Jeffrey Toobin

  • Aired:  09/18/12
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CNN's senior legal analyst Jeffrey Toobin discusses the Obamacare Supreme Court decision, Super PACs and Ruth Bader Ginsburg. (5:20)

HEY, WELCOME BACK, EVERYBODY!

MY GUEST TONIGHT IS HERE TO TALK ABOUT OBAMA'S RELATIONSHIP WITH THE SUPREME COURT.

IT'S KIND OF A HE SAID; SHE SAID; SHE SAID; SHE SAID; HE SAID; HE SAID; HE SAID NOTHING.

PLEASE WELCOME JEFFREY TOOBIN.

(CHEERS AND APPLAUSE) JEFFREY, GOOD TO SEE YOU AGAIN.

>> GREAT TO BE HERE.

>> Stephen: THIS IS YOUR SIXTH TRIP TO "THE COLBERT REPORT." FAIR WARNING: THIS IS YOUR LAST APPEARANCE BEFORE YOU HIT THE

GUEST PAY WALL.

LAST FREEBIE SO LET'S MAKE IT GOOD.

>> Stephen: .

>> I'LL DO MY BEST.

>> Stephen: YOU WRITE FOR THE "NEW YORKER," YOU'RE A SENIOR LEGAL ANALYST FOR CNN AND YOU'VE GOT A NEW BOOK CALLED "THE OATH:

THE OBAMA WHITE HOUSE AND THE SUPREME COURT." LAST TIME YOU WERE HERE YOU SAID THE SUPREME COURT WAS DEFINITELY

GOING TO RULE AGAINST OBAMACARE, IT WAS A DISASTER FOR OBAMA.

YOU LIED TO ME.

(LAUGHTER) IT BROKE MY HEART!

A HEART THAT IS NOW COVERED BY OBAMACARE!

(LAUGHTER) HOW DID YOU GET IT SO WRONG?

>> I JUST-- OVER-- I PAID TOO MUCH ATTENTION TO THE ORAL ARGUMENT AND NOT ENOUGH TO WHAT I THINK JOHN ROBERTS-- I NOW

KNOW WAS THINKING ABOUT THIS CASE.

>> Stephen: OKAY, ROBERTS.

LET'S GET INTO THIS.

YOU GET INTO THIS.

ROBERTS CHANGED HIS MIND, RIGHT?

ROBERTS WAS GOING TO SAY ONE THING AND THEN FOR SOME PERSONAL REASON HE CHANGES HIS MIND.

WHY DID HE DO IT?

>> WELL, IN THE FIRST PLACE, THERE'S NOTHING WRONG WITH CHANGING YOUR MIND.

>> Stephen: YES THERE IS!

YES THERE IS!

ANTONIN SCALIA HAS NEVER CHANGED HIS MIND.

>> THAT'S TRUE.

BUT SUPREME COURT OPINIONS ARE NEVER FINAL UNTIL THEY'RE ANNOUNCE SOD JUSTICES SOMETIMES GO BACK AND FORTH DURING THE

PERIOD THEY'RE DELIBERATING.

BUT IN PART HE WAS JUST PERSUADED BY THE ARGUMENT THAT THIS WAS A TAX, A PERMISSIBLE TAX UNDER THE CONSTITUTION.

BUT ALSO I THINK HE DIDN'T WANT TO SEE THE COURT IN THE MAELSTROM OF POLITICS.

HE DIDN'T WANT TO SEE ANOTHER BUSH.

HAVE GORE CITIZENS UNITED WHERE FIVE REPUBLICANS RULED AGAINST FOUR DEMOCRATS AND IN THE OBAMACARE CASE HE SIDED WITH THE

FOUR LIBERALS.

>> Stephen: KENNEDY IS THE ONE WHO NORMALLY--

>> USUALLY.

THAT'S ONE REASON WHY SO-CALLED EXPERTS LIKE ME WERE WRONG.

WE WERE LOOKING TO KENNEDY AS THE SWING VOTE IN THE OBAMACARE CASE BECAUSE HE IS SO OFTEN BUT WASN'T IN THAT CASE.

>> Stephen: WHY DOES HE GET TO BE THE SWING VOTE SO OFTEN?

BECAUSE HE'S THE BEST JUSTICE?

(LAUGHTER) IS HE THE SMARTEST ONE?

>> NO, IT'S BECAUSE THE OTHERS HAVE VERY PREDICTABLE VIEWS ON MOST OF THE CONTROVERSIAL ISSUES

AND HIS VIEWS ARE MORE MERCURIAL.

>> Stephen: WHAT DOES MERCURIAL MEAN?

(LAUGHTER)

>> MERCURIAL MEANS UNPREDICTABLE, A LITTLE STRANGE.

>> Stephen: OH, REALLY?

REALLY?

>> YES.

>> Stephen: THAT'S QUITE A COMPLIMENT.

>> WELL, WELL DESERVED.

>> Stephen: WELL THANK YOU VERY MUCH-- ON BEHALF OF JUSTICE KENNEDY.

(LAUGHTER) HAS CLARENCE THOMAS SPOKEN IN THIS PAST YEAR?

>> NOT FOR SIX AND A HALF YEARS.

>> Stephen: REALLY?

HAS ANYONE HELD A MIRROR UNDER HIS NOSE TO SEE-- (LAUGHTER).

LIKE IF IT FALLS--

>> HE'S VERY MUCH ALIVE.

HE TALKS OUTSIDE OF COURT BUT NOT IN COURT.

>> Stephen: WE'RE VERY CLOSE TO THE FIRST MONDAY IN OCTOBER RIGHT NOW.

>> WE ARE.

>> Stephen: WHAT ARE WE LOOKING AT-- WHAT ARE THE CASES?

WILL THE COURT RULE THAT WE CAN NOT SHOW PICTURES OF PRINCESS KATE'S BOOBS?

(LAUGHTER)

>> THAT'S IN THE FRENCH COURTS, NOT THE U.S. COURTS SO I DON'T THINK SO.

I THINK THE BIG CASE ABOUT AFFIRMATIVE ACTION AND CITIZENS UNITED.

YOUR BIG CASE.

>> Stephen: MY FAVORITE CASE!

ESTABLISHED SUPER PACS.

>> BUT I THINK THEY ARE GOING TO GO FARTHER.

>> Stephen: GO FARTHER?

WHAT IS IT I CAN'T DO LEGALLY NOW?

I RUN A COCK FIGHTING RING OUT OF AN ORPHANAGE.

(LAUGHTER) IS THAT NOT LEGAL YET BECAUSE I SHOULD TALK TO A LAWYER.

>> THEY ARE GOING TO, I THINK, EVENTUALLY, MAYBE NOT THIS YEAR, ALLOW DIRECT CONTRIBUTIONS TO

CAMPAIGNS UNLIMITED.

YOU HAVE TO HAVE YOUR SUPER PAC, WHICH IS AT LEAST FICTIONALLY SEPARATE OR NOTIONALLY SEPARATE.

>>SEPARATE.

>> Stephen: IT IS ABSOLUTELY SEPARATE FROM SOMETHING.

>> SOON I THINK YOU'LL BE ABLE TO GIVE MONEY DIRECTLY TO CANDIDATES.

THE LIMITS ON HOW MUCH YOU CAN GIVE I THINK THEY MAY BE IN JEOPARDY AND CORPORATIONS MAY BE ABLE TO GIVE CAMPAIGNS--

DIRECTLY TO CAMPAIGNS AGAIN.

>> Stephen: WHAT DOES ANOTHER OBAMA TERM LOOK LIKE FOR THE SUPREME COURT?

>> WELL, THERE ARE FOUR JUSTICES IN THEIR 70s NOW.

RUTH GINSBURG IS 79.

SHE'S PROBABLY THE MOST LIKELY TO LEAVE IF OBAMA IS REELECTED BECAUSE, YOU KNOW, SHE'S SYMPATHETIC TO HIM POLITICALLY.

>> Stephen: HE'LL APPOINT LIKE A GAY POLAR BEAR OR SOMETHING LIKE THAT?

(LAUGHTER) WHO.

>> WHO VOTES LIBERALLY, YES.

BUT THE NEXT TWO OLDEST ARE JUSTICE SCALIA AND JUSTICE KENNEDY WHO ARE 76 WHO PROBABLY DON'T WANT TO LEAVE IF OBAMA'S

PRESIDENT BUT THEY'RE STARTING TO GET TO THE AGE WHERE, YOU KNOW, YOU DON'T KNOW EXACTLY WHEN YOUR TERM IS UP.

AS THEY SAY.

(LAUGHTER) I MEAN, THE STATISTICS ARE THE STATISTICS.

>> Stephen: I UNDERSTAND, IT SOUNDS KIND OF SPOOKY COMING OUT OF AN ANALYST.

THANK YOU SO MUCH FOR JOINING ME, JEFFREY TOOBIN.

>> MY PLEASURE.

>> JEFFREY TOOBIN, THE BOOK IS CALLED "THE OATH." GO GET IT.

WE'LL BE RIGHT

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