[author: Robert Pratter]
The Buffalo News
Barack Obama has already been sworn in twice as president. Some new conspiracy theory? No, but it is part of a true story that opens Jeffrey Toobin's newly published "The Oath."
Prior to the 2008 inaugural ceremony, U.S. Supreme Court Chief Justice John Roberts had decided to administer the presidential oath from memory. His frequent rehearsals had caused Mrs. Roberts to remark that, "At this point the dog thinks it's the president." At the ceremony, Obama prematurely interrupted the expected cadence, throwing off Roberts' timing and causing some minor bumbling before they finished on track.
This kerfuffle led neophyte White House lawyers to recommend that the oath be re-administered to deflect any challenges to the legitimacy of Obama's presidency. Toobin notes that Roberts had not blamed anyone for the mix-up. But he would not read the oath from a script at the redo. Obama supposedly responded, "We're going to do it very slowly." Adding his literary gloss, Toobin writes, "The new president was a polite man, but his remark to the chief justice had an edge."
Toobin uses this anecdote to presage the tension he anticipates between Obama and Roberts. Contradicting Roberts' confirmation hearing testimony, Toobin charges that Roberts is not an "umpire calling balls and strikes," but a partisan committed to achieving a conservative Republican agenda. The Democrats and Obama, says Toobin, have no contemporary agenda on major constitutional issues "other than a pallid embrace of the status quo: preserve Roe (the abortion decision) and affirmative action." Toobin also criticizes Obama's "lassitude" and White House ineptness concerning judicial appointments that have left a record number of unfilled seats on the federal bench.
When he wrote "The Nine" in 2007, Toobin, himself a lawyer, lamented the conservative shift taking place on the Court. Nonetheless, Toobin concurred with the observation of Judge Richard Posner of the Seventh Circuit Court of Appeals that, "It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly."
Five years later, "The Oath" abandons this admonition and attacks the result and legal reasoning of Supreme Court decisions supporting an individual right to bear arms, upholding the partial birth abortion ban, and denying an equal pay claim on the basis of the statute of limitations. Like many media commentators, Toobin reserves his greatest outrage for the 2010 majority decision in Citizens United striking down federal limitations on union and corporate independent electioneering expenditures. Toobin further levels the unconvincing accusation that the chief justice had engineered the result solely to advance Republican interests.
White House political operatives were enraged with the decision. Obama took the unprecedented step of openly criticizing the Supreme Court in his 2010 State of the Union address, including the dubious assertion that Citizens United permits foreign corporate political contributions in U.S. elections. State of the Union attendee Supreme Court Justice Samuel Alito, unaware that he was on camera, shook his head and murmured, "Not true."
Chief Justice Roberts later tried to play down the incident. However, he observed, "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court—according to the requirements of protocol—has to sit there expressionless, I think is very troubling."
But the White House did not see it that way, and Toobin writes with a flourish, "The conflict between the White House and the Court was now out in the open."
The book climaxes with the anticipated gunfight at the OK Corral over the Affordable Care Act, Obama's health-care program. The White House, Toobin and other similarly minded Court watchers had dismissed the constitutional heft of lawsuits challenging the act. But, after the first day of oral argument, Toobin blogged in anguish, "This was a train wreck for the Obama administration. The law looks like it's going to be struck down."
"The Oath's" rigid characterization of Roberts as an unfailing Republican operative and Toobin's doleful predictions of defeat were wrong. Toobin surmises that Roberts had initially agreed with Justices Kennedy, Clarence Thomas, Antonin Scalia and Alito that the act was unconstitutional. However, as Roberts was drafting what would be the majority opinion, he supposedly changed course. He concluded that the insurance mandate was unconstitutional under the Commerce Clause, but reasoned that Congress could create a "penalty" under the taxing clause for being uninsured.
Justices Stephen Breyer, Ruth Bader-Ginsburg, Sonya Sotomayor and Elena Kagan grabbed onto the "tax" life preserver and the mandate was saved. However, Roberts and six other justices (including Breyer and Kagan) invalidated the law's Medicaid expansion provisions as impermissible federal coercion of the states.
Adding narrative color, Toobin writes that when the decision was announced the justices "looked as they had never appeared before: haggard, exhausted, spent. Even these tortured visages could not prepare anyone for the sound of John Roberts' voice. The brisk mid-western confidence was gone, replaced by a mournful near whisper. This was unpleasant duty for him."
It is inconceivable that Roberts shared his personal emotions with Toobin. But, there is merit to Toobin's conclusion that the "result and opinion were for Roberts and the conservative cause generally acts of strategic genius." Emulating Chief Justice John Marshall's 1803 opinion in Marbury v. Madison, Roberts nimbly sidestepped a divisive political battle while exercising the Court's constitutional authority to narrow Congressional power to enact legislation under the Commerce Clause and to defend state rights under principles of federalism.
Toobin notes that Obama and the Democrats may come to rue their victory because of these limiting constitutional principles, but he predicts, perhaps naively, that Roberts has insulated the court from Democrat attack in the 2012 election and gained political elbow room for rulings in future cases. Toobin writes in a conversational style featuring insider trivia and considerable knowledge of the Supreme Court based on interviews with unnamed justices and law clerks. Fact-checking many of Toobin's assertions and his predictable portraits of the justices therefore is not possible. Like many popular books about the court, it skips over the bulk of the court's work in cases involving important substantive and procedural issues and resolving good faith legal conflicts among Circuit court decisions. These may be subjects more suitable for law reviews, but public understanding of the court and the federal judiciary suffers if the mass media do not offer the whole picture.
For example, it would likely surprise many to know that 44 percent of the court's decisions in 2011 were unanimous, another 36 percent had margins of 6-3 or greater, and only 20 percent had a 5-4 split. Toobin is correct that the Supreme Court Justices hold different judicial philosophies and views of the Constitution, but it does the court and the country a disservice to label their work as "Republican" or "Democrat." As with any venerable institution, there may be internal differences within the Supreme Court, but Toobin steps over the line in advancing the hypothesis that this is a case of politics with a capital "P."
Robert L. Pratter grew up in Buffalo and now practices law in Philadelphia. He is a graduate of Yale University and the University of Pennsylvania School of Law.