The Oath
New Yorker writer and CNN analyst Jeffrey Toobin offers an astute and thorough analysis of the relationship between the Obama White House and the John Roberts-led Supreme Court.
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(President Dwight Eisenhower, a Republican, nominated Warren, the former Republican governor of California, but, working with William Brennan and, later, Thurgood Marshall, the Warren court embraced a liberal activist agenda that included school desegregation, expanded rights of due process and the privacy ruling that established precedent for Roe v. Wade in 1973.)
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This shifting of roles among Democrats and Republicans gives Toobin room to plausibly, and effectively, characterize Obama, the Democrat who rose to the White House on a campaign of hope and change, as a man of stasis, at least in a constitutional sense. The president, as the book makes clear, seeks to preserve affirmative action, a woman’s right to choose on the issue of abortion and, most notably, the government’s authority to mandate everyone have health insurance.
Obama and other Democrats want to hold the line on the gains made decades ago; their opponents have a much more ambitious agenda. The litmus test for almost any Republican candidate is to reverse Roe v. Wade, to end or severely limit affirmative action, to remove any strictures on gun ownership and so on. Roberts, inheriting the mantle of 30 years of Republican campaigns to shift policy by reinterpreting the constitution, has proved himself a formidable force since becoming the seventeenth chief justice of the United States in 2005. And, as Toobin and many others always mention, at 57, Roberts seems likely to have one of the longest and most influential tenures in the court’s history.
Even in the book’s final section, documenting the Roberts court’s surprising 5-4 verdict last summer to maintain the national health care law, Toobin shows why the decision could ultimately benefit conservatives in the years ahead despite short-term anguish that Obamacare wasn’t reversed. Roberts upheld the president’s signature legislation on the narrowest of reasons, citing the penalty for not having insurance to be a legal example of the federal government’s right to impose taxes. At the same time, by taking a hard line against federal authority over economic regulation (the so-called commerce clause at the heart of the case), “Roberts’s opinion is potentially a significant long-term gain...” Toobin writes.
Portraits of each of the active justices, as well as asides on the living retired Supremes (John Paul Stevens, David Souter and Sandra Day O’Connor), manage to be both fair and revealing. Clarence Thomas emerges as a devoted husband but also a man uninterested and unwilling to associate with anyone who might disagree with him. Antonin Scalia possesses a wicked wit, but, increasingly, has devolved into more of a partisan political commentator at the expense of his vast judicial acumen. (Scalia made news this month after a characteristically snippy exchange with a gay college student during a lecture at Princeton University that found him defending his condemnation of homosexuality.) Still, Scalia can surprise, as in his affectionate relationship with his liberal colleague Ruth Bader Ginsburg and her late husband, Martin.
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