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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Toobin leaves little doubt of his affection and admiration for O’Connor, whose legacy looms large as the nation’s first female justice. As the former swing vote in the Rehnquist court, she preserved Roe v. Wade in the landmark Planned Parenthood v. Casey decision in 1992. Now, much of her influence stands to be undone by the Roberts court, particularly with Anthony Kennedy as the swing vote and reliably conservative consensus among Samuel Alito Jr., Thomas and Scalia. (O’Connor retired in 2006.) Elsewhere on the court, the political savvy of Elena Kagan and the pluck of the “wise Latina” Sonia Sotomayor serve Toobin as living illustrations of Obama’s legal philosophy.
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"The Oath" serves general-interest readers well, explaining legal precedents and concepts such as originalism and textualism in clear, concise fashion. Toobin does a good job of presenting both sides of these and other arguments, but readers won’t struggle to figure out where he stands on a number of issues as a veteran court watcher.
Of constitutional originalism – interpreting the law as it was originally written and intended by the Founding Fathers – Toobin writes: “There was no one to say that an eighteenth-century document that embraced slavery, that ignored women, and that limited the right to vote was an imperfect guide in resolving contemporary problems.”
Scalia, of course, made originalism a concept to be reckoned with. This influence, particularly with regards to gun laws and campaign finance (the Citizens United case of 2010), lends itself to some of Toobin’s most interesting and important observations of the court’s influence. In the wake of the Newtown elementary school shootings and the inevitable gun law debates to come, this book proves prescient as it shows just how much Americans, and justices, have changed their opinions on the subject.
Forty years ago, the Republican platform supported gun control. Now the Second Amendment and the oft-cited “right of the people to keep and bear arms” passage have, in many cases, muzzled Democrats and other critics. Former Chief Justice Warren Burger, in retirement, called the gun rights movement and its reliance on the Second Amendment “one of the greatest pieces of fraud... on the American public by special interest groups that I have ever seen in my lifetime.”
Burger died in 1995. It would likely shock him to learn that the country’s current president is not just an African-American Democrat but also a politician who has publicly stated his belief in the modern interpretation of the Second Amendment.
No matter where one falls on the regulation of guns or the upcoming court debate and decisions on two same-sex marriage cases, "The Oath" offers invaluable context on the people and precedents setting the national agenda. And, for those who read Toobin’s book in the next few weeks, it will be all but impossible to watch Roberts and Obama on Inauguration Day next month without smiling and wincing at once.
Erik Spanberg is a Monitor contributor.
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