Jeffrey Toobin

  • September 17, 2014

    by Caroline Cox

    Congratulations to Mary L. Bonauto, member of the ACS Boston Lawyer Chapter Board of Advisors, and Jonathan Rapping, member of the ACS Georgia Lawyer Chapter Board of Advisors, on their selection as a 2014 MacArthur Fellow (commonly known as the MacArthur Genius award).

    Happy Constitution Day! Dahlia Lithwick of Slate examines the holiday and whether the celebration is itself unconstitutional.

    In The New York Times, Adam Liptak previews an upcoming Supreme Court case that examines the privacy of statements made during jury deliberations.

    Brian Bakst of The Associated Press reports on Justice Ruth Bader Ginsburg’s recent comments that a ruling on same-sex marriage from the U.S. Court for the Sixth Circuit could influence when the Supreme Court weighs in.

    In The New Yorker, Jeffrey Toobin explores how the standard of “undue burden” is disappearing from abortion rights debates and cases.

  • September 4, 2014

    by Caroline Cox

    The U.S. Court of Appeals for the D.C. Circuit ruled this morning that it will hold an en banc rehearing in Halbig v. Burwell, the case dealing with the legality of some Affordable Care Act subsidies, reports Zoe Tillman in The National Law JournalJeffrey Toobin explains in The New Yorker how the fight in Halbig is also a fight over whether textualism should serve as a dominant legal theory.

    Ben Protess reports in The New York Times on the departure of Tony West from the Department of Justice. West delivered remarks at the 2013 ACS National Convention.

    In Politico, David Rogers reports on a case between the Justice Department and immigrant-rights groups over whether illegal immigrants should be provided counsel.

    U.S. District Court Judge Martin Feldman’s ruling to uphold Louisiana’s ban on same-sex marriages carefully appeals to the Supreme Court’s swing voter, argues Garrett Epps in The Atlantic.

    In Slate, Dahlia Lithwick writes on what the justice system should learn from the recent ruling that, thirty years after their convictions in a 1983 murder case, two mentally disabled half-brothers are innocent. 

  • June 11, 2013

    by Jeremy Leaming

    The apologists for the nation’s ever-growing intelligence apparatus continue to ratchet up their rhetoric over the actions of the whistleblower Edward Snowden, but one of the nation's oldest civil liberties group, the ACLU, is not dissuaded, taking more action to try and bring clarity and accountability to a vast and unwieldy spy network.  

    The ACLU lodged a lawsuit against the NSA’s mass surveillance of phone calls, “charging that the program violates Americans’ constitutional rights of free speech, association, and privacy,” as ACLU Legal Fellow Brett Max Kauffman reports.

    The lawsuit, Kauffman notes, follows The Guardian’s disclosure of an order from the Foreign Intelligence Surveillance Court granting the NSA power to collect phone information from millions of Verizon customers. Later the newspaper reported on a program that the NSA and FBI are using to capture and collect information from users of the Internet, e-mail, video chat, audio and other actions. 

    In its lawsuit against the surveillance of phone calls, the ACLU says, “As an organization that advocates for litigants to defend the civil liberties of society’s most vulnerable, the staff at the ACLU naturally use the phone – a lot – to talk about sensitive and confidential topics with clients, legislators, whistleblowers, and ACLU members. And since the ACLU is a VBNS customer, we were immediately confronted with the harmful impact that such broad surveillance would have on our legal and advocacy work. So we’re acting quickly to get into court to challenge the government’s abuse” of a section of the Patriot Act that makes it easier for the spy agencies to obtain permission to collect more information on Americans.   

    The ACLU’s action is noble work and focuses on what matters: are national security concerns consolidating power in an ever-growing intelligence apparatus at the cost of liberty? The pundits that taking to the airwaves and blogosphere to sanctimoniously blast Snowden are laregely tiresome and irrelevant.

    For example, CNN’s legal analyst Jeffrey Toobin knocks Snowden as a “grandiose narcissist who deserves to be in prison.” Toobin groused that there’s right ways to go about challenging the powers-that-be and well, if you don’t follow those strictures you’re a criminal, which is similar to what constitutional law expert Geoffrey R. Stone wrote in his piece for The Huffington Post. Unlike Toobin, Stone is a one of the nation’s leading experts on constitutional law, always worth paying attention to.

    Stone focuses on why Snowden’s actions were unlawful – Supreme Court case holds that “not only can government employees constitutionally be required to agree not to disclose classified information, but they can even be required to agree, as a condition of employment, not to publish ‘any information or material relating to … intelligence activities even after they leave the government service without ‘specific prior approval.’ As the Court emphasized an employee’s disclosure of ‘material relating to intelligence activities can be detrimental to vital national interests.’”

  • March 15, 2010
    The New Yorker's Jeffrey Toobin explores the tenure Justice John Paul Stevens, the Supreme Court's "fourth-longest serving" justice in an article that contemplates a high court "without its liberal leader."

    In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are "dozens" of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.

    Stevens said the Court has lurched rightward since he joined it in 1975. "You don't have to ask me that," Stevens responded to Toobin's question on the tilt of the high court. "Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn't that create the likelihood that people will think you're not following the rules?"

    Toobin maintains that the peak of Stevens' work centers on his decisions involving the treatment of military detainees:

    In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush's war on terror-and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime-Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts. In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge's dissent in the Ahrens case-which he himself had helped write, fifty-six years earlier. One of Stevens's law clerks, Joseph T. Thai, later wrote an article in the Virginia Law Review entitled "The Law Clerk Who Wrote Rasul v. Bush," which concluded that "Stevens's work on Ahrens as a law clerk exerted a remarkable influence over the Rasul decision."

    Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v. Rumsfeld, in which a five-to-three majority rejected the Bush Administration's plans for military tribunals at Guantánamo, on the ground that they would violate both the Uniform Code of Military Justice and the Geneva conventions. (Roberts did not participate in that case, because as a judge on the D.C. Circuit he had joined the opinion that Stevens overruled.)
    Stevens's repudiation of the Bush Administration's legal approach to the war on terror was total. First, in Rasul, he opened the door to American courtrooms for the detainees; then, in Hamdan, he rejected the procedures that the Bush Administration had drawn up in response to Rasul; finally, in 2008, in Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the system that Congress had devised in response to Hamdan.

    After the attacks of September 11, 2001, the Bush Administration conducted its war on terror with almost no formal resistance from other parts of the government, until Stevens's opinions. He was among the first voices, and certainly the most important one, to announce, as he wrote in Hamdan, that "the Executive is bound to comply with the Rule of Law."