The Brooklyn Rail

NOV 2012

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NOV 2012 Issue

Holding Court

Jeffrey Toobin
The Oath: The Obama White House and the Supreme Court
(Doubleday, 2012)

Last month, the U.S. Supreme Court began its 2012 term. This month, Americans will decide whether President Barack Obama gets a second term in office. So Jeffrey Toobin’s latest effort, The Oath: The Obama White House and the Supreme Court, could not be more timely. But Toobin starts off at the beginning, in the first few moments of Obama’s presidency, when Chief Justice John Roberts bungled the oath of office. A confusing moment for both men, this interaction serves as a launching pad for Toobin’s examination of the Supreme Court during Obama’s tenure in the White House.

Obama and Roberts have a few things in common: both are Harvard University Law School graduates who worked at the school’s vaunted law review; both are 50-something family men with two children; and both are known for their intellectual capabilities and charm.

But Toobin contends that it is Roberts, not Obama, who is the visionary. “It was John Roberts who was determined to use his position as chief justice as an apostle of change,” Toobin writes. “He was the one who wanted to usher in a new understanding of the Constitution, with dramatic implications for both the law and the larger society.”

Obama, meanwhile, believes the role of the courts is to uphold existing rights, not advance new causes. Obama chose a career in politics, not the law. “For someone like Obama, who had spent years working on the real-world problems of poor people in Chicago, theories untethered to reality had no appeal,” Toobin writes.

But this book isn’t really about Roberts and Obama. Like The Nine, Toobin’s 2007 book about the Supreme Court, it is a behind-the-scenes examination of several major cases to hit the high court docket in recent years, as well as the justices who shaped the outcome of gun control, election financing, and healthcare reform.

Not only does Toobin display his exacting and excavation-like reporting (“At 1:18 p.m., Obama entered Room 450…”), he also picks up familiar themes from his earlier work, namely the conservative takeover of the Supreme Court bench and the influence of biography and temperament on the justices’ legal philosophies.

A New Yorker staff writer, CNN legal pundit, and Harvard Law grad himself, Toobin excels at providing juicy insider details and condensing complicated case law into straightforward narrative. He can turn a thorny legal dispute into a (particularly dorky) Hollywood thriller.

Witness the five-word email that Justice Elena Kagan, then Obama’s Solicitor General, composed to extract herself from deliberations on the Administration’s healthcare proposals—a decision that ultimately allowed her to vote to uphold the Affordable Care Act. (The message, “You should do it,” instructed then Deputy Solicitor General Neal Katyal to attend the meetings in her place.) Or retired Justice David Souter’s accusation that his colleagues abandoned judicial protocols in their initial (and never published) opinion in the Citizens United case. Or Justice Stephen Breyer’s contribution to the Supreme Court’s cafeteria: “In his characteristically earnest way, Breyer spearheaded the introduction of wrap sandwiches.”

In the most convincing section of the book, Toobin examines the nation’s changing views on gun control through the lens of District of Columbia v. Heller, a 2008 decision that overturned Washington, D.C.’s ban on personal handguns. Heller marked the first time the Supreme Court found that the Second Amendment grants individuals the right to bear arms—a ruling that Toobin handily reveals to be “the culmination of a political, legal, and public relations offensive that was many years in the making.”

The majority opinion, written by Justice Antonin Scalia, also highlighted the wide acceptance of an originalist and textualist reading of the Constitution, using the intentions of the framers and the document’s exact words as guides. (Toobin is no fan: he repeatedly points out that it is not only impractical to apply 18th-century thinking to today’s world, but also that the framers themselves disagreed on their intentions and used language vague enough to be elastic.) “When Scalia was appointed to the Court, 20 years earlier, there was simply no way that an argument would have dwelled at such length, and in such detail, on the text of the amendment or the intentions of the framers,” Toobin writes.

The discussion of Heller bolsters Toobin’s broader argument: that it is the court’s conservative wing—not its more liberal members—that has forsaken judicial restraint and overturned Supreme Court precedent at an alarming pace.

But Toobin doesn’t simply see ideological clashes. He sees the justices as political figures, actively advancing Republican or Democratic agendas. For example, “Citizens United was a case about Republicans versus Democrats,” he writes. “As the chief justice chose how broadly to change the law in this area, the real question for him was how much he wanted to help the Republican Party.”

In a follow up case to Citizens United that dealt with Arizona’s public election financing system, “the chief justice was doing the bidding of the contemporary Republican Party … while Kagan [who wrote a dissent] was speaking for the Democrats.”

This is a shaky argument for several reasons. (In parts, it is also a rehash of The Nine, with Justice Anthony Kennedy once again cast as the unpredictable globalist, Breyer as the even-keeled pragmatist, and Scalia as the wisecracking champion of a dead Constitution. But do we really need to know what Sandra Day O’Connor has been up to since leaving the bench in 2006?) For one, this vision of the justices seems to disregard the many cases they hear that never touch on gun control or abortion or civil rights—not to mention the way long-running lawsuits can spawn multiple overlapping concurrences and dissents. It’s not so much red and blue as a kaleidoscope of purples.

Indeed, the argument is belied by the court’s decision in National Federation of Independent Business v. Sebelius, otherwise known as the blessing of Obama’s healthcare legislation. Roberts reached a canny compromise, upholding the law through Congress’s taxing authority, without broadening Congress’s powers under the Commerce Clause. But Toobin sees this as calculated as well, buying Roberts “enormous political space for himself for future rulings.”

Perhaps Toobin is correct. Perhaps the justices are just as politically driven as the presidents who appointed them, jockeying for votes and trading influence like the most craven politicos.

After all, the influence of Souter, O’Connor, and Justice John Paul Stevens—a trio of Republican appointees who, to varying degrees, adopted liberal readings of the law—is fading. The confirmation process for new justices now centers entirely on a candidate’s ideology, effectively barring nominees from academia, public service, or other realms where they may have embraced unpopular views. (Kagan, a former solicitor general and law school dean, is a notable exception.) And in many parts of the country, judges are elected just like city council members.

This year, the high court will likely rule on a number of divisive issues, from affirmative action to voting rights to, possibly, gay marriage. Unlike members of Congress, the nine men and women of the Supreme Court have limited control over what issues they address. They can’t shape the facts of a case like the words in a piece of legislation, nor abstain from taking a stand on contentious topics. They are forced to vote one way or the other—and explain their reasoning.

In exchange, they get a lifetime appointment. No campaigns. No fundraising. No party affiliation. Could this be enough to steer clear of Washington’s partisan gridlock? Let’s hope so.


The Brooklyn Rail

NOV 2012

All Issues