How High Court Could Change If Stevens Retires

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How High Court Could Change If Stevens Retires

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

The Supreme Court appears to be on the verge of change. Justice John
Paul Stevens is expected to retire soon. He turns 90 on April 20th and
is the fourth-longest serving justice in American history. Although he
was appointed by a Republican president, Gerald Ford, in 1975, since
1994, he's been what Walter Dellinger described as the chief justice of
the liberal wing of the Supreme Court.

My guest, Jeffrey Toobin, profiles Justice Stevens in the current
edition of The New Yorker and writes about how his retirement may change
the dynamics in the Supreme Court. Toobin is a staff writer for The New
Yorker, covering legal affairs, and is a senior analyst for CNN. His
books include the bestseller "The Nine: Inside the Secret World of the
Supreme Court."

Jeffrey Toobin, welcome back to FRESH AIR. What did Justice Stevens say
to you about when he thinks he might retire?

Mr. JEFFREY TOOBIN (Staff Writer, The New Yorker; Author, "The Nine:
Inside the Secret World of the Supreme Court"): Well, this was obviously
a subject that I was very interested in, given his age and given the
political situation. So I tried to ask him as specifically as possible
about this.

Last fall, he announced that he’d only hired one law clerk, which
suggested to a lot of people that instead of hiring the customary four,
he was really moving towards retirement. So I asked him: are you going
to retire at the end of this term, which would be in June of 2010? And
he said he hadn't completely made up his mind. He said his law clerks
had agreed to serve longer if he wanted them to, but it was certainly my
impression that he is leaning towards retiring very soon.

GROSS: Does he want to make sure he retires while Obama is president so
that he could be replaced by a liberal or at least a centrist?

Mr. TOOBIN: I think the answer to that pretty clearly is yes. He didn’t
say that directly, but he definitely spoke of his admiration for Obama.
They are fellow Chicagoans, something Justice Stevens takes very
seriously. And if you look at Justice Stevens' place in the court and
how he votes, even though he was appointed by Gerald Ford in 1975, he is
very much at the center or the head of the progressive wing in the
Supreme Court. So it is very evident to him that Obama would appoint
someone who will vote similarly, and that's important to him.

GROSS: You say that Justice Stevens was appointed to the court before
the Reagan years. So he was the last confirmation before Supreme Court
confirmations became battlegrounds for culture wars. And at first, he
was in the ideological center of the court. How did he change, or do you
think it's the court that changed around him?

Mr. TOOBIN: Well, that's really the great question about Justice Stevens
because he was a Republican appointee, and he did dwell in the center of
the court for many years. And now, very clearly, he is on the left.

I asked Justice Stevens that question: have you changed or the court
changed? And his answer is very clear: the court has changed. This is a
much more conservative court. The moderate Republicans with whom he
served – Harry Blackmun, Lewis Powell, David Souter – they're all gone,
and the four conservatives on the court are much more conservative than
where the center used to be, that is Antonin Scalia, John Roberts,
Samuel Alito, Clarence Thomas. So his answer is the court has changed,
and there's a lot of truth to that.

There is also some truth, particularly on some issues like affirmative
action, like the death penalty, that Stevens has changed, but I think
he's more right than wrong that the court has changed, not him.

GROSS: Stevens is the court's senior justice, and since 1994, he's been
the senior associate justice, which means he's responsible for assigning
opinions when the chief justice is not in the majority. So what is the
importance of that power, being able to assign who writes the opinion
when the liberals are in the majority?

Mr. TOOBIN: That's always an important position, senior associate
justice, but for these past 16 years, it's been especially important
because the chief justices during that period – William Rehnquist, now
John Roberts – have been ideologically opposed to Stevens.

So he has really been in the majority a lot when the chief justice is
not in the majority. So he's had the opportunity to assign enormous
numbers of opinions, and he is responsible in those cases for trying to
build a majority. And for many of those years, there were justices like
David Souter, like Sandra Day O'Connor, sometimes like Anthony Kennedy,
who were getable.

So he has been responsible for building coalitions, and in many cases,
though less so frequently, he has built those coalitions, and he's been
very successful, I think, during those 16 years.

GROSS: When you say – you give an example about when he tried to sway
Justice Kennedy to support the liberal side in Lawrence v. Texas, and
this was the gay rights case that invalidated bans on consensual sex
between adults of the same gender, that he basically – tell me if I get
this wrong – that he told Justice Kennedy that if he voted for the gay
rights interpretation of the case that Kennedy would have the – Kennedy
would be given the privilege of writing the majority opinion. Do I have
that right?

Mr. TOOBIN: Yes, you do. And that's a very important thing, and in
Supreme Court history, as Walter Dellinger, the former solicitor general
pointed out in an interview with me, you know, we often put too much
emphasis on who wrote the opinion and not enough on who assigned the
opinion because that can be very important.

Oftentimes, these coalitions are very fragile. So it is the assigning
justice's job to assign the opinion to the justice who you might lose if
someone else wrote it. And by giving Lawrence v. Texas to Kennedy,
Stevens held on to his vote and preserved this enormous victory for gay
rights, even though it's Kennedy who gets the glory, not Stevens,
usually.

GROSS: Call me naïve or uneducated, but I had no idea that that kind of
politicking was done on the court - vote for our side, and you can write
the decision. It sounds more like Congress to me than the Supreme Court.

Mr. TOOBIN: Well, if there's anything that we've seen in the last month,
in the last year, it's that the Supreme Court is a lot more like
Congress than you think. This is a deeply politically divided court.
That is not a, I think, unethical example of Supreme Court horse
trading. This is something that's gone on throughout the history of the
court. There's nothing untoward about making that kind of deal. But
don't kid yourself, these justices are very serious about their
politics, judicial and otherwise, and they like to win. And so, if they
can negotiate with each other in good faith, as they do all the time,
they're going to do it.

GROSS: If you're just joining us, my guest is Jeffrey Toobin, and he
profiles Justice Stevens in the new edition of The New Yorker. He's
also, among other things, the author of the bestseller "The Nine: Inside
the Secret World of the Supreme Court."

So you describe Justice Stevens as the undisputed leader of the
resistance against the conservatives on the court, and you quote Walter
Dellinger, describing him as the chief justice of the liberal Supreme
Court. So in that capacity, what are some of the other ways he's tried
to reach majority opinions for his point of view, for the more liberal
point of view?

Mr. TOOBIN: Well, since Sandra Day O'Connor stepped down in 2005, the
court has been more directly and obviously polarized than it's been
almost any time in its history. You have four very conservative
justices: Alito, Scalia, Thomas and Roberts. You have four pretty
liberal justices: Stevens, Ginsburg, Breyer and Souter, now Sotomayor.

Winning in the Supreme Court now is about getting Justice Kennedy's
vote. He has a mercurial, sometimes hard to predict, view of the law,
but it's all about getting Justice Kennedy's vote. And Stevens has been
very artful in persuading Justice Kennedy to join his side in some
cases. He hasn't always won, in fact he's lost a lot with Kennedy, but
it's all about getting Kennedy's vote.

GROSS: When you say artful, give us an example.

Mr. TOOBIN: Well, the big power he has in preserving and trying to get
someone's vote is the assigning power, assigning opinions. So, in
Lawrence v. Texas, the famous gay rights case, or more recently in the
Boumediene case, which was the last of the Guantanamo detainee rights
cases under the Bush administration, Stevens gave Kennedy the right to
write the opinion in return for his vote. That's the power that he has,
and he's used it rather skillfully.

GROSS: You know what I find particularly odd about that, it means the
person writing the opinion is the person, in a way, who's least
convinced about the point of view. He's the person who had to be swayed
and was on the fence, as opposed to the people who have believed so
strongly from the start in the decision.

Mr. TOOBIN: Well, in that respect, it's sort of like Congress. I mean,
who are we arguing about now in the health care vote? It's the blue
dogs, the more conservative Democrats who are somewhat committed to the
health care plan but not as much. They are going to hold all the power.

Likewise in the Supreme Court. It's the people in the center, Justice
Kennedy. Before him, Justice O'Connor. They are the ones who wield so
much power, even though they are least committed to the votes that they
sometimes cast.

GROSS: So do you think when Justice Stevens leaves that it will be more
difficult for the liberals on the Supreme Court to get majority
opinions, to sway Justice Kennedy?

Mr. TOOBIN: I do. I think it will mean some at least short-term hard
times for liberals because Justice Stevens and Justice Kennedy have
served together for decades. There was a real connection there.
Obviously, they didn't vote together all the time, but I think in the
absence of that relationship, it will be harder for liberals to get
Kennedy's vote.

It won't always be the case, and I don't want to overstate the
importance of this lobbying. The fact is, these justices are all strong-
willed individuals. They vote the way they're going to vote because
that's what they believe is right, but I do think the Justice Kennedy
vote will be harder for the liberals to get in Stevens' absence.

GROSS: How would you compare the conservative approach to trying to sway
Justice Kennedy to their side to the liberal approach to trying to sway
him?

Mr. TOOBIN: I think it's very similar. The great carrot that Chief
Justice Roberts has is the same one that Stevens has, which is the
opportunity to assign the majority opinion. That is something Justice
Kennedy is very interested in getting, and in, for example, the Citizens
United case, the very controversial case decided earlier this year,
Roberts assigned Kennedy to write it, Kennedy voted with Roberts.

GROSS: My guest is Jeffrey Toobin. He profiles Justice John Paul Stevens
in the new edition of The New Yorker, where Toobin is a staff writer.
He's also a senior analyst for CNN. We'll talk more after a break. This
is FRESH AIR.

(Soundbite of music)

GROSS: Let's get back to my interview with Jeffrey Toobin. His recent
bestseller about the Supreme Court is called "The Nine: Inside the
Secret World of the Supreme Court." He profiles Justice John Paul
Stevens in the new edition of the New Yorker. When we left off, Toobin
had mentioned the controversial Citizens United case.

Let's look at that Citizens United case because Justice Stevens, who you
just profiled, played a very interesting role in that and wrote the
dissenting opinion. So I'm going to ask you to sum up what the case was.

Mr. TOOBIN: Okay, there's a small picture and a big picture about
Citizens United. The small picture is sort of the bizarre complexities
of the case. Citizens United is a right-leaning public interest group.
They came up with a film that they wanted to show that was very critical
of Hillary Clinton on the eve of the Democratic primaries in 2008.

Some of the money under – that underwrote that film came from
corporations. Under the McCain-Feingold law, corporations were not
allowed to spend money on the eve of elections. So, Citizens United
sued, saying that law was unconstitutional.

Well, the first time the court heard the case, they were dealing with
very narrow questions about whether Citizens United was really covered
by the law and whether the technology that Citizens United was using was
really covered by the law, but then something very unusual happened. The
court issued an order saying: we want to hear an entire new argument,
but we want the court to address much broader questions. Can the First
Amendment – can corporations be regulated in terms of their right to
freedom of speech? Do corporations have the same rights as human beings
when it comes to the First Amendment? And that's how the case was
argued, and that's how the case was decided.

And in a five-to-four decision written by Justice Kennedy, he said that
the McCain-Feingold law, as it applied to corporations, was
unconstitutional, that corporations had a right to free speech, and that
right included the right to spend as much money as they want, whenever
they want on behalf of any candidate any time.

And Justice Stevens wrote a 90-page dissenting opinion, the longest of
his career, that was more scathing, more angry, more sarcastic than
anything he'd ever written before and I think will be a somewhat bitter
coda to a otherwise rather cheerful Supreme Court career.

GROSS: Before we get to that dissenting opinion that he wrote, how
unusual was it for the Supreme Court to order a case to be re-argued in
broader terms?

Mr. TOOBIN: Very, very unusual. When Warren Burger was chief justice in
the '70s and '80s, the court was a much more disorganized place, and
there were occasional re-arguments. It almost never happened under
William Rehnquist. It had never happened before under Chief Justice John
Roberts, and I think it's indicative about how serious the conservatives
on the court are about pushing the law, about changing the law, about
overturning precedents that they don't like, that they decided to have
this case re-argued and decided in so much broader terms.

GROSS: And that's one of those things that Justice Stevens objected to
in his dissenting opinion.

Mr. TOOBIN: One of many, but certainly for those who know Justice
Stevens, he is, above all, a meticulous lawyer. He is someone who takes
the facts of cases very seriously. And the way the court treated the
case, the way the court sort of changed the rules in the middle of the
game, the way the court reached out to questions that weren't
necessarily before it was very offensive to the conservative, small C,
in Justice Stevens, and you can see that in his dissenting opinion. But
that was not the only objection he had to what the majority did.

GROSS: Well, before we get to the other objections, let me just quote
him. He says: they changed – they being the conservatives on the court –
they changed the case to give themselves an opportunity to change the
law.

Mr. TOOBIN: Exactly, and I think Justice Stevens' dissent illustrates
what he believes is the rejection of truly conservative values that's
embodied by the current Roberts court.

Conservatives used to be associated with the term judicial restraint,
not deciding things they didn't have to decide, and liberals used to be
known as judicial activists, but here you have a classic example, in
Stevens' mind, of conservative judicial activism, of conservatives
reaching out to find an issue in a case that wasn't even there to
overturn the will of the people in the form of a law passed by Congress
and signed by President Bush, to advance conservative values.

And I think that judicial activism offended Justice Stevens almost as
much as the merits of the case.

GROSS: Other decisions that Justice Stevens has been unhappy with
include Bush v. Gore, and he has a famous line from that, that I'll
quote, that you quote in your profile on him: “although we may never
know with complete certainty the identity of the winner of this year's
presidential election, the identity of the loser is perfectly clear.
It's the nation's confidence in the judge as an impartial guardian of
the rule of law.”

Mr. TOOBIN: You know, I still get chills when I hear that. What a nerd I
am. I just think...

GROSS: Well, you covered that whole story and wrote a book about it.

Mr. TOOBIN: I lived through Bush v. Gore in real time in Florida and
then in Washington. And it is so characteristic of Justice Stevens that
he would look at that case in terms of the judicial role, that above
all, Stevens has confidence in judges. You know, he's not shy about
saying that judges can handle things, that judges can manage difficult
problems.

And he saw Bush v. Gore as an example of the judges in Florida making
decisions to have recounts of the votes interpreting their law and then
the United States Supreme Court stepping in for what looked like
political reasons. Stopping the recount was something that he just
couldn't abide, and that to him was the great offense of the case.

GROSS: Justice Stevens also wrote two very important decisions about the
Bush administration war on terror, and both of these had to do with
detainees at Gitmo. Can you briefly summarize his role in those
decisions?

Mr. TOOBIN: Well, the two cases were – the first one was known as Rasul
in 2004. The second one was Hamdan in 2006. And basically what the Rasul
case was about, initially when the Bush administration sent the
detainees to Guantanamo, they said these people are outside the American
legal system, they have no right to go to court period. And the Rasul
case said yes, they do. They are under total American control, so they
have the right to file habeas corpus.

In response to that, the Bush administration set up certain procedures,
trial-like procedures that would determine whether the detainees would
remain in Guantanamo. The Hamdan case was the case that said, per
Justice Stevens, that those procedures were inadequate under,
specifically, the Geneva Conventions, to protect the rights of the
detainees.

And these were enormously important decisions not just nationally but
internationally, establishing that the president of the United States
had to work under the rule of law even in wartime, something the Supreme
Court has rarely said in its history. And I think those two cases will
be the central legacy of John Paul Stevens.

GROSS: Jeffrey Toobin will be back in the second half of the show. His
profile of Justice John Paul Stevens is in the new edition of The New
Yorker. Toobin is a staff writer at the magazine, covering legal
affairs, and is a senior analyst for CNN. I'm Terry Gross, and this is
FRESH AIR.

(soundbite of music)

GROSS: This is FRESH AIR. I’m Terry Gross, back with Jeffrey Toobin.
We're talking about his profile of Justice John Paul Stevens in the new
edition of The New Yorker. Stevens turns 90 next month and is expected
to retire soon. He served on the court for 35 years and has become one
of its leading liberal voices, so his retirement is likely to have a big
impact on the court.

Jeffrey Toobin is a staff writer for The New Yorker covering legal
affairs and is a senior analyst for CNN.

How would you compare Stevens' interpretation of the Constitution with
Justice Scalia's interpretation?

Mr. TOOBIN: Well, you know, one of the great constitutional dramas of
the past couple of decades has been Stevens and Scalia arguing politely
but emphatically with each other about just that question. Justice
Scalia is associated with the school of thought called originalism,
which means that the interpretation of the Constitution should be
governed by what the framers of the Constitution thought the words meant
in the 18th century when they wrote them. And, for example, most
famously, the framers of the Constitution did not believe that they were
establishing a woman's right to choose an abortion, so the Constitution
does not protect a woman's right to choose.

Justice Stevens is associated with a different school of thought, which
says the Constitution's meaning changes over time. That when you are
dealing with questions like abortion, like wire-tapping, like wartime,
the Constitution has to reflect the values that the 18th century authors
imparted but the specific meaning reflects, in part, the change in the
society as well. So that absolutist view of Scalia and that more
flexible view of Stevens has been the central aspect of the conflict
between them.

GROSS: I guess something I really don’t understand about the kind of
absolutist view, the literal view of the Constitution, is there's so
many decisions about things that didn’t exist in the 18th century, so
you really don’t know what the Founding Fathers would've thought about
wire-tapping because there weren’t telephones, there weren't computers.
I mean, there weren't corporations the way there are corporations today.

Mr. TOOBIN: Well, there are a lot of critiques of originalism and that's
just one of them. Also, in the 18th century, the Constitution was
written specifically with slavery permitted, and it’s referred to in the
Constitution itself. Now, the Constitution has been amended many times.
The 13th, 14th, and 15th Amendments after the Civil War abolished
slavery and established equal protection of the laws.

So what does that mean? Do you look at the intent of the framers of the
amendments or of the Constitution itself? Whose intent controls? How do
you find out what they intended? What if different people intended
different things? These are very hard questions and they raise questions
about whether originalism is a useful way to interpret the Constitution.
But Justice Scalia has been very successful in bringing that view to the
Supreme Court.

GROSS: As Justice Stevens prepares to retire, I'm wondering if you think
that the Supreme Court has become a less cordial place because it is so
ideologically divided.

Mr. TOOBIN: I would say the Supreme Court remains a cordial and polite
place. It is not a warm place. It is not a place where people hang out.
The Chief Justice Rehnquist really established a rule at the Supreme
Court which said, in effect, good fences make good neighbors. The
justices, by and large, do not have a lot to do with each other except
when they are in conference, at lunch, or in the courtroom.

And that - and they communicate with each other almost the exclusively
by memorandum, not even by email. That has continued, by and large, in
the Roberts court but with, I think, an additional level of tension
because Chief Justice Roberts, who is so much younger than most of the
other justices, is not regarded as a peer in the way that William
Rehnquist was. And I think there is a sense - correct sense - that
Roberts is interested in pushing the law harder and faster to the right
than Rehnquist was, particularly late in his tenure.

So it remains a polite and cordial place but it’s not a warm and cuddly
environment.

GROSS: There's been a lot of public criticism lately between elected
leaders and the court, and I think that's maybe a little unusual. Like
after the State of the Union Address – well, just a few days ago Justice
Roberts, speaking to law students, said that he found it very troubling
to be surrounded by people who were cheering the president's criticisms
of the court's decision giving corporations the free speech rights of
individuals. President Obama had said that this decision opened the
floodgates for special interests to sway the elections.

Justice Roberts said he thought that this criticism and the cheering for
that criticism was a reason for justices to avoid going to State of the
Union Addresses in the future.

Mr. TOOBIN: Starting with the State of the Union, when Justice Alito
visibly reacted negatively to President Obama's speech, we have had a
great civics lesson on what's really at stake and who’s on what side at
the Supreme Court. Because, don’t kid yourself, the reason this tension
exists and the reason Roberts and Alito are dissatisfied at the moment
with Obama is because they disagree with him politically because there
is a history there.

President Obama is the only president in history to have been a former
senator who voted against the confirmation of this chief justice who
swore him in. This is significant. We have a progressive liberal
democratic president. We have conservative Republican justices in
ascendancy at the Supreme Court. So when you see Justice Alito wincing
during the State of the Union, when you see Chief Justice Roberts
complaining about cheering at the State of the Union, cheering that he
doesn’t seem to have objected to when President Bush was in office and
he was at the State of the Union, we are seeing the mask fall. And
that's a healthy thing for the public to see because it’s just true.

GROSS: Well, you know, along the same lines, a few days ago, Senate
Majority Leader Harry Reid criticized Justices Robert and Kennedy for
the campaign finance decision and he said that the court was engaged in
judicial activism. The Senate has held a hearing to help figure out how
the court came to its conclusion on that case and the impact the case
will have on democracy. Again, is it unusual for the Senate to be
challenging a Supreme Court decision right after it's made?

Mr. TOOBIN: Well, it’s not all that unusual. Supreme Court wades into
controversy all the time and Congress certainly has the right to respond
in a way that's consistent with the Constitution. The problem the Senate
and the problem Democrats face in responding to the Citizens United case
is that once the Supreme Court says corporations have free speech rights
like people, they have the last word on that subject. So the only way
Democrats can respond legislatively is really at the margins. For
example, they can tighten disclosure requirements about who - disclosing
who paid for what speech. But they can't stop it and that I think is one
reason why Democrats are so frustrated by this.

GROSS: If you’re just joining us, my guest is Jeffrey Toobin and he
profiles Justice Stevens in the new edition of The New Yorker, where
Toobin is a staff writer. He's also a senior analyst for CNN. Let's take
a short break here and then we'll talk some more. This is FRESH AIR.

(Soundbite of music)

GROSS: If you’re just joining us, my guest is Jeffrey Toobin. He's been
covering the Supreme Court for many years. His recent bestseller was
called "The Nine: Inside the Secret World of the Supreme Court." In this
week's edition of The New Yorker he profiles Justice Stevens, who is
likely to retire very soon. Toobin is a staff writer for The New Yorker
and a senior analyst for CNN.

A couple of years ago, the Supreme Court overturned a Washington, D.C.
handgun ban, saying that it violated the Second Amendment. And now
there's another gun case at the Supreme Court. Tell us about that case
and what the significance of it will likely be.

Mr. TOOBIN: Well, the case you’re describing, the Heller case in 2008,
said the federal government, which is how the D.C. law is treated, has
to honor an individual's right to keep and bear arms under the Second
Amendment. The issue in the case the court is currently deciding is,
does a state have to honor the Second Amendment in the same way?

Over the many years, mostly in the '60s, the Supreme Court has said that
all - most all of the protections of the Bill of Rights, the first 10
amendments, apply against the states, even though the words of the Bill
of Rights say Congress shall make no law abridging the right to free
speech, et cetera. And they have done what's called incorporation,
applying those against the states. The question is, does the Second
Amendment apply against the states? And it’s a tricky political question
because liberals usually like incorporation. They like to apply the Bill
of Rights against the states. They think that's a good thing, but they
don’t like the current interpretation of the Second Amendment, so they
don’t want that applied against the states.

My guess is the court will incorporate the Second Amendment and will ban
gun control in the states and we are in for decades of litigation trying
to figure out what gun control is legal and what gun control isn't.

GROSS: So, since the '08 decision overturned Washington, D.C.'s handgun
ban and this new gun case before the Supreme Court is challenging a
handgun ban in Chicago, if that handgun ban is overturned, does that
mean that there will be no gun control? That the Second Amendment will
prevent any form of gun control in the country?

Mr. TOOBIN: Well, this is one of the many open questions about the whole
gun control area, because it will mean that no state can infringe on the
right to keep and bear arms. What that means is hard to say. Does mean
that you that you and I have the right to buy a Stinger missile? Does
that mean we have the right to buy a tank? Now, my sense is I don’t
think that's what the Supreme Court is going to mean. But they are going
to have to refine what they mean by keep and bear arms over many years.
And this area of the law, which had been settled for decades, that the
Second Amendment does not protect an individual's right to keep and bear
arms, is suddenly wide open. And gun control is not just politically on
the ropes, it is legally very much in question everywhere.

GROSS: So are these gun control cases also examples of what a lot of
people would describe as judicial activism?

Mr. TOOBIN: Well, this seems to me a classic example of judicial
activism, because the definition of judicial activism is the courts
telling state legislatures, telling elected officials, we know better
than you. Liberal judicial activism is telling the state legislature of
Texas, you may want to ban abortion, we're not going to let you do that.
But this is conservative judicial activism, saying to D.C., saying to
Pennsylvania, saying to Illinois, you may want to ban machine guns,
handguns, felons in possession of weapons, but we know better. We are
not going to allow it.

GROSS: Does that mean no background checks or anything too?

Mr. TOOBIN: Well, you know, no one knows.

GROSS: Mm-hmm.

Mr. TOOBIN: I mean, you know, is a background check an infringement of
the right to keep and bear arms? The National Rifle Association sure
thinks so. The Supreme Court hasn’t weighed in on that yet. But now that
they have established that the Second Amendment establishes a personal
right to keep and bear arms, all of those questions like background
checks, like laws banning children from possessing guns, convicted
criminals from banning guns, all of those issues are now on the table.
And anyone who predicts exactly how the Supreme Court is going to come
out on those issues is blowing smoke because nobody knows.

GROSS: So just to clarify, so did the '08 decision already throw all of
this up in the air or is it the current decision that may do that?

Mr. TOOBIN: The '08 decision, the Heller case, said that individuals
have the right to keep and bear arms against regulation by the U.S.
government. The question now in this case is, do states have the right
to regulate guns, not just the federal government? And if the answer is
no, if they don’t have the right to infringe on the right to keep and
bear arms, the question is: is any kind of regulation of guns, the size
of weapons, the registration of weapons, the background checks, the
question is, is any of that still constitutional?

GROSS: When do you expect a decision to be handed down in the current
gun case?

Mr. TOOBIN: I would say probably about April or May.

GROSS: That's pretty soon.

Mr. TOOBIN: Yeah.

GROSS: In the Supreme Court now, Stevens is preparing to retire. Justice
Ginsburg might leave in the near future, too. She's fairly old and she's
been sick. I mean, she had surgery for pancreatic cancer. So, say they
both left in the near future, that would so change the court, wouldn’t
it?

Mr. TOOBIN: You know, Byron White, who served on the court for more than
30 years after he was appointed by President Kennedy, he liked to say,
when you change one justice, you don’t change one justice, you change
the whole court. The dynamics always change in a group that small and we
are now looking at a period of great turnover at the court. You know,
2005 you had Roberts and Alito.

Now, in 2009, you have Sotomayor. 2010 you have very likely Stevens
leaving, another justice. So that's almost half the court replaced in
less than five years. And I think it is a profound change in the court,
especially when you change the chief justice too, and the justices are
really feeling their way trying to figure out how this is going to
affect their decisions.

GROSS: So when do you think Justice Stevens is likely to retire and do
you have any clues who President Obama might appoint to replace him?

Mr. TOOBIN: Well, Justice Stevens was very candid with me about the
timing of his decision. The last time I spoke to him was March 8th, and
I asked him, when are you going to make up your mind? And he said, in
about a month. So I think it's very likely that we will know soon
whether Stevens is retiring and I think he will decide to retire.

This will not be a surprise to the Obama administration. They have very
much suspected that a vacancy is imminent and I do think they have a
candidate in mind and, frankly, I think I know who it is. I think it's
going to be Elena Kagan, the current solicitor general, the former dean
of Harvard Law School. She has a reputation as a consensus builder. She
is someone who brought vigorously fighting factions at Harvard together.
She worked in the Clinton administration and had good relationships with
Republicans in Congress at the time. She has never been a judge, which
is, I think a point in her favor for Obama. There are all former judges
on the court now and I think Obama wants people of more different
backgrounds. So I think she's the likely choice.

GROSS: Is the fact that she's solicitor general now a good thing in a
sense that she's already been vetted?

Mr. TOOBIN: Yes. She has definitely been vetted. She has been confirmed
by the Senate for this job. Now, it is different to be confirmed as
solicitor general, which is a appointment that only lasts for a
president's term, and being confirmed for a lifetime seat on the Supreme
Court. But the fact that she has been through the process, the fact
that, you know, the conservatives in the Senate Judiciary Committee saw
her in action and saw that she's a good performer in those
circumstances, I think those are very much points in her favor. And a
moment where Obama has so much on his plate, a relatively un-dramatic
choice as Elena Kagan would be would be very much to his liking.

GROSS: Well, Jeffrey Toobin, thank you so much for talking with us.

Mr. TOOBIN: Good to talk to you, Terry.

GROSS: Jeffrey Toobin profiles Justice John Paul Stevens in the current
edition of The New Yorker. He's a staff write for the magazine and a
senior analyst for CNN. You can read the full text of Toobin's New
Yorker article on our Web site, freshair.npr.org, where you'll also find
background information on all of the cases mentioned in today's show.
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Hilary Hahn: Violin And Voices Entwined In Bach

(Soundbite of music)

TERRY GROSS, host:

Bach's cantatas contain some of his greatest music but their individual
sections are seldom performed on their own and least of all by
celebrities. There's a new CD that our classical music critic Lloyd
Schwartz says provides a welcome exception to this rule.

(Soundbite of music)

LLOYD SCHWARTZ: Bach composed more than 200 cantatas — substantial but
relatively short works for solo voices, chorus and orchestra. Most of
them were intended to be part of the Lutheran Sunday service. They tend
to be serious in tone, even grimly serious, dealing with the soul's
attempt to free itself from sin and its desire to leave earthly chains
for the liberation of death. But there are also cantatas about the joy
of salvation.

At the heart of all of them are arias, often accompanied by a solo
instrument, that have some of the most beautiful, expressive and
technically challenging moments in Bach. And since it's rare that a
celebrity performer takes on any of these challenges, I'd like to
applaud violinist Hilary Hahn for her latest recording in which she
joins forces with two of the world's most artistic singers in a dozen
Bach arias with violin obbligato.

Here's Hahn introducing a duet in one of Bach's better known cantatas,
“No. 140, Wachet Auf" — "Wake Up" — with soprano Christine Schafer as
the eager bride and bass Matthias Goerne as Jesus, the soul's spiritual
bridegroom, who reassures her he's on his way. The nonstop violin solo
suggests both the yearning bride and the comforting groom — three voices
inextricably entwined in complex musical paragraphs.

(Soundbite of song, "Wachet Auf")

SCHWARTZ: Another one of my favorite selections on this CD is the bass
aria "Welt, Ade" — "Farewell World, I'm Tired of You" — from Cantata No.
158. Matthias Goerne brings to Bach the warmth and subtlety audiences
are familiar with from his recordings of German lieder. In this aria,
there's a sudden surprise entrance by Christine Schafer, floating like a
bright angel over Goerne's dark voice. Her part was actually written for
the entire soprano section of the chorus, echoing the bass' desire to
leave a world of war and strife and offering instead an eternity of
heavenly bliss. The anthem she sings is something Bach borrowed from
Johann Rosenmüller, a composer who died the year before Bach was born.
The violin seems to be making audible what's in the singer's heart.

(Soundbite of song, "Welt, Ade")

SCHWARTZ: The biggest rarity on this disc is paradoxically one of the
most famous selections, "Erbarme Dich" — "Have mercy" — the moving alto
lament from the St. Matthew Passion, a work almost forgotten after
Bach's death until Mendelssohn revived it a century after it was
written. Hahn chooses the version that Mendelssohn reworked for a
soprano. I hope this album encourages listeners who are unfamiliar with
Bach's cantatas to seek out their complete versions. Those who already
know the music will surely welcome these admirable performances.

(Soundbite of music)

GROSS: Lloyd Schwartz is classical music editor of the Boston Phoenix
and teaches English at the University of Massachusetts, Boston. He
reviewed violinist Hilary Hahn's new disc "Bach: Violin & Voice." You
can hear several cantatas performed by Hilary Hahn, including "Farewell
World, I'm Tired of You," on our Web site frshair.npr.org, where you can
also download podcasts of our show.

I'm Terry Gross.
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