87 of 97 people found the following review helpful
on September 26, 2012
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.
53 of 64 people found the following review helpful
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.
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.
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.
41 of 50 people found the following review helpful
on October 5, 2012
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.
28 of 35 people found the following review helpful
Our current Supreme Court, under the leadership of Chief Justice John Roberts, is playing an important and often controversial role in how our government impacts our current society.
The opening prologue of the book describes the events leading up to the administration of the Oath of Office for Obama's first term as President. Toobin describes how an oversight by staffers who failed to provide Obama with the short document prepared by Roberts (which described the way in which Roberts intended to administer the Oath) contributed to Roberts and Obama getting out-of-synch during the Oath, and which therefore resulted in the famous misstatement of a few words in the Oath and ended up requiring the very un-precedented and embarrassing need to re-administer the Oath so that there would be no later questions on whether or not Obama had actually been sworn in properly!
That episode has little to do with the main premise of the book but it does serve to set the stage and illustrate the personalities of Obama and Roberts, who despite their very similar backgrounds and academic training, have vastly different views of how the Constitution should be interpreted.
Toobin gives a number of examples where he suggests that decisions by the Court under Chief Justice John Roberts are merely a preview of much more to come.
Take for example the 2010 Supreme Court Decision in Citizens United v. Federal Election Commission. The now well-known consequence of this decision, the emergence of Super-PACs which make no contributions to political candidates or campaigns and can therefore accept unlimited contributions from individuals or corporations, has greatly influenced our political process. This decision derived from the Courts decision that the Free Speech provisions of the constitution meant that no restrictions should be placed on financial contributions, since spending money was simply an extension of our exercise of free speech. As a consequence, we now have Super-PACs which are thinly disguised constructions to present the veneer of independence from political candidates, but are in fact for all intents and purposes extensions of political campaigns. Toobin believes that Citizens United is just the first step by the Court in this area, and that we will soon see a decision by the Court that will support less restrictive direct contributions to candidates and campaigns.
Toobin also believes that Clarence Thomas has been leading many of these initiatives. This view of Thomas is quite eye-opening to me. My view of Thomas has been influenced greatly by his complete uninvolvement with oral arguments before the Court (unlike all other Justices, he famously does not ever engage in questioning during oral arguments). However Toobin feels that Thomas has in fact greatly influenced the development of these new views.
If Toobin is right, then we have only seen the beginning of the Supreme Court re-interpreting key laws. So depending upon your point of view, the suggestion that the Supreme Court has a plan or agenda to reinterpret many of the key previous decisions of the court - including most importantly many of those which have made a great impact on our everyday lives - is either positive (and exciting), or negative (and disturbing if not out-and-out threatening).
It seems that the role of the Supreme Court in our everyday lives has taken on more and more importance over the course of the last few decades. I don't know if that is what the Founders intended, but it seems to be the reality of our lives today. The prospect of the Court taking many more dramatic steps in the future, many of which could have significant effects on our lives, such as how the Citizens United case has, is quite thought provoking to say the least. I will be observing the actions of the Court with a new interest and anticipation in the future.
28 of 37 people found the following review helpful
Bestselling author Jeffrey Toobin delivers a clear, concise and informative report on the dramatic changes within the Supreme Court. The author presents details and facts on the power and politics of the Supreme Court, the challenge to Obama's health-care legislation, and the relationship between the Supreme Court and the White House. The inside scenes from the Oath of office of Obama's inauguration to the description of Obama and Roberts determination to change the course of the nation is clearly explained. In addition, Toobin discusses the war between the Supreme Court and the Obama administration, describes the direction that the Chief Justice of the United States is heading, concerning major constitutional issues and the difference of opinion between Obama and Roberts. This presentation is intelligent, riveting, and entertaining. Highly Recommended for all American citizens, and those who enjoy history, and politics!
3 of 3 people found the following review helpful
on August 11, 2013
Toobin writes for the New Yorker on legal issues. He has done numerous profiles and articles on the Supreme Court over the years, including an outstanding book on the Renquist Court titled "The Nine."
Woven throughout the first half of this book are snapshot biographies of the two newest justices, Sotomayor and Kagan. The subtitle of the book captures it perfectly: "The Obama White House and the Supreme Court."
(1) The botched oath on inauguration day
(2) The Lily Ledbetter Act
(3) The Citizens United Case (gets the extra attention it deserves)
(4) The arguments and decision on the Affordable Care Act
Toobin definitely sympathizes with the liberals on the court more than the conservatives and it comes out in his writing. He does have some kind words at times for Roberts and the conservatives, but the major flaw in this book is that he doesn't leave it up to the reader to decide what was right and wrong.
Nonetheless, it's a very good book.
17 of 23 people found the following review helpful
on September 22, 2012
Like many interested observers, I had no idea how the Supreme Court would rule on the Affordable Care Act, but I assumed that the decision would be either 6-3 in favor (with Roberts and Kennedy joining the liberal wing of the court, and the vast majority of constitutional experts, in upholding the law) or 5-4 against (with all five conservatives striking it down). That the final decision was 5-4 in favor, with Roberts providing the deciding vote, was something that I don't think anybody expected. Democrats were relieved; republicans were outraged. What everyone wanted to know, especially as it emerged that Roberts had originally voted to overturn the law but then changed his vote before the final ruling, is why. What made him decide not to vote with his party?
President Barack Obama and Chief Justice John Roberts are two of the most powerful men in America, and in some ways they have similar backgrounds. Both attended Harvard Law, where each man graduated at the top of his class. However, they saw the law in different ways. Obama saw the role of the courts as enforcing the law, rather than making it; he sought change (particularly favoring the poor and disenfranchised) through legislative means. Roberts, on the other hand, saw the courts as the primary means for achieving his goals. As a lawyer, he specialized in getting cases thrown out for lack of standing, ensuring that claims against the corporations he represented would not be decided on the merits. As a judge, he continued that policy, looking for ways to dismiss cases for lack of standing. (When Roberts was nominated to the Supreme Court, then-senator Obama praised the man but voted against his confirmation, citing Robert's history of siding with the powerful against the powerless.) Before Roberts, moderate republican Sandra Day O'Conner had been the swing vote on the court; after she and Rehnquist were replaced by Alito and Roberts, the eccentric Anthony Kennedy became the new swing vote and the court took a sharp turn to the right. In rulings such as 2007′s Ledbetter v. Goodyear Tire & Rubber Co., when individuals conflicted with corporations, the court generally ruled on the side of the corporation. A full third of cases in the second year of the Roberts court were decided 5-4, and the court began to ignore the principle of stare decisis, seeking cases to overturn existing law rather than respecting precedent. Nowhere was this more evident than the 2010 Citizens United, which threw out decades of settled law on campaign financing.
After bringing in Obama and Roberts, the book introduces us to the associate justices through following cases of particular interest to each of them. Ruth Bader Ginsburg's primary interest lies in striking down discrimination; in her first case before the Supreme Court, Frontiero v. Richardson in 1973, she successfully argued that a female Air Force officer could claim her husband as a dependent (as a male office could have done with his wife, without dispute). In Weinberger v. Wiesenfeld two years later, she successfully argued that widowed fathers should receive the same Social Security benefits as widowed mothers. In the Lilly Ledbetter case, Ledbetter discovered shortly before her retirement that for decades, she had been receiving smaller raises than men doing the same job; as a result, she was now making $3,727 per month, while men in equivalent jobs were making between $4,286 and $5,236 per month. Ledbetter won her suit, but the judgement was overturned by the Eleventh Circuit, which held that Ledbetter was required to file an EEOC charge within 180 days; since she hadn't found out about the discrimination until 1997, she was only able to sue over her final pay adjustment, although her vastly lower pay was the result of years of gender discrimination. The Roberts court upheld that decision; Ginsburg wrote the dissent, in which she suggested that, as the court was ruling (incorrectly, she felt) only on the law and not on the Constitution, Congress could overturn the ruling (as indeed they did - the Lily Ledbetter Fair Pay Act was the first bill signed into law by President Obama).
For Stephen Breyer, compromise was never a dirty word. He believed in making government work, and his specialties were antitrust and administrative law. To Breyer, the greatest day for the Supreme Court was when they decided Brown v. Board of Education, embracing the principle that equal protection under the law applied to all citizens, not simply to the majority race. Some years, Breyer read less than one dissent per year from the bench, but in the Roberts court he found himself reading several in one day. One dissent, for example, came in the case of Leegin Creative Leather Products, in which the majority overturned a 1911 precedent holding that price fixing (specifically, requiring retailers to sell a product for a minimum price) was always illegal. Breyer's objections to the new working of the court were not solely its decisions (although he certainly disagrees with them) but the fact that it was ignoring stare decisis and quickly overturning established precedent.
Many times, Antonin Scalia didn't enjoy his work; routine cases bored him. He enjoyed the attention that being a Supreme Court justice brought to his ideas, however, and on the cases that mattered to him, he hated to lose. In 2003, for example, he employed his gift for invective in his dissent to Lawrence v. Texas, which held that gay people could not be prosecuted for having consensual sex. One of Scalia's major victories came in 2008, in District of Columbia v. Heller; for the first time, the Supreme Court found that the 2nd Amendment provided an individual right to bear arms. The case is interesting for how Scalia has successfully changed the tone of the court; most of the argumentation focused on the original intend of the founders (as opposed to how the Constitution should be applied today, as had been the case prior to Scalia's tenure). Ironically, Scalia's opinion drew largely from English law and writings prior to the American Revolution, while Stevens' dissent focused on the actual debates between the framers of the Constitution. (Breyer wrote another dissent, arguing that it wasn't the job of the Supreme Court to second guess the DC City Council, which had passed the law the suit was challenging.) Although Scalia claimed to interpret the Constitution as a "dead" document that should never change, in this case he lead the charge to overturn nearly two centuries of settled law (the only previous Supreme Court decision of note relating to gun laws came in 1939, where the court affirmed that the 2nd Amendment did not grant an individual right and that the government could regulate gun ownership). Interestingly enough, although the relevant sections of the Constitution refer to military weapons, the decision made no attempt to stop the government from regulating those (rocket launchers, etc); instead, it removed the ability of the government to outlaw handguns. Since the 1970s, the right had sought to reinterpret the 2nd Amendment; now, Scalia had granted their wish.
David Souter was dedicated to his job, but didn't enjoy it. A moderate republican who became part of the court's "liberal wing" as it moved to the right, Souter was disgusted by the transparently political Bush v. Gore. By the end of 2008, Souter (although not yet 70) was ready to retire. Obama had a short list of replacement candidates ready, and it was quickly whittled down further, Elena Kagan, for example, had only just been confirmed as solicitor general and had never yet argued before the Supreme Court. The president quickly settled on Sonia Sotomayor, who was considered a nearly perfect candidate. She had the educational background (Princeton and Yale) and the experience (prosecutor, district judge, judge on the federal appeals court), and had an impressive life story. While Obama personally liked the other person on his short short list (Diane Wood), he wanted someone he knew could work well with the other justices and put together coalitions. Additionally, the approval process needed to move quickly; the Supreme Court, which normally began its session in October, was starting a month early. In August, Sotomayer joined the court; on September 9, the court reheard Citizens United.
The original Citizens United case turned on a small point of law: could federal law prohibit a political group which received corporate funding from promoting a political movie within thirty days of an election? Unsurprisingly, the court came to a 5-4 decision. The liberal minority was surprised, however, to find that the chief justice, who had previously (and repeatedly) stated that it was a judge's responsibility to decide a case as narrowly as possible, and who had been known to berate lawyers for attempting to raise questions not found in the written briefs, used his majority opinion to greatly expand the scope of the case, rewriting decades of settled law. Souter wrote a scathing dissent that Roberts worried would damage the court's credibility, so he proposed that they rehear the case, with the court writing an expanded Questions Presented covering the wider scope that Roberts wanted to decide. The liberal wing of the court had no choice but to agree, knowing that the eventual 5-4 outcome was already decided.
The re-argued Citizens United would be Elena Kagan's first appearance before the Supreme Court. Although everyone knew that the conservative majority planned to strike down McCain-Feingold, the government hoped to limit the damage. They were unsuccessful; the court found that corporations had the right to unlimited political spending (although they did allow the government to continue putting disclosure requirements into place) and essentially struck down most campaign finance law. The case stands out as being one of the most egregious examples of judicial activism; as Stevens put it, "five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law." (Stevens wrote a 90 page dissent, concluding that "[w]hile American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.") The decision (which Obama's legal team read as allowing foreign interests to spend money to influence American elections, as well as opening the floodgates for domestic corporations to more easily buy politicians) positioned the president in direct conflict with the Supreme Court, and he used his State of the Union address a few days later to call for Congress to pass a bill correcting some of the problems. Since the ruling was on constitutional grounds, however, the president knew that overturning it would require either a constitutional amendment (which nobody on his team saw as being practical) or a new liberal majority on the Supreme Court.
Citizens United defined the Roberts court, as Bush v. Gore had defined the Rehnquist court, but it was obvious that the court would soon rule on the Affordable Care Act. As soon as the law was passed, republicans across the country began challenging it in court. For almost the entire time it was being debated (not to mention the previous two decades in which the individual mandate had been tossed around), it had never occurred to anyone to challenge the constitutionality; now, however, nearly the entire republican party took it on faith that the law was unconstitutional. Due to the amount of work involved in preparing to meet the law's requirements, the Obama administration requested a speedy review by the Supreme Court. In anticipation of the likelihood of the law eventually coming up for review, and her anticipated nomination to the high court, Kagan had refused to be present at any meetings involving the law; as a result, she had no need to recuse herself (Thomas, whose wife was one of the leaders in attacking the law, also refused to recuse himself), so the full court heard an unprecedented three days of argument on the law.
In the vote afterwards, the justices voted 5-4 to uphold one of the lower court decisions finding that the individual mandate was not justified under the commerce clause; Roberts assigned himself the opinion. What nobody was certain about was how far his opinion would go; the other four conservative justices wanted to throw out the law entirely, while the four liberals wanted to save as much as possible. While Roberts wanted to move as far to the right as practical, he had no wish to throw the country into chaos by wiping out the many established programs that had been reauthorized as part of the ACA; additionally, he did not wish to put the court at the center of the upcoming elections, as it surely would have if the republican majority had wiped out a democratic president's major accomplishment. In the end, rather than trying to decide what parts of the law would have to be thrown out along with the mandate, he realized that even if he limited the reach of the commerce clause (one of the goals of the right dating back to the New Deal), he could still uphold the mandate as a permitted excuse of the Congressional power to tax.
Clerks for the conservative justices starting leaking that Roberts might be changing his mind about the case (from his clearly telegraphed opposition to the law during arguments), and the right mobilized to keep him in line, but to no avail - the law (with a few exceptions) was upheld. Roberts achieved his goals of weakening the commerce clause and upholding the reputation of the court, while at the same time granting himself more breathing room for the cases to come.
Overall, I quite enjoyed this book. I had hoped for more about the actual ACA decision - the section on the healthcare act makes up less than 40 pages of a 300 page book, and it doesn't really offer any new information, but the book as a whole does a good job of showing what motivates each member of the court and how the court's practices have changed since Robert's confirmation. At times I felt that the author might be stretching slightly in an attempt to be completely fair to every member of the court, but on the whole I found it to be very well-written. I imagine that many people might not care for the section covering the history of the legal understanding of the 2nd Amendment, but overall, I feel confident in recommending the book for anyone interested in the work of, and personalities involved with, the Supreme Court.
This review originally appeared at Vulcan Ears Book Reviews (vulcanears.com)
7 of 9 people found the following review helpful
on September 24, 2012
"The Oath" is a summary the Roberts Court's major decisions from 2007 to the present and includes background information on the justices themselves and Barack Obama. The book does not really focus on any "battle" between the Obama White House and the Court as the cover, subtitle, and jacket material suggest. Many of the cases that Toobin actually discusses are Bush-era decisions that are used to demonstrate Toobin's overarching, if simplified, point: the conservative justices, and Justice Roberts especially, are little more than agenda driven shills for big business, the Republican Party, and the Tea Party. This conclusion colors Toobin's discussion of many case outcomes and unfortunately distracts from what is an otherwise very readable and entertaining book. By sticking rigorously to this narrative, Toobin tries to create heroes and villains out of honest people who have to decide difficult cases involving parties that do not invariably represent good vs. evil. The forced narrative combined with Toobin's cursory treatment of cases make for a fine general interest book on the Supreme Court, but readers more familiar with the Court might be underwhelmed by this book's lack of depth.
At times, Toobin also seems to oversimplify (or maybe just misunderstand) legal concepts and arguments. For example on page 39 Toobin remarks on Justice Roberts' discussion of how Justice Rehnquist presided over a Court that eventually focused more narrowly on text and precedent instead of appealing to values, norms, and public sentiment in deciding cases. Roberts called this a "seismic shift" in the method of deciding cases, but Toobin counters that there was no "seismic shift" because the more liberal decisions of the Warren era had not been overturned. But Toobin misses Roberts' point and instead ascribes to him a mission to lead a "counterrevolution." That is a hefty conclusion to draw from an incomplete understanding of Roberts' point. Toobin also misstates the meaning of the term "living Constitution" on page 104 when he argues that Justice Thomas was advocating a living Constitution by arguing that the original meaning of the Second Amendment protects an individual right to bear arms. Original meaning and living Constitution are polar opposite ways of interpreting the Constitution, and Toobin's conflation of the two was surprising and borderline nonsensical. General readers might not notice these subtle points, and Toobin probably knows that, but the overall impression left by these mistakes is that Toobin is a better storyteller than a reliable recorder of Constitutional thought.
2 of 2 people found the following review helpful
on June 23, 2013
Never doubt for a moment that law is at its core politics. If you do doubt it, then read Jeffrey Toobin's latest book, "The Oath: The Obama White House and the Supreme Court" (Doubleday, New York, 2012).
Toobin writes about the high court as well as anyone living. His first book on the court, "The Nine," relied extensively on interviews with court clerks, and, perhaps, the justices themselves.
He returns to those sources in "The Oath" to provide a behind the scenes look at the court's most controversial decisions during the past four years.
If you're like most folks, you think an appeal to the Constitution, like reliance on the Bible, should end any debate.
"The Constitution says ...," we like to say, just as we report on Jesus's utterances as though he were walking among us. But reliance on both the Bible and the Constitution is really the beginning of any debate; just what we are to make of these documents, how we are to read them, is the stuff of both theology and the law.
The high priests of constitutional interpretation are the nine justices of the Supreme Court, each appointed for life, and most serving well into their 80s. They are the final arbiters of what the Constitution means. A political party controlling the appointment of judges can exert great influence on how the document is read and interpreted.
Today's debate on judges pits "judicial activists," judges who "legislate from the bench," unelected elites imposing their values on the rest of us, against originalists, those adhering to the intent of the founders. Or so the argument goes. What if the real activists were those pretending both that the founders' intentions could be readily discerned and that the founders really wanted us to be faithful to their intentions? What if originalism is really just an ideological hoax?
This debate about competing schools of constitutional interpretation pits, in the language of the law's scholars, proponents of "originalism" against the "living constitution."
The bizarre notion that we are to interpret the Constitution as strict textualists bound to the intentions of the framers is largely the brainchild of Justice Antonin Scalia. It serves as the political platform of the Federalist Society, a group which set its sights, a quarter of a century ago, on transforming the judiciary into a group of lifetime appointees dedicated to reading the current values of the Republican Party into the law of the land. It is activism of the highest kind, hoping to eliminate a woman's right to have an abortion, to securing an individual's right to possess firearms, to making public life better reflect the private religious beliefs of those who claim a close familiarity with God's will.
Toobin decodes judicial decisions on such issues as corporate contributions to political advocacy campaigns, health-care reform and immigration reform, into expressions of political or policy preferences by the justices.
A core of four steadfastly conservative justices, Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts, can be counted on to tilt in the direction of Republican windmills; Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg will tilt in the direction of the Democrats.
That leaves Anthony Kennedy, a swing vote, and, in Toobin's view, a man with a vast and somewhat egomaniacal view of his role as a justice, with the enormous power to decide cases by siding with either the conservative or liberal bloc of justices.
A document so clear in its meaning that only those willfully blind can misread it ought not routinely yield 5-4 decisions when put to the test of interpretation.
Toobin ends his book with the following observation, which summarizes things perfectly:
"There was some irony in the conservative embrace of originalism, in insistence by Scalia and others that the Constitution is `dead' and unchanging. With their success, driven by people, ideas, and money, conservatives proved just how much the Constitution can change, and it did. Obama and his party were the ones who acted like the Constitution remained inert; they hoped the Constitution and the values underlying it would somehow take care of themselves. That has never happened, and it never will. Invariably, inevitably, the Constitution lives."
Long live, I might add, the living Constitution.
2 of 2 people found the following review helpful
Journalism, it's been said, is "the first draft of history," but in The Oath CNN and New Yorker correspondent Toobin has created the second draft. While not enough time has passed since President Obama and Chief Justice Roberts botched the administration of the oath of office on Inauguration Day 2009 for a thorough historical study of their relationship, there certainly has been enough time to examine the changing Supreme Court since the time Roberts became Chief Justice of the United States. And it does seem clear from this book that it has created new ways of examining the issue of whether a plaintiff has standing to sue, what the always perplexing Second Amendment allows, and how much of an artificial person a corporation actually is.
Toobin here delves into recent history, providing mini biographies of all the sitting justices, in addition to those of the recent past (O'Connor, Stevens, e.g.), and he gives his analysis and interpretation of recent cases (Heller, Citizens United, Health Care). The author isn't shy about injecting his opinions here, and if one insists upon objective history, this is not the best place to look.
Nevertheless, the author's description of how Obamacare was upheld is incredibly well-done. And I have no dispute with his contention that the Chief Justice in that case did all he could to save not only Obamacare (which he seems to personally disdain) but also the prestige of the court.
The book ends with an epilogue, now irrelevant, which is essentially an apology for not including material on the gay marriage cases, not decided at the time that the book was written, and since they now have been decided, that epilogue might best be removed from future editions.