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The Oath: The Obama White House and The Supreme Court Hardcover – September 18, 2012
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Jeffrey Toobin
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Print length352 pages
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LanguageEnglish
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PublisherDoubleday
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Publication dateSeptember 18, 2012
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Dimensions6.46 x 1.24 x 9.49 inches
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ISBN-100385527209
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ISBN-13978-0385527200
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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
From Bookforum
Review
“More than three decades after Bob Woodward wrote The Brethren, Toobin is Woodward’s successor as the chronicler of behind-the-scenes details from the Supreme Court, and the book is a page-turner.”
--The Washington Post
“Toobin is one of the most talented reporters covering American law…Not until scholars a generation hence gain access to the justices’ papers are we likely to have a more useful, or more readable, picture of this oddly assorted group of judges at this moment in history.”
--The New York Times Book Review
“[A] polished and thoughtful dissection of the current Court -- led by Chief Justice John Roberts -- and its high-stakes relationship to the Obama administration. Toobin brings full authority to this project. Deeply versed in Supreme Court lore and legal subtlety, he draws upon first-hand interviews with the justices and their clerks in crafting an anxious tale of the Roberts court, casting its major rulings as looming symbols of judicial philosophy and will. After reading this wise book, one can fairly wonder whether the court, at its conservative core, embodies a brave corrective for the overreach of federal policy, or amounts to a partisan plot against America.”
--USA Today
“Jeffrey Toobin’s book The Oath: The Obama White House and the Supreme Court is for political, and governmental, junkies – those of us who simply cannot get enough of the fascinating interpersonal dynamics that shape so much of what goes on at the top levels of government….Toobin’s [book] would fall into the Robert Caro-Lyndon Johnson category. The “What’s really going on here?” genre of political studies…[The Oath] entertains us and reminds us that it is the interplay between different personalities and agendas that more than any scholarly argument of historical text is often at the heart of the laws we live with.”
-- The Boston Globe
"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…Legal analyst Toobin offers a vivid inside look at the personalities and politics behind the fractious relationship…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."
--Booklist, starred review
"A skillful probing of the often-discordant relationship between the president and the Supreme Court...Shrewd and elucidating."
--Kirkus Reviews
“In The Oath, Toobin—a legal correspondent for the New Yorker and CNN—gives a full account of the current struggle over constitutional interpretation. It’s an artfully constructed chronicle, and Toobin vigorously argues its conclusions. He skillfully interweaves three topics: the leading cases that illustrate the ambition of the Roberts Court; the four appointments since 2006 (Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan) that have turned the court into an institution blatantly divided between five committed Republicans and four committed Democrats; and illuminating sketches of all the justices, including the three recent retirees (Sandra Day O’Connor, David Souter, and John Paul Stevens). For civilian readers, Toobin blends the equivalent of Con Law 101 with terrific political reportage.”
--Bookforum
“A worthy successor to The Nine, The Oath is a work of probity, intelligence and exceptional reporting.”
--Richmond Times-Dispatch
“Toobin, a rare authority who knows how to write, frames President Obama and Chief Justice John Roberts as engaged in a kind of slow-motion showdown, like two men standing on a frontier main street, which ought to get our attention…This is, in short, a book suitable for reading in the study or while sprawled at the beach.”
--Sun Times
“A lucid, lively and astute analysis of the Supreme Court during Roberts' seven-year reign as chief justice. Toobin has the chops (and the contacts) to take readers inside the court, capture the personalities of the justices, and parse the principles at stake in cases involving the right to bear arms, employment discrimination and campaign finance reform.”
--Minneapolis Star Tribune
“Toobin’s exceptionally readable book is more than just an inside look at the largely secretive way the justices operate. He blends strong reporting with a sure historical grasp of the court to present a persuasive argument that the five conservatives who control the court have embarked on a deliberate course to demolish well-accepted precedents on campaign finance, gun control and abortion rights.”
--Columbus Dispatch
“The Oath is the sequel to The Nine, Toobin’s bestselling account of the Rehnquist Court [and Toobin] is a reliable and astute guide.”
--Miami Herald
“Jeffrey Toobin is perhaps the most astute reporter writing about the U.S. Supreme Court. [THE OATH may] eventually as the best book about the court during the opening half-decade of John Roberts' reign as chief justice. The book examines numerous recent rulings in depth, rulings about race-based affirmative action, gender inequality, the right to own guns, the ability to inject religious belief into the public arena, financing of political campaigns and many, many more issues. Toobin does his job well.”
--The Seattle Times
Praise for The Nine
Winner of the J. Anthony Lukas Book Prize
“The Nine not only provides a vivid narrative history of the Court’s recent history, but also gives the reader an intimate look at the individual justices, showing how personality, judicial philosophy and personal alliances can inform decisions that have huge consequences for the entire country . . . Driven by the author’s assured narrative voice, The Nine is as informative as it is fascinating, as insightful as it is readable.”
—Michiko Kakutani, The New York Times
“Smart and entertaining . . . The Nine is engaging, erudite, candid and accessible, often hard to put down. Toobin is a natural storyteller, and the stories he tells are gripping . . . [He] writes about the court more fluidly and fluently than anyone.”
—David Margolick, The New York Times Book Review
“The Nine is the latest, and by far the best [book] . . . about the Supreme Court.”
—Nina Totenberg, NPR
“This is a remarkable, riveting book. So great are Toobin’s narrative skills that both the justices and their inner world are brought vividly to life.”
—Doris Kearns Goodwin
“[An] absorbing group profile . . . [Toobin] deftly distills the issues and enlivens his narrative of the Court’s internal wrangling with sharp thumbnail sketches.”
—Publishers Weekly
“A compelling look at the power and the politics behind the Supreme Court.”
—Booklist
“A major achievement, lucid and probing.”
—Bob Woodward
“Toobin’s sparkling new work is anecdotally rich and clearly written . . . A testimony to [his] skill.”
—USA Today
“Intelligent and even-handed . . . Toobin’s access to the Supremes and their secret little world is phenomenal.”
—Chicago Sun-Times
About the Author
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Product details
- Publisher : Doubleday; 1st edition (September 18, 2012)
- Language : English
- Hardcover : 352 pages
- ISBN-10 : 0385527209
- ISBN-13 : 978-0385527200
- Item Weight : 1.49 pounds
- Dimensions : 6.46 x 1.24 x 9.49 inches
-
Best Sellers Rank:
#941,347 in Books (See Top 100 in Books)
- #415 in United States Judicial Branch
- #423 in Courts & Law
- #1,065 in Legal History (Books)
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The book is also strongly opinionated -- moreso than I expected. He argues forcefully that Roberts came to the court with a "conservative" agenda in mind that was at the root the opposite of conservative. The Roberts court, in his view, was on a mission to overturn much of the law settled by Supreme Court decisions from the New Deal on. Toobin argues this compellingly, and argues that it was a radical rather than a conservative approach. I found his arguments convincing, but his political views are in line with my own. A more conservative -- or more Republican -- reader might find the arguments less convincing. Whether or not you agree, however, this book is well worth reading, both informative and thought provoking.
For all those interested in Supreme Court history and the lives of the individual justice, this is a must read. Toobin also brings to life the manner in which judges are appointed and how one decision, one minor factor can be the deciding factor as to whether or not a person gets a seat on the high court.
I an only look forward to Toobin's next book. And if I had to guess, I would guess that it will be on Justice Scalia.
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.













