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.
(Doubleday) - “The Oath: The Obama White House and the Supreme Court” by Jeffrey Toobin
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.”
These books offer keen insights into leadership and management challenges, which on a day-to-day basis can bring their own dramas, twisting plot lines and, in this city, political intrigue.
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