There are two ways to explain the early onset of liberal panic over last week’s health care hearings at the Supreme Court. In the first, Solicitor General Don Verrilli turned in an unexpectedly weak performance during last Tuesday's oral arguments, flubbing tough questions from the court’s skeptical swing votes. In the second, New Yorker writer and CNN legal correspondent Jeffrey Toobin got on television and scared the hell out of all of us.
Of course, the truth lies somewhere in between these two tellings: Many reporters left Tuesday and Wednesday’s hearings disappointed by Verrilli and feeling pessimistic about the fate of the law. But none spread doom so brazenly as Toobin, so quickly, and with so big a megaphone. You could agree with Toobin or not, but you couldn’t ignore his take.
Here, then, is the blow-by-blow account of how Jeff Toobin set the conventional wisdom on the Obamacare case.
Jeff Toobin creates a Twitter account, decorates it with cover shot of his forthcoming book The Oath (368 pages, Random House, $28.95).
12:02 p.m. Oral arguments on individual mandate end.
12:08 p.m. Toobin, standing in front of the Supreme Court, tells CNN anchor “This was a train wreck for the Obama administration. This law looks like it’s going to be struck down.”
12:08 p.m. Kevin Glass, an editor at the conservative website Townhall.com, becomes the first to tweet Toobin’s prognostication. Twitter erupts.
1: 12 p.m. Toobin tweets a condensed version of his verdict, again using the term “train wreck.” Twitter erupts anew. Between 12:08 and 2:30 p.m. the word “Toobin” appears in approximately 1,500 tweets.
2:00 p.m. Toobin returns to CNN to rehash what an anchor calls “the quote heard around the world.”
2:30 p.m. Washington Post health care reporter Sarah Kliff and Atlantic blogger Derek Thompson refer to Toobin in their first pieces on the hearings.
3:11 p.m. Politico media reporter Dylan Byers writes a straight-news account of Toobin’s prognosis, with a caveat about his predictive powers (for example: O.J., Michael Jackson, Bush v. Gore).
3:22 p.m. A reporter for some reason asks Senate Majority Leader Harry Reid what he thinks of Toobin’s comments. Reid responds: "I'm sure he’s trying to sell some words that he distributes around.”
4:00 p.m. Toobin’s back on CNN, with the little-noted disclaimer that “the bigger the case, the less the oral arguments matter.” Wolf Blitzer seems impressed that Toobin’s “really generating a lot of buzz out there on Twitter @JeffreyToobin.”
? a.m. Bloomberg Businessweek Assistant Managing Editor and former Wall Street Journal legal affairs reporter Paul Barrett writes undated article called “The Toobin Factor,” cautions us not to “read too much into the theatrics at the high court.”
8:26 a.m. House Minority Whip Steny Hoyer decides to jump in: “I think it’s way too early to say that…it was a train wreck or that this case is over.”
9:25 a.m. Politico asks White House legal counsel to defend Don Verrilli against charges the government’s case was a “train wreck.”
11:50 a.m. Oral arguments on the question of the law’s “severability” from individual mandate end.
11:56 a.m. Toobin doubles down on apocalyptic rhetoric. Via twitter: “At #scotus, still a train wreck, maybe also a plane wreck for @BarackObama.”
11:57 a.m. “Plane wreck” officially becomes an Internet meme.
12:02 p.m. Toobin elaborates on CNN: "I think the individual mandate is gone, based on the questioning.”
12:07 p.m. Reuters runs its Toobin story: “CNN ‘train wreck’ comment on healthcare case leaves a mark.”
4:26 p.m. Politico’s Byers interviews Jeff Toobin about the “The Toobin Factor” (which as of yet, is not the name of a CNN primetime show).
11:00 p.m. Toobin appears on Charlie Rose, tells Rose that it’s “close to a consensus view that the individual mandate is in grave, grave trouble.”
Neat trick, huh? If anyone deserves credit for creating that consensus, it’s Toobin.
To be sure, Verrilli’s performance was weak and often painful to listen to; reporters weren’t just copying Toobin when pointing that out. But Toobin’s prediction that this spelled the individual mandate’s doom was more dubious. Tough questioning from conservative judges on the individual mandate, as Sam Stein has pointed out, doesn’t mean all that much. And as Toobin himself noted in a interview with Ezra Klein last Tuesday morning, “most Justices say their minds are changed by oral arguments a handful of times—fewer than five—per year.” A few hours later, he was predicting that Verrilli’s stutters meant the law would be struck down.
When Dylan Byers asked him on Wednesday about his own effect on the week’s news, Toobin responded that “one of the great joys of working for CNN, especially in a breaking news moment, is that you can sometimes feel the impact, because people look to you for the first explanation of what's going on.”
A week later, Toobin’s joy has abated, and he’s published a more judicious analysis of the case—one which looks backwards rather than forward—in the New Yorker. This essay constitutes the finished product of Toobin’s reporting. It’s the first draft, unfortunately, that we’ll all remember.