Book review: ‘The Oath: The Obama White House and the Supreme Court’ by Jeffrey Toobin
By Jeffrey Rosen,
Only three months after Chief Justice John Roberts cast a tie-breaking vote to uphold the Affordable Care Act, Jeffrey Toobin has produced “The Oath,” an account of the conflict between the Obama White House and the Supreme Court. Toobin’s sources, like his timing, are impressive. Based on his “interviews with the justices and more than forty of their law clerks,” the book offers a compelling narrative of the early years of the Roberts court, which produced a series of 5 to 4 decisions that pitted the Obama administration against the conservative justices.
The cases involved gun rights, gender discrimination, campaign finance and finally health-care reform, on which the chief justice broke ranks with his conservative colleagues. 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 many pleasures of “The Oath” come not from scoops about how cases were decided but from human details about the justices and their interactions with the White House. The book begins with an account of Roberts’s flubbed administration of the oath of office at President Obama’s inauguration, and we learn that the perfectionist Roberts, who had memorized the oath and was thrown off by Obama’s timing, supported the surprise request by the president’s lawyers for a do-over. (“I always believe in belt and suspenders,” Roberts told Greg Craig, the White House counsel.)
When Obama visits the court for a social call before the inauguration, Justice Anthony Kennedy invites him to play basketball on the “highest court in the land,” and Obama replies, “I hear that Justice Ginsburg has been working on her jump shot.” And just before she leaves the court, according to Toobin, Justice Sandra Day O’Connor tells JusticeDavid Souter, as they stand outside her chambers, “What makes this harder is that it’s my party that’s destroying the country.”
But Toobin aspires not merely to provide a colorful story but to defend a thesis about what he calls the competing visions of Roberts and Obama. After describing what the two men have in common (“powerful intellect and considerable charm. . . . Both were products of Chicago and its environs, and both were graduates of Harvard Law School”), Toobin argues that “the most important difference between the two concerned the work of the Supreme Court” and the meaning of the Constitution. “One believed in change; the other in stability; one looked forward; the other harkened back.” Then the punch line: Contrary to expectations, Toobin suggests, “it was John Roberts who wanted to use his position as chief justice as an apostle of change” and Obama who was the constitutional conservative.
Toobin presses this thesis throughout the book, but it’s too stark to be entirely convincing. It’s true that Obama has criticized the progressives of the 1960s for relying on the courts, rather than the political process, as the primary vehicle of social change. But it’s too simplistic to say that Obama thinks “the courts were (or should be) static in their protection of basic rights, but he was not going to push judges and justices to create new ones.”
In fact, as Toobin acknowledges at the end of the book, the president’s support for gay rights and same-sex marriage is an exception to this pattern. He even overruled his then-solicitor general, Elena Kagan, when she insisted that lower courts were wrong, on constitutional grounds, to strike down the “don’t ask, don’t tell” policy banning gays from serving openly in the military.
It’s also too stark to say, as Toobin does, that in the 1960s, “it had been Democrats who were the activists, striking down laws that were not to their liking. Now it was the Republicans.” In fact, Democrats in recent years have urged the court to strike down plenty of laws, from federal statutes defending traditional marriage and banning partial-birth abortion to state laws on displaying the Ten Commandments. Although Republicans care more intensely about the courts at the moment, Democrats are hardly consistent apostles of judicial restraint.
Toobin presents Roberts, but not Obama, as a constitutional partisan, determined to advance the interests of his political party by any means necessary. The biggest scoop in the book relates to the Citizens United campaign finance case, which said the First Amendment prohibits restrictions on corporate spending in elections. Toobin reveals that Roberts originally drafted a narrow opinion that held simply that the McCain-Feingold Bipartisan Campaign Reform Act did not apply to Citizens United, the group that produced a documentary critical of Hillary Rodham Clinton. But Kennedy wrote a broader opinion insisting that the court should go further and overturn McCain-Feingold’s restrictions on corporate spending.
What should we make of this useful information? “At its heart, Citizens United was a case about Republicans versus Democrats,” Toobin writes. “So, 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. Roberts’s choice was: a lot.”
This is overstated on several levels. In fact, there were plenty of civil libertarian liberals — such as First Amendment advocate Floyd Abrams and former Stanford Law School dean Kathleen Sullivan — who joined Republicans in opposing the Bipartisan Campaign Reform Act as a violation of the First Amendment. Furthermore, as liberaland conservative bloggers pointed out after Toobin excerpted his discussion of Citizens United in the New Yorker, Roberts’s decision to hold the case over for reargument and to assign the majority opinion to Kennedy was hardly an act of deviousness or “another brilliant strategic move by the Chief,” as Toobin puts it. Instead, after the other conservatives rallied to Kennedy’s broader opinion, Roberts had little choice.
If Toobin were less interested in painting Roberts as a constitutional radical and Obama as a constitutional conservative, he might have explored the subtler and more complicated similarities between the two men. Both came to Washington pledging to overcome entrenched partisan divisions, but both found their goals to be uniters rather than dividers more difficult to achieve than they had imagined. At the beginning of his tenure as chief justice, Roberts said he would make it his mission to persuade his colleagues to avoid 5 to 4 decisions along partisan lines. Instead, he said, he would try to compel them to put the institutional legitimacy of the court above their own partisan agendas.
As it turned out, Roberts had mixed success in this, and he presided over a series of 5 to 4 decisions in cases from affirmative action to partial-birth abortion. But when it came time to cast a vote in the defining case of his still-early career, he did precisely what he said he wanted to do. He put the institutional interests of the court above his ideological inclinations and cast the tie-breaking vote to uphold health-care reform. Roberts recognized that to strike down the centerpiece of Obama’s domestic agenda along party lines, five Republicans against four Democrats, would create an impression of partisanship from which the court could not easily recover.
About the Affordable Care Act case, Toobin has no notable scoops. Building on earlier reporting by Jan Crawford of CBS News, he writes that Roberts, having initially decided to strike down health-care reform as an overly expansive reading of Congress’s power to regulate interstate commerce, began to have second thoughts in May of last year. But Toobin offers no insight into why he changed his mind, except for the suggestion that “by demanding that Roberts kill off the entire health care law, [his conservative colleagues] prompted him to look for some kind of middle ground.”
In fact, Roberts was acting very much in the spirit of his hero, Chief Justice John Marshall, who was always willing to engage in what his rival Thomas Jefferson called legal “twistifications” in the service of his broader goal of shoring up the court’s institutional legitimacy.
Toobin concludes that “even after the health care case,” Roberts “remains a skilled and powerful advocate for the full Republican agenda.” But by taking more seriously the kind of chief that Roberts said he wanted to be, rather than painting him as nothing more than an agenda-driven Republican, Toobin might have cast more light on the most important decision of Roberts’s tenure.
What about the relationship between the court and the White House in the future? If Obama is reelected, Roberts will have to continue to work with four other conservatives and four liberals for the foreseeable future. But having broken ideological ranks in the health-care case, he may also feel freer to confront Obama on issues the administration cares about, including affirmative action and voting rights.
If Mitt Romney is elected, by contrast, he may have the chance to replace a liberal justice with a conservative one. The strong 6-3 conservative majority that would result might diminish Roberts’s incentives to compromise with the liberals. The dramatic transformation of the law that could follow — beginning perhaps with the overturning of Roe v. Wade — could vindicate Toobin’s portrait of Roberts as a conservative with an agenda.
If ultimately “The Oath” doesn’t give a nuanced explanation of the motives and perspectives of the conservative justices, it does provide a smoothly professional narrative and plenty of entertaining details. It’s a more partisan book than “The Brethren,” but perhaps that’s inevitable since, as Toobin vividly demonstrates, we live in more partisan times.
Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of the New Republic. He is a co-editor, with Benjamin Wittes, of “Constitution 3.0: Freedom and Technological Change.”
THE OATH The Obama White House and the Supreme Court By Jeffrey Toobin Doubleday. 325 pp. $28.95