Book review: ‘The Oath: The Obama White House and the Supreme Court’ by Jeffrey Toobin
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.
(Doubleday) - “The Oath: The Obama White House and the Supreme Court” by Jeffrey Toobin
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.
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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