In this election season, it's worth reminding ourselves that the appointment of Supreme Court justices may be the most profound legacy of any presidency. That's a key subtext of The Oath, Jeffrey Toobin's polished and thoughtful dissection of the current Court — led by Chief Justice John Roberts — and its high-stakes relationship to the Obama administration.
New Yorker staff writer, attorney and CNN analyst Toobin brings full authority to this project. Deeply versed in Supreme Court lore and legal subtlety, he draws upon first-hand interviews with the justices and their clerks in crafting an anxious tale of the Roberts court, casting its major rulings as looming symbols of judicial philosophy and will.
Among the players, President Obama and Roberts are portrayed as men whose surface similarities — both are gifted Chicagoans with Harvard Law degrees — hardly disguise their differences. Obama's mainstream liberalism is offset by Roberts' brainy conservatism, abetted by the four other conservative justices: Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas. These five reflect, in Toobin's words, "the contemporary Republican Party," with its "judicial agenda for change" determined to "end racial preference for African-Americans, prohibit all forms of gun control, welcome religion into the public sphere, deregulate political campaigns, and, above all, reverse Roe v. Wade and allow states to ban abortion." Case in point: the Court's Citizens United decision shattering all financial barriers to political speech, a huge factor in the current presidential campaign.
At the extreme are Thomas and Scalia, whose devotion to the Republican judicial philosophy of "originalism" — interpreting the Constitution as they believe its framers understood it — would, arguably, return the United States to an 18th-century perspective on state vs. federal power. The court's liberal minority — Steven Breyer, Ruth Ginsburg, Elena Kagan and Sonia Sotomayor — embrace a "living Constitution" whose words and values may be interpreted for a changing world. They look to the independent-minded Kennedy and to Roberts, who takes the long view, to moderate the originalists.
It was Roberts, after all, who would not legislate from the bench when he broke from the conservatives and joined the liberals this past summer in upholding the crux of Obamacare: the individual mandate requiring purchase of health insurance. Roberts ultimately decided that the mandate was constitutional under the government's power to tax, though not under the Constitution's Commerce Clause, which allows for broad federal regulation of interstate commerce. Roberts' "vote and opinion in the health care case were acts of strategic genius" that "laid down a marker on the scope of the commerce clause… potentially a significant long-term gain for the conservative movement," Toobin concludes.
The Oath is rich with such complexities, but Toobin maintains narrative momentum with his portraits of each justice, their personal and professional journeys, and the odd chemistry that binds them. Kagan, for example, finds she "liked the guns" when she joins Scalia on hunting excursions, while the arch-conservative Thomas, surprisingly, "paid a lengthy tribute to the way Roberts handled the health care case."
Meanwhile, Toobin faults the president for his "lassitude" in failing to nominate scores of lower-court judges, reducing today's liberal agenda to "a pallid embrace of the status quo: preserve Roe and affirmative action." Yet if, as Toobin muses, a majority of justices agreed with Thomas' absolutist rejection of the Commerce Clause, "Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional."
For his part, Toobin doesn't engage in rhetorical flights, and though there is much here that echoes his 2007 best seller, The Nine, he raises fresh questions about the originalist dogma and Republican fundamentalism of which the Roberts court is a potent avatar. After reading this wise book, one can fairly wonder whether the court, at its conservative core, embodies a brave corrective for the overreach of federal policy, or amounts to a partisan plot against America.