by Jeffrey Toobin
A few years back I read The Nine, an interesting book about the Supreme Court and its nine members. Jeff Toobin went into exceptional detail about what made each Justice tick and how that influenced the Court’s rulings. But time marches on, and four of the Supreme Court Justices highlighted in The Nine have died or retired, including Chief Justice William Rehnquist. So we’ve got a new Chief Justice (John Roberts, nominated by Bush to replace Rehnquist in 2005) and a new President (Barack Obama, whom you may have noticed succeeded Bush in 2009). Each has his own ideas about the role of the judiciary in American democracy. The fundamental difference, according to Toobin, is that while Roberts believes that judges can and often should be agents of change in our society, Obama initially believed that elections and lawmaking must be primary in our system.
Shocking, right? The judge thinks judges matter, and the politician thinks politicians matter. According to Toobin, however, Obama’s disdain for the judicial process was a self-inflicted and grievous wound on his own Administration.
For me, at least, how I feel about the Supreme Court pretty much depends on what decisions they’ve handed down recently. Striking down part of the Defense of Marriage Act? Yaaaaaaaay. Striking down part of the Voting Rights Act? Boooooooo. Depending on your own political persuasion, you might disagree with me on one or both of those. I’m pretty sure there’s nobody out there who could agree with every single ruling the Court makes in a year; it’s always gonna be a mixed bag. But if you look carefully, you can see which way the Court is trending, and Roberts has taken the Court in a decidedly conservative direction.
Toobin argues that stare decisis, the judicial deference to precedent, has been taking a major hit on the Supreme Court lately. Though Roberts is no originalist, unlike Clarence Thomas, his Court seems to be ready to throw out precedent on issue after issue, from affirmative action to gun control to campaign finance. This means the Supreme Court has become almost a source of new law rather than an impartial arbiter of justice, which is ironic for two reasons. First, conservatives are generally more likely to decry judicial activism, though they would argue that the real judicial activism happened decades ago and that the Roberts Court is only undoing that damage. Second, John Roberts himself made it clear during his confirmation hearings that he would prioritize moderation, unanimity, and precedent. His Court has done anything but, meaning that while President Obama is spending his time and energy trying to pass new legislation, the Court is quickly, quietly, and unilaterally effecting change in American society.
So that’s kind of the gist of The Oath. Unfortunately, I didn’t really catch on to Toobin’s thesis until I was almost done with the book. While he lays out the fundamental differences and similarities between Obama and Roberts, he kind of splits his time between two stories. One story is about the Obama Administration’s interactions with the courts- filling vacancies, defending federal law- while the other traces the history of the Court’s radical conservative majority. Both stories are interesting, but they don’t always have that much to do with one another. The introduction, detailing the causes and ramifications of President Obama’s botched inaugural oath, was fascinating. It did not, however, say all that much about the Chief Justice’s or the President’s interpretation of the Constitution. Likewise, the conclusion of the book centered on the Administration’s successful defense of the Affordable Care Act, with Roberts writing for the majority that voted to uphold the law. This conclusion doesn’t exactly square with Toobin’s view that the Court is increasingly conservative and political.
Don’t get me wrong, I actually really liked the book. It just seemed to me that Toobin was trying too hard to find a singular narrative to tie everything together. It felt like he was searching for a ‘beginning’ and an ‘end’ to the story. I applaud him for the effort, but he knows that the whole story hasn’t been written yet, and while this is a great start, it’s naturally going to be incomplete. This need for a unifying theme seems especially odd considering that the book is largely composed of several short histories that don’t really fit in with a larger narrative. These vignettes are interesting on its own merits, and Toobin absolutely didn’t need to shoehorn in a completed story structure. But like I said, I give him credit for trying.
The complete history of the Obama Administration’s relationship with the Roberts Court is still at least a few years down the line. Until then, The Oath is detailed, informative, and entertaining, and it’s a great step towards understanding how our executive and judicial branches interact today.