Why this election matters for the Supreme Court

>>> we're back with an important issue that's not getting enough attention in this presidential campaign. the future of the supreme court . the court began it term this week and could soon rule on some of the most important issues in the country. affirmative action , same-sex marriage and the voting rights act of 1964 all expected to be on the court 's agenda. millions of americans will be affected by what these justices decide and mitt romney 's already made it clear that if easy he's elected president, and anthony ext anthony scalia. this is another reason why this election is so important. joining me now is jeffrey toobin , legal expert and staff writer for the new yorker and author of a new book, the oath, the obama white house and the supreme court . jeffrey, thank you very much for being here tonight.

>> good to be with you, rev.

>> wednesday i know because i'm going to be down there and there's a lot of action that this court is going to hear and decide that could up in voting rights and same-sex marriage.

>> and you can see george w. bush 's impact on those issues. in 2003 , justice o'connor broewrote, diversity is a legitimate goal and the case you're going to hear, the fisher case out of the university of texas , is a direct challenge to that and a threat to affirmative action in public universities but it could lead essentially to the death of affirmative action and and you covered in this book, and i'm reading it, very good book, that a lot of the behind the scenes back and forth around the affordable health care act when it went before the court and people were stunned, i among them, when john roberts voted and you write in the book and i want to read, this is out of the book, quote, by demanding that roberts kill our entire health care law , the four conservative justices prompted them to look for some kind of middle ground . roberts felt obligated to protect the institutional interests of the court , not just his own philosophical agenda. now, doing that, he uncost merrily went against the conservatives, members of the court .

>> he certainly did and count me among those who are shocked and predicted wrongly. justice sees himself as the chief justice, as the embodiment of the court and after citizens united , after bush v. gore to do it a third time in a relatively short period of time would have damaged the court and romney found that middle ground under the taxing power of congress and he upheld the law but don't think that john roberts has suddenly.

>> a mentor of mine said, be when he said that, he did not find it, they had the right to deal with interstate commerce .

>> right.

>> but that they could deal with tax law , most of the civil rights legislation was built around interstate commerce .

>> it sure was.

>> that is not a good sign for some of the stuff that you're dealing with now.

>> including the voting rights which they are going to be dealing with.

>> because if he already said in the affordable care act decision that he does not find that the interstate commerce is allowable, then how does he turn around in the voting rights decision and say it?

>> well, he has the voting rights act in his sights, the depth. you saw it in a case out of texas and basically what roberts has said, maybe in 1965 these states covered by the voting rights act , maybe it was justified then but the country has changed so much and these states have changed so much that they need to be freed from the restricts of the voting rights act even though this law has made such an enormous difference in the african-american political representation.

>> 2009 , chief justice roberts gave some indication that when he questioned the constitutionality of the voting rights act , which is what you just said, in court opinion he wrote, things have changed in the south. this is it in a court opinion . blatantly discriminatory evasions of federal decrees are rare. the act imposes current burdens and must be justified by current needs. so when people see us rallying out there, we are actually looking at a chief justice that you thoroughly went through in this book that may, in fact, turn the voetiting rights act around. we're looking at historic times.

>> and he will serve much longer than george w. bush , barack obama . these justices serve -- they don't serve for four year terms. they serve decade after decade and that's why the issue is so important.

>> you gave a fascinating portrait of how similar yet different allies of president obama and john roberts swore him in and had to do the oath again. both of them had ties to chicago. both of them harvard, both of them harvard law review . i mean, it was amazing how they were like flip sides of the same coin.

>> it is. they do a fascinating parallels. but the paradox of the difference is that john roberts when it comes to the constitution is the candidate of change. he's the one who wants to change the law on abortion, on civil rights , on the death penalty , on all of these areas whereas obama is much more of a cautious conservative when it comes to the course. he's the one saying, let's leave things the way they are. the law is okay the way it is. roberts is part of the generation of conservatives. ronald reagan brought them to washington who said, we have to change the law.

>> i've been trying to tell everybody, i'm a conservative. i'm trying to conserve the voting rights act , conserve affirmative action . i'm the conservative. so glad jeffrey toobin came on the show to affirm that for me.

>> that's my goal, rev.

>> jeffrey toobin . the book is, the oath, the obama white house and the supreme court . you need to read it and get ready for this year. thanks for being here tonight, jeff. we'll be right