From the tragedy at Sandy Hook to the Affordable Care Act to same-sex marriage, it looks as though every major news event and issue of consequence these days involves the Supreme Court in meaningful way.
For the longtime court follower Jeffrey Toobin, the timing couldn’t be better for The Oath, his astute and thorough analysis of the relationship between the Obama White House and the John Roberts-led Supreme Court. Fittingly, Toobin, a staff writer at The New Yorker and an analyst at CNN, begins his account with the 2009 oath of office rendered – and botched – by Roberts while swearing in Obama as the 44th president.
The story of the oath ceremony, and a subsequent encore aimed at removing any doubt about the legitimacy of Obama’s presidency, demonstrate the author’s penchant for making a larger point (the strained Obama-Roberts interactions) while offering brisk historical perspective. As for the latter, how many Americans could recall that George Washington never took the oath of office (the Supreme Court didn’t exist at the time) or that Oliver Ellsworth was the first chief justice to handle the task in 1797 (for John Adams)?
Toobin notes that lower-level judges have sworn in several presidents, leaving the chief justice on the sidelines. And, of course, circumstances dictated federal district judges dispense the oath in the cases of LBJ and Theodore Roosevelt, both of whom took office in the wake of assassinations. The anecdotes served up in these pages tend to be gems. To cite one of many examples, Toobin mentions a walk-through a week prior to Obama’s inaugural. An aide offered the chief justice a card bearing the oath, but Roberts demurred. “That’s okay,” he told the aide. “I know the oath.”
Until, of course, he forgot it. Here, too, Toobin provides interesting context, noting that Roberts has earned raves throughout his life for his prodigious memory. Running through specific cases and pivotal moments in the fortunes of the nine justices, Toobin combines contemporary history with a solid primer on how the political divide drives the court and its decisions today. Along the way, he juxtaposes the activist judicial philosophy of Roberts and his fellow conservative Republican justices on the court with a similar approach fostered by liberal Democrats during the 1960s and 1970s, starting with the tenure of Earl Warren.
(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.)
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.
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.
"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.