, attorney, author, and legal analyst for CNN and the New Yorker. The nature of the court has changed dramatically during the last 50 years, he said, as moderate Republicans gave way to aggressive conservatism.
“A contentious relationship is more the rule than the exception,” Toobin said of the high court, although he noted the Roberts court seems to get along better than most.
His talk at the downtown Coronado Club traced the history of the court from the 1960s court in which case after case, including an end to laws banning interracial marriages, was decided by a liberal majority. The Republicans of the ‘70s were much more moderate than today’s with rulings on the Nixon tapes, busing, Pentagon Papers, (temporarily) ending the death penalty, and the most controversial Roe v. Wade in which three of four Nixon appointees voted in favor.
The court changed under President Ronald Reagan, Toobin said, although he did nominate the first woman to the bench, Sandra Day O’Connor, who was not a social conservative. Reagan also nominated Robert Bork who was shot down by the Senate, in part, for perceived reactionary views on civil and women’s rights. The president then nominated the more moderate Anthony Kennedy who was unanimously approved by the Senate.
The great dividing line, on the court and in the country, Toobin said, was the Bush v. Gore decision on the disputed 2000 Florida election recount. He wrote a book, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, about the case and conceded it has become something of an obsession despite friends and others telling him to “let it go.” He once met Al Gore at a social gathering and joked, “I must be the biggest Bush-Gore junkie in the world,” to which the former vice-president and losing presidential candidate replied, “You might be second.”
The moderate Bush court swung to an aggressive conservatism after the departure of O’Connor who resigned in 2006 to care for her husband suffering from Alzheimer ’s disease. After the death of Chief Justice William Rehnquist, Bush appointed John Roberts as chief justice and Samuel Alito to replace O’Connor. Toobin said the court traditionally exercise judicial restraint, deferring to the legislative branch to make law, but this court struck down various gun control laws and campaign finance laws in the Citizens United case. “They are dramatically changing what it means to be a conservative on the court,” Toobin said.
“Where is the court headed?” Toobin asked. “That depends on who will be the next president,” he answered.
The annual lecture honors former Judge Ruby Kless Sondock, a 1962 graduate of the University of Houston law school, who was the first female state district judge in Harris County and the first woman on the Texas Supreme Court.