Morning Joe | September 18, 2012
>>> the oath, senator?
>> i am.
>> i barack hussein obama .
>> i barack hussein obama , do solemnly swear.
>> that i will execute the office of president to the united states faithfully.
>> that i will execute --
>> faithfully the office of president of the united states .
>> the office of president of the united states faithfully.
>> and will to the best of my ability.
>> and will to the best of my ability.
>> preserve, protect, and defend the constitution of the united states .
>> preserve and protect and defend the constitution of the united states .
>> so help you god?
>> so help me god.
>> congratulations, mr. president.
>> 48 past the hour, chief justice john roberts administering the oath of office at the inauguration in 2009 , slight problem there. an omen, perhaps, of an impending rocky relationship between the current executive and judicial branches. joining us now, legal analyst and staff writer for "the new yorker," jeffrey toobin , the author of "the oath," the obama white house and the supreme court . good to have you with us.
>> good morning.
>> meacham likes the pictures.
>> he loves the pdf. jeffrey, is there a more fascinating decision than the decision that was handed down by the roberts court on the affordable care act ?
>> most fascinating and probably most important. you know, 35 million people will or will not get insurance based on one vote in the supreme court . and it was unexpected, certainly by me. but --
>> by everybody. by everybody.
>> just about. and i think it was in many respects now in retrospect now that i've done the reporting, the summation of just what a powerful intellect and political thinker john roberts is.
>> can you explain? because i've explained to some of my conservative friends that don't follow the court closely, while they hated the conclusion, roberts conclusion, in many ways, i've heard you say this, it empowers roberts moving forward. and on the big issue, the commerce clause , he kept it as narrow as he could under the circumstances.
>> right. most of us and certainly the argument going into the case was all about whether the commerce clause of article one gave congress the right to pass this.
>> can you compel people to engage in commerce?
>> correct. and roberts said no. which was a tremendous conservative victory. but then he turned the corner and he said, well, congress also has the power to tax and this was a legitimate tax under that part of the power.
>> this move obviously a brilliant political move on the court. is roberts as good as anybody you've seen over the past let's say quarter century, 30, 40 years politically in working of the court?
>> better than anybody.
>> he's brilliant.
>> and a better writer. you know, i think the best writer in the history of the supreme court was robert jackson , who served in the '40s and '50s, fascinating, brilliant guy. john roberts is an elegant, beautiful stylist, which is the exception rather than the trial supreme court . he's remarkable man.
>> so john roberts proves to both conservatives and liberals that a vote's just not enough, right? we have the harriet meyers example in 2005 . a lot of conservatives, going to be a vote for the conservatives. you want if you are a progressive, somebody with a sort of intellect, a conservative.
>> you do let's not kid ourselves. john roberts did not discover his inner moderate last june.
>> he is a very conservative justice. when you look at the range of issues, going to have affirmative action up very soon, the future of the voting rights act , same-sex marriage. abortion ultimately. and he will be conservative on those issues -- what he has done --
>> i'm saying he knows how to navigate the waters.
>> that's right. he is a brilliant politician, which is a skill that you need as a judge.
>> jon meachum?
>> compare and contrast your two protagonists because obama is a pretty good politician.
>> he is a very good politician. but the paradox is barack obama , this liberal chicago former constitutional law professor, is not that interested in legal change. he is someone who believes that change comes from the ballot box , not the court house . and even though he is respectful of the civil rights pioneers bike thurgood marshall this is not someone who put a lot of emphasis on the courts starting with a very underrated figure in recent american history , i think, edwin meese . he came to washington and said we are going to change the courts. republicans cared about the courts. obama hasn't even bothered to submit nominees for a lot of the vacancies on the federal bench .
>> just not something he has put a lot of emphasis on. fairness, a very busy four years, a lot of other things going on but indicative of the way democrats and republicans approach these issues now.
>> at the time went affordable care act , decision came down, there was some reporting and a lot of speculation on the basis of things that were in some of the -- what the tick tock was on roberts coming right up to the edge, planning to vote the different way and changing his mind about the internal. how much of that tick tock is in the book what happened do you say about it?
>> there's a lot of behind-the-scenes stuff about the decision and i think it's important to remember, you know, at the supreme court , decisions are never final until they are announced. so the idea of changing your vote is not something sinister or inappropriate. it was not 180-degree turn by roberts but he certainly became much more against the law than he was on the friday when they took their first vote. and there's also been a lot of talk about how angry the conservatives were. but sure they were angry but you know what, they are repeat players. and at the supreme court , it doesn't pay to hold grudges because you are going to need your colleagues' vote again. scalia, thomas, alito, they were all very frustrated with roberts , you know what first monday in october, it will be a new day.
>> you were in a very small row boat and always shocking to people to find out that anthony scalia invites ruth bader ginsburg over.
>> every new year's eve.
>> tough be that way, although that is a change. william rhenquist put a big emphasis on their getting allowing. historically, they didn't get along. they were known as nine scorpions in a bolt
>> when william o. douglas had a terrible car accident, the first question everybody asked at the time was where was felix frankfurter , they hated each other so much, they thought that frankfurter split tried kill him. since rhenquist was chief justice, it has been a much more congeal y'all environment.
>> the book is "the oath, the obama white house and the supreme court ." jeffrey to been, goods to see you.
>>> coming on -- coming up -- regis philbin .
>> written a book on the supreme court .
>> he was on the supreme court .
>> for a couple of years. be on the set, right here on " morning joe " and