The Oath: The Obama White House and The Supreme Court [Hardcover]

Jeffrey Toobin (Author)

Book Description

Release date: September 18, 2012

From the prizewinning author of The Nine, a gripping insider's account of the momentous ideological war between the John Roberts Supreme Court and the Obama administration.

From the moment John Roberts, the chief justice of the United States, blundered through the Oath of Office at Barack Obama's inauguration, the relationship between the Supreme Court and the White House has been confrontational. Both men are young, brilliant, charismatic, charming, determined to change the course of the nation—and completely at odds on almost every major constitutional issue. One is radical; one essentially conservative. The surprise is that Obama is the conservative—a believer in incremental change, compromise, and pragmatism over ideology. Roberts—and his allies on the Court—seek to overturn decades of precedent: in short, to undo the ultimate victory FDR achieved in the New Deal.
   This ideological war will crescendo during the 2011-2012 term, in which several landmark cases are on the Court's docket—most crucially, a challenge to Obama's controversial health-care legislation. With four new justices joining the Court in just five years, including Obama's appointees Sonia Sotomayor and Elena Kagan, this is a dramatically—and historically—different Supreme Court, playing for the highest of stakes.
   No one is better positioned to chronicle this dramatic tale than Jeffrey Toobin, whose prize-winning bestseller The Nine laid bare the inner workings and conflicts of the Court in meticulous and entertaining detail. As the nation prepares to vote for President in 2012, the future of the Supreme Court will also be on the ballot.

Editorial Reviews

Amazon.com Review

A Letter from the Author

Think John Roberts has discovered his inner moderate? Don’t bet on it.

It is true, of course, that Chief Justice Roberts’s vote in the health-care case saved the Affordable Care Act – and perhaps Barack Obama’s presidency as well. At the end of the Supreme Court’s last term, Roberts joined with the Court’s four liberals – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – to uphold the constitutionality of the health-care reform law. It was the first time ever that the Chief joined with the liberal quartet in a major case. It’s also probably the last.

Roberts has the advantage of a long-term perspective. At fifty-seven years old, Roberts will likely still be Chief Justice when Sasha and Malia Obama become eligible to succeed their father in the White House. Roberts’s decision in the health-care case reflected his understanding of his place in the history of the Court. In terms of public attention, the health-care case – known as National Federation of Independent Business v. Sebelius – formed a trilogy with Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010). In those first two cases, five Republican appointees to the Court rendered decisions which provided dramatic benefits to the Republican Party – the first, by installing George W. Bush as president, and the second, by creating a campaign finance system that favors the GOP. In the health-care case, Roberts had to ask himself whether the five Republicans on the Court were going to destroy the central achievement of a Democratic president.

Roberts chose not to go that far. His Republican allies, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, overplayed their hand. They sought to invalidate the law it its entirety, not just the controversial individual mandate. If Roberts had joined them, the Chief would have stirred volcanic partisan outrage and placed the Supreme Court at the center of the 2012 election. Instead, he chose a novel ground – Congress’s constitutional power to levy taxes – to uphold the law. He established new limits on the Commerce Clause, which is usually the principal means for Congress to regulate the economy. He advanced the conservative cause in the long run by disappointing conservatives in the short run.

Chief Justice Roberts also gave himself a political free hand for the foreseeable future. He can be as conservative as he likes and he has insulated himself from criticism for partisanship. That will be important – soon. The Court will likely consider several politically incendiary issues in its 2012-13 term. May universities use race as a consideration in admissions, as Justice Sandra Day O’Connor said they could, in a famous decision from 2003? Does the Voting Rights Act of 1965 discriminate against white voters and legislators in southern states? Does the Defense of Marriage Act discriminate unlawfully against gay people? And – most dramatically of all – does the constitution include a right to same-sex marriage?

Look for Roberts to lead the conservative side on all of these issues. For the next year, and many more, the Chief Justice’s vote in the health-care case will be seen as the great aberration of his judicial career.

From Booklist

*Starred Review* From the awkward swearing-in of President Obama by Chief Justice Roberts to Obama’s caustic reaction to the Citizens United ruling to Roberts’ support of Obama’s health-care law, the tumultuous relationship between the administration and the Supreme Court has been increasingly evident. Both Harvard-educated lawyers, Obama and Roberts are known for their charm and intelligence, but their very different political perspectives have promised friction from the beginning, particularly as changes in the composition of the court resonate with the changes in national politics. Legal analyst Toobin offers a vivid inside look at the personalities and politics behind the fractious relationship. Roberts’ honeymoon lasted 12 months before the fault lines in the court cracked along ideological lines, with conservatives disappointed in his attempts at equanimity and liberals distrustful of his behind-the-scenes maneuverings. Toobin details the politics behind decisions about what cases even get heard as well as the procedural strategies that affect the final rulings. Among the highlights: Ginsburg’s scathing dissent on a ruling against a claim of pay disparity, in which she urged congressional action; Souter’s caustic dissent in Citizens United that questioned Roberts’ integrity; and Scalia’s bitter disappointment in Roberts’ decision on the health-care law. A revealing look at the ideological battle between the White House and the Supreme Court. HIGH-DEMAND BACKSTORY: The best-selling author of The Nine (2007) revisits the Supreme Court in a timely book that is sure to draw plenty of interest during the election season. --Vanessa Bush

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Product Details

• Hardcover: 352 pages
• Publisher: Doubleday (September 18, 2012)
• Language: English
• ISBN-10: 0385527209
• ISBN-13: 978-0385527200
• Product Dimensions: 6.5 x 1.2 x 9.5 inches
• Shipping Weight: 1.5 pounds (View shipping rates and policies)
• Average Customer Review: 4.4 out of 5 stars  See all reviews (171 customer reviews)
• Amazon Best Sellers Rank: #20,175 in Books (See Top 100 in Books)
  • #11 in Books > Politics & Social Sciences > Politics & Government > United States > Judicial Branch
  • #15 in Books > Law > Rules & Procedures > Courts
  • #15 in Books > Law > Legal History

More About the Author

Jeffrey Toobin is a staff writer at The New Yorker, senior legal analyst at CNN, and the bestselling author of The Oath: The Obama White House and the Supreme Court, The Nine, Too Close to Call, A Vast Conspiracy, The Run of His Life and Opening Arguments. A magna cum laude graduate of Harvard Law School, he lives with his family in New York.

Most Helpful Customer Reviews

54 of 58 people found the following review helpful

4.0 out of 5 stars Great Reporting, Questionable Legal Analysis September 26, 2012

By Hank Peace

Format:Kindle Edition|Amazon Verified Purchase

Toobin provides brief, biographical info on each of the associate justices and Chief Justice Roberts and President Obama because he believes their background provides a window to their views. It is probably not entirely clear why, in his short histories of Roberts and Obama, that Toobin details the rise of Critical Legal Studies at Harvard Law School. After all, Roberts' tenure at Harvard predated the Crits, and Obama never bought into their views. So why bring it up? The answer lies in Toobin's background. Like Roberts and Obama, Toobin graduated magna cum laude from Harvard and was on law review. Unlike Roberts and Obama, Toobin is a Crit. That is, he buys fully into the theory that all law is merely a vehicle for the application of politics. The Oath should be viewed through that lens. To Toobin, every opinion the justices write is written to advance the positions of their party. This view is ridiculous, which is why CLS is now discredited in the academy, but it still has an obvious adherent in Toobin. Toobin is also a very good journalist and writer.

The Oath shines as a piece of journalism, as a work of current history of the Supreme Court, tracking it from Obama's inauguration. The short bios of the President and each justice are sterling. As is his reporting of the twists and turns of Citizens United and the Obamacare case between oral argument and opinion (this is particularly impressive, sources within the Supreme Court are hard to come by). Interestingly, Toobin thinks it was law clerks, not the justices themselves, who provided leaks on Obamacare, contrary to the conventional wisdom.

Toobin has a good handle on each justice's writing style. Scalia is a master of the polemic, Roberts is a master stylist (curiously, given his views elsewhere, Toobin perhaps overestimates Roberts' abilities as a writer), Souter wrote in stilted prose, Kennedy is prone to bloviation.

He ably shows the humanity of each justice, especially through their relationships with each other--the very conservative Scalia and very liberal Ginsburg are famously great friends (Scalia openly wept as Roberts read a tribute to Ginsburg's late husband from the bench) and the conservative Rehnquist and moderate O'Connor always maintained a bond as westerners from Stanford Law. (Not that any of that was previously unknown.)

Toobin is also generally fair and perceptive in his analyses of the justices' jurisprudence (I think his opinions of Scalia and Thomas push the bounds of reasonableness, but are reasonable nonetheless). He doesn't commit the common error of underestimating Thomas' influence. He doesn't treat the conservative justices as a monolithic block. With one exception, he captures in broad strokes the jurisprudence of each. Alito doesn't have the libertarian streak that Scalia and Thomas do. Thomas doesn't have the reticent to go against precedent in the name of originalism that Scalia does. Kennedy is less a moderate than quite liberal on some issues (e.g., the 8th Amendment) and quite conservative on other issues (political speech).

Unfortunately, given the thesis to the book, the one exception is a significant error. Toobin casts Roberts as the Devil himself, devoted to advancing the Republican party at all costs. According to Toobin, the Roberts Court is engaging in a "war on precedent." But it has been a hallmark of the Roberts Court that it is MORE solicitous of its precedents than past courts--overturning its own precedents and invalidating federal statutes at a slower rate than under Chief Justices Rehnquist, Burger, or Warren. Toobin is perhaps suffering from a form of confirmation bias--it's only those precedents that he likes that he notices being overturned (on the other hand, it's undeniable that Roberts has moved the law significantly through those few precedents overturned). Toobin's own reporting cuts against his thesis. Roberts wanted a narrow ruling in Citizens United but only relented when Kennedy pushed for a more sweeping ruling.

Toobin flatly states that "[a]t its heart, Citizens United was a case about Republicans versus Democrats." But he only does so after rather laughably dismissing the ACLU and unions as Democratic constituencies. And it was called the MCCAIN-Feingold bill. Perhaps a better dividing line over campaign finance would be incumbents versus challengers.

Toobin elsewhere commits egregious, if not uncommon, errors. Toobin equates Lochner with Dred Scott and Plessy. It may be orthodox, but given what we now know about Lochner (it struck down a law primarily for the benefit of large bakery operations squeezed by immigrant mom-and-pop shops), it's irresponsible to equate it to a law stripping a vast slice of Americans of their rights. Toobin accuses the Court of "prevent[ing] any governmental restraints on the great new concentrations of wealth and power in commercial and corporate interests" during the Lochner era. This isn't wrong as a matter of opinion, it's wrong as a matter of fact. The "Lochner" Court only invalidated a very small portion of the regulations that came before it.

Similarly, Toobin states that Scalia brought originalism to the Court. Scalia didn't bring originalism to the Court. John Marshall brought originalism to the Court. Scalia only brought it back after a relatively short (50 years versus 140 years) hiatus.

Toobin compares Heller to Roe. In his eyes, both cases invented new rights not in the Constitution. But the 2nd Amendment is, in fact, in the Constitution (I checked). That the historiography or its application is not entirely clear does not equate it to a provision invented whole cloth. Toobin frequently points to the indeterminacy of determining original public meaning in offense against originalism. Yes, it's often hard. But need I remind Toobin (and the justices) that it's indoor work with no heavy lifting? Difficulty deciding between A and B does not make C an equally valid answer.

According to Toobin, "no one suggested the [individual mandate] was unconstitutional." Going even further, he claims "[n]o one wrote an op-ed piece." This would be news to David Rivkin, whose op-ed arguing an individual mandate would be unconstitutional was published in the Wall Street Journal on September 29, 1993. Similarly, conservative and libertarian scholars were arguing that the individual mandate was unconstitutional before Obamacare passed. It wasn't a widely held or discussed view, but there is a reason potential justices refuse to address hypotheticals during their confirmation hearings--the facts really do matter and each issue really does demand serious study to decide properly (you can see why a Crit would disagree).

All that said, this is still a "must read." There is precious little good reporting on the secretive Supreme Court, and even less by reporters that actually understand the law. It's perhaps too much to ask for them to present it honestly.

Background material comprises 19% of the Kindle edition. It consists of photos, acknowledgements, surprisingly sparse notes, a bibliography, photo credits, and an About the Author section.

33 of 37 people found the following review helpful

3.0 out of 5 stars 1/5 of an Excellent Book October 5, 2012

By J. Smallridge

Format:Hardcover|Amazon Verified Purchase

Four-fifths of this book seemed disorganized, newsy, or anecdotal.

First, the disorganization. Toobin starts off by talking about the controversial oath of office delivered by Roberts to Obama upon the latter's election to the presidency. He then spends the first part of the book tracing the rise of both these individuals through their chosen professions. So far, so good. However, weaved in this discussion is a series of chapters that examine Ginsburg and Breyer and the cases that defined their careers. Huh? Part two follows with a look at Scalia before going BACK to an example of Obama's bipartisanship before then examining the appointment of Sotomayor. Part three looks at Citizens United, Alito, and Stevens. Part four looks at Kagan's appointment, Thomas, and retired justices O'Connor and Souter. Still following? Finally, part five examines the subtitle of this book by examining in detail Obama and the Court through the lens of the Affordable Care Act decision. Throughout much of the first 250 pages, I found myself wondering how exactly the President and Roberts figured into this book, or where the book was headed.

Second, the fact that this book is "newsy" stands out because a lot of what Toobin writes has already been reported elsewhere. Although I enjoyed the pages on Souter's quirks, O'Connor's struggle to care for her husband, and Kagan's relationship with Scalia, a lot of this has been documented extensively (and better) elsewhere -- the Wall Street Journal, Washington Post, New York Times. Thus, a reader can spend a lot of time trying to find his/her way through the chapters only to learn details that have already been reported.

Last, in examining the justices, Toobin cites maybe five pages of sources. He claims that most of his writing is based on interviews. That is fine, but in taking this approach he clearly is no Bob Woodward. Whereas Woodward, and others like him, are able to get their contacts to go BEYOND what is available elsewhere, Toobin clearly cannot do this (or elected not to).

Finally, the one-fifth of the book that was excellent was the final section (about 50 pages) about what went on surrounding the Affordable Care Act decision. His reporting felt like new information, was well-written, and extremely insightful. In the age of e-book publishing, I found myself wondering why he or his publishers didn't just decide to print that section on its own. I ultimately came to the conclusion that they didn't because they couldn't have sold it for $30. Better to pad the final section with meandering chapters full of the already known than to put out something with standalone relevance.

49 of 58 people found the following review helpful

5.0 out of 5 stars Enlightening, Provocative and Stimulating! September 19, 2012

By J. Gomez TOP 500 REVIEWER

Format:Hardcover|Amazon Verified Purchase

The Oath: The Obama White House and the Supreme Court by Jeffrey Toobin

"The Oath: The Obama White House and the Supreme Court" is the riveting book that covers the evolution of the Supreme Court with a focus on how it relates to President Obama's administration. It discusses many of the hot-button issues of today by the Roberts-led Supreme Court while making precise historical references. It provides enlightening characterizations of the current justices including recent retirees. Award-winning author, senior legal analyst at CNN and Harvard Law School, Jeffrey Toobin, has written an expertly crafted book for the masses that goes inside the Supreme Court and provides readers with the current struggles of constitutional interpretation. This enlightening 352-page book is composed of twenty-three chapters within five parts.

Positives:
1. A beautifully written book that covers the evolution of the Supreme Court to its current form. Enlightening, provocative and stimulating.
2. Riveting topic in the hands of a skilled author.
3. Even-handed and fair. A book of this ilk must cover the main angles of the issues to be fair and it does. Toobin does this book, dare I say it...justice.
4. The book is full of captivating tidbits, personality traits and facts about the justices. I really enjoyed how the author masterfully interweaved the personalities and philosophies of each one of the justices within the context of court cases.
5. The book provides readers with terrific insight on what it entails to be a Supreme Court justice. The preparation, intelligence and caution it takes to be an elite within elite. "It is important to be identified enough with one party to have patrons, but not so closely that you have enemies."
6. The main philosophical differences between liberal and conservative Supreme Court Justices. Many fascinating stories and keen insight. As an example, the idea of unenumerated rights (liberals), and the concept of textualism (conservatives)...
7. Biographies of President Obama and Chief Justice Roberts.
8. Fascinating court cases. Many examples throughout the book. From celebrities (Anna Nicole Smith) to Health Care Reform. Of course, the paramount case of Brown v. Board of Education
9. Ruth Bader Ginsberg her contributions and her quest to give women a voice. The "Thurgood Marshall of the feminist movement."
10. One of my favorite chapters, "Wise Latina" of course I'm talking about the nomination process of the 111th Supreme Court Justice, Sonia Sotomayor. As district court judge she saved baseball. I also enjoyed the recent tradition of her colleagues greeting her with the silent treatment, just like baseball when a rookie phenom hits that first homerun.
11. Issues of taxation (corporations as people), labor issues, right-to-life versus choice, gun control, race, and finance reform are among the many interesting topics covered.
12. The case of Citizens United that illustrates the themes of corporate power, freedom of speech and the intersection of law and politics. The deep political implications.
13. The question that changed a case and perhaps American history. Censorship.
14. The evolution of the Supreme Court to its current more conservative makeup led by Chief Justice Roberts.
15. The interesting parallels between Roberts and Kagan (the Frozen Yogurt Justice).
16. The swing-vote power of Justice Kennedy.
17. The White House's reactions to Supreme Court rulings. How new laws can counter "bad" rulings and the issue of separation of powers. The confrontations between the Obama White House and the Roberts Supreme Court.
18. An interesting look at the retired justices and their influences. To name one of the three, the impact of Sandra Day O'Connor. Her stunning retirement and its deep-felt implications. Her views on Chief Justice Roberts.
19. The nomination and confirmation process of a Supreme Court Justice. How it has evolved over the years. The politics involved. In depth look at Sotomayor and Kagan's nomination process.
20. The impact of the Tea Party: antitaxation, antiregulation, and ant-abortion. "Above all, Tea Party members were originalists, dedicated to restoring the modern government of the U.S. to the views, as they understood them. Of the eighteenth-century framers."
21. The controversial selection of Supreme Court Justice Clarence Thomas. His rulings, his impact to the evermore conservative court. The attempt to get Thomas off the health care case. His customary silence.
22. Court cases involving "separation" of church and state.
23. The health care reform issue, the debate the battle, discussions on individual mandates, the results and the stunning decision from Chief Justice Roberts. The ramifications of the decision.
24. Roberts' agenda, his goals for his tenure as chief justice. On the other hand, the apparent lack of interest of the President in judicial nominations.
25. Notes and bibliography provided.

Negatives:
1. Charts and lists of Supreme Court justices would have added value.
2. Having to buy more books for friends and family.

In summary, I thoroughly enjoyed this book. The combination of fascinating topics in the hands of a lucid storywriter makes for a great insightful book. From the blunder of the Oath of Office to the surprising decision to uphold the Affordable Care Act, this book covers everything as it relates to the Obama presidency and the Supreme Court. It also provides fascinating historical narratives of the Supreme Court including political themes of paramount importance. All the major hot-button themes are covered with great skill and Toobin does a wonderful job of covering multiple angles of issues. This book turned out to be an intellectual treat. If you have any interest in the Supreme Court this is the book for you. I highly recommend it!

Further suggestions: "The Nine: Inside the Secret World of the Supreme Court" by the same author, "The U.S. Supreme Court: A Very Short Introduction" by Linda Greenhouse, "Five Chiefs: A Supreme Court Memoir" by John Paul Stevens, "The Brethren: Inside the Supreme Court" by Bob Woodward, "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court" by Jan Crawford Greenburg, "The Supreme Court: The Personalities and Rivalries That Defined America" by Jeffrey Rosen, "Making Our Democracy Work: A Judge's View" by Stephen Breyer, "The Majesty of the Law: Reflections of a Supreme Court Justice" by Sandra Day O'Connor and "Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality" by Richard Kluger.