Book Review: Jeffrey Toobin's "The Oath."

I am a long-time Supreme Court watcher and analyst and have taught courses on the Court and constitutional issues (e.g. Fourth Amendment, Second Amendment).  I eagerly took up this book.

The book “The Oath,” by Jeffery Toobin, is subtitled “the Obama White House and the  Supreme Court.” 

As the subtitle suggests, this book is primarily about the struggle between  our most liberal President ever, and the conservative faction on the Court, and the struggle between the liberal and conservative factions on the Court.  One faction is the four conservatives on the Court (Scalia, Alito, Thomas and Roberts) who are sometimes joined by Justice Kennedy, who is the Court’s most frequent swing vote.  The liberal faction is Ginsburg, Kagan, Sotomayor and Breyer.  Toobin provides an inside look at both the White House and the Court.  This review will cover only selected points.

Obama has appointed two Justices, both female (Sotomayor and Kagan), and, for the first time the Court has three females, all of whom vote in a liberal direction.  Like all recent  Presidents, Obama sought appointees who share his ideology.  His appointees have not disappointed him.

In terms of qualifications and background, Kagan’s is a very questionable choice.  Kagan had not practiced law  in two decades before being appointed Obama’s Solicitor General.  She had never had a case before the Court.   She had never been a judge anywhere.  She, unlike most recent Justices, had never clerked for a U.S. Supreme Court Justice. Prior to becoming Solicitor General, she had never argued a case in any courtroom.  Her main claim to fame was that she was the first female Dean of Harvard Law School.  Obama wanted her on the Court and his only option was to name her Solicitor General so that she would have at least some minimal qualifications.  Even this appointment was a reach.  Solicitor General frequently had long records of litigation and were active in constitutional litigation (e.g.  Johnson’s appointee Thurgood Marshall).  As has become the case recently with most nominees, Kagan danced around the questions, dodged frequently and was a vague as possible in her confirmation hearing.  In spite of her minimalist qualifications, the Democratic majority in the Senate assured her confirmation.

The book discusses the most controversial cases that came before it, including D.C. v Heller (Second Amendment gives right to individuals), McDonald v. Chicago (Second Amendment applies against the states) Citizens United (First Amendment invalidates portions of “campaign reform” legislation) NFIB v. Sebelius (upholding Obamacare).  Toobin takes the liberal position in all these cases.  Rather than celebrating the strengthening of Constitutional vales and the Bill of Rights in these decisions, Toobin bad-mouths them.   Liberal hypocrisy appears to be at work.    When the liberals lose we generally see accusations of ignoring precedent, ignoring the Constitution, blatant policy- making, etc.   When the liberals win, we generally get praise for the decision.

It is clear to Toobin who are the “bad guys,” on the Court, the four conservatives and Kennedy.  Additional bad guys are the NRA, powerful corporations and the Tea Party.  Obama ‘s policies and the Constitution are often portrayed as the victims of the conservatives on the Court.   Anyone looking for a balanced, sophisticated treatment of the decisions and the Justices will be sadly disappointed.  However, the book is informative about the Court, some of its history, Justices, important cases, etc.  It provides interesting insight into the members of the Court and their interactions.  With these caveats, I’d recommend this book for light reading.