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4.0 out of 5 stars Great Reporting, Questionable Legal Analysis, September 26, 2012
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This review is from: The Oath: The Obama White House and The Supreme Court (Kindle Edition)
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.
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Showing 1-10 of 10 posts in this discussion
Initial post: Sep 27, 2012 11:14:23 PM PDT
Norman says:
Thank you for an excellent review, particularly your knowledge that Mr. Toobin is an adherent of the Critical Legal Studies dogma. That insight connects a lot of dots for me and explains why the book seems so consistently cynical of the Supreme Court.

Posted on Oct 4, 2012 3:36:18 PM PDT
Jason King says:
To believe that the justices' opinions have nothing to do with political ideology is naive. How else do you explain the differences in opinions?

Posted on Oct 4, 2012 6:33:11 PM PDT
H. P. says:
The position of the Crits isn't just that the justices' opinions are influenced by political ideology, it's that it's the ONLY influence. Originalism is a threat to Critical Legal Studies because it purports to replace the narrow, case-by-case political ideology that the Crits argue drives decisions with a broader judicial philosophy that will sometimes lead judges to reach individual decisions that go against their politics. Even if the results in the aggregate are still conservative, that still undercuts the fundamental premise of CLS.

Nor is political ideology the only factor--the application of indeterminate law to indefinite facts can lead two aligned judges to different conclusions.

Posted on Mar 30, 2013 2:28:12 PM PDT
Amy Irene says:
"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."

If you are going to try to sound like the objective and fair person then you have to give all the information. This is what Toobin writes:

"But the Crits, as they were known, practiced a kind of legal realism on steroids, taking an almost nihilistic pleasure in showing the meaninglessness of law." That does not sound like someone who has bought "fully into the theory that all law is merely a vehicle for the application of politics."

Toobin follows a more reasonable and common sense position that, of course, justices' decisions are impacted by their politics. That doesn't mean ALL decisions. But it is ludicrous for anyone to argue that Bush v Gore or Citizens United, even Obama Care, were objective decisions based only on law and not predominately upon politics.

Toobin presents his analysis of the Supreme Court from the human and thus flawed frame of his own view of the world; you do the same, as do I, and as do each of the justices on the Supreme Court.

Posted on Jun 8, 2013 5:24:21 PM PDT
Lloyd says:
"Originalism is a threat to Critical Legal Studies because it purports to replace the narrow, case-by-case political ideology that the Crits argue drives decisions with a broader judicial philosophy that will sometimes lead judges to reach individual decisions that go against their politics". Could you give me a couple of examples where Justice Scalia's decisions go against his politics? Tks.

In reply to an earlier post on Jun 8, 2013 5:35:48 PM PDT
marnic says:
I think Scalia's decisions have always been based on his right-wing politics but I am anxious to know if he ever violated this policy.

Posted on Jun 8, 2013 8:20:28 PM PDT
Last edited by the author on Jun 8, 2013 8:21:04 PM PDT
H. P. says:
The 4th Amendment case, Maryland v. King, released 5 days ago, in which Scalia sided with the defendant. To my knowledge that is the only such instance in the past week.

In reply to an earlier post on Jun 23, 2013 2:10:12 AM PDT
Last edited by the author on Jun 23, 2013 5:41:25 AM PDT
R. Hager says:
The 4th Amendment has libertarian dimensions which appeals to Scalia. The originalist position is of course far stronger than the contemporary view of the Amendment that protects privacy from a tyrannical government, so this decision is not an example of Scalia's originalism contradicting his politics.
On the question of corporate rights that was supposedly involved in Citizens United, those same framers were highly suspicious of corporations, since it was the East India Company with the support of the crown who was seen to have corrupt advantages which they rebelled against. The Tea Party was an act of war against the Company.
More importantly the Court's interpretation of the First Amendment as preventing government from defending itself from the corruption of money in politics is so remote from the framers' thinking about "free speech" as to have been incomprehensible to them. (See Leonard Levey) The constitutional generation allowed punishment of even more types of pure speech that caused recognized social harms than even we do (from tax evasion and insider trading to pimping and espionage, or just being a student while advocating "Bong hits for Jesus" Morse v Frederick). The idea that money invested in influence peddling could become protected speech would have been as bizarre a notion to the framers as it was to the highly conservative court that rejected the idea in 1882. In Ex Parte Curtis, 106 U.S. 371 the Supreme Court ruled 8-1, without even arguing the point, that the power of Congress to prevent political corruption trumps an asserted (by the dissent) first amendment interest in making political donations. An even more conservative court in Burroughs v. United States, 290 U.S. 534, 547-48 (1934) unanimously agreed: "The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress." The Constitution Article I Sec. 4 gives Congress the exclusive power to make laws to protect elections from corruption, and to "judge" compliance with those laws. The idea of an unelected court usurping the power to judge elections would have appalled Madison and moved Jefferson to raise his arm in revolution. On this question like any other constitutional question relating to the infrastructure of plutocracy Scalia remains mute on originalism. His originalism is nothing but a rationalization he uses primarily for social issues as a thin veneer over his political gut views which is what guides his casuistic jurisprudence. Original meaning has always been a tool for interpreting the Constitution, though not always a well-honed one. It has never been used more hypocritically than by Scalia who made an ipse dixit "-ism" of it. Scalian originalism is to jurisprudence what truthiness is to truth.

Posted on Jun 27, 2013 11:54:25 AM PDT
H. P. says:
Saying Justice Scalia's 4th Amendment jurisprudence reflects his libertarian leanings is very different than the position that he acts to advance the Republican parties politics. It is also, I think, impossible to reconcile the idea Scalia's decision-making is a vehicle for his politics with his joining the majority in Perry and his dissent in Kebodeaux this week.

The phrase "preventing government from defending itself from . . . corruption" refutes itself more effectively than I ever could.

In reply to an earlier post on Sep 14, 2013 5:39:01 PM PDT
[Deleted by the author on Sep 14, 2013 5:39:26 PM PDT]
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