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.

 

Getting Serious about the Justices

Okay, let me get serious for a moment about our Supreme Court Justices. A few serious, but opinionated comments: CJ ROBERTS: A consistently conservative CJ, just like his predecessor Rehnquist. Eminently qualified to be CJ. Although he often has opinion-assigning authority, he doesn’t hog it. At his confirmation hearings he showed great knowledge of the Constitution and was able to charm many of the skeptics. Samuel ALITO: Had trouble coming up with one for him, hence the long reach. In spite of the negative connotation, I was pleased with his nomination and confirmation. He might be one of the few who takes judicial restraint seriously. It’s a big feather in his cap to get authorship of the landmark McDonald opinion. The nickname comes from his tendency to be ruthlessly conservative in his opinions like his namesake was in history as a warrior and ruler. Too much knee-jerk conservatism. On the positive side, without him our Second Amendment rights might still be buried under a liberal smokescreen. Anthony KENNEDY: IMHO, the Justice most likely to be able to rise above ideology to do real judging. I agree with Kennedy more often than any other Justice. As the most frequent swing-vote, one of the most powerful public officials in America. IMHO, he usually gets the big ones right, e.g., Heller, McDonald, Boumediene and the corporate campaign finance case. Probably the closest thing to a real libertarian on the Court. Perhaps a little too conservative when it comes to the rights of suspects and defendant. Antonin SCALIA: The most brilliant, witty, perceptive and overall the best writer and researcher. At one time he was my favorite and I thought he was serious about setting aside ideology. He seems to be have become another knee-jerk conservative. He writes too many nit-picking dissents. However, his brilliance came through in his McDonald concurrence which made mincemeat of Stevens’ dissent. No one on the Court comes close to his intellect, esp. the liberals. Clarence THOMAS: Frequently way out in right-field. Times have changed and precedents have come and gone since the 1800’s. Tends to be a knee-jerk conservative—sometimes an embarrassment. Nickname comes from his tendency to remain totally silent at oral argument. Stephen BREYER: Most transparently aggressive of the left-wing cultural warriors on the Court. Not impressed with his intellect, but am impressed with his creativity. He can find more arguments that have little or no basis in the Constitution, history or precedent to justify his preferred result than any Justice I’ve seen. Over-sized ego. His huckstering of his book is an embarrassment. Ruth Bader GINSBURG: I am impressed with her intellect but not with her knee-jerk liberalism. As for the nickname, check out some of her recent photos. Sonya SOTOMAYOR: Not impressed yet. She will probably turn out to be another knee-jerk liberal. Elena KAGAN: Too early to tell, but given her background and her nominator, she’ll probably turn out to be another knee-jerk liberal. Too much experience in academe, not enough in areas that should count more. Finally, the most recent retiree, STEVENS: another nickname would be John Paul, “Don’t burn that flag” Stevens. Some of his later year opinions were weak. Although not as bad as some of the others, generally a knee-jerk liberal. I’m anxious to hear your opinions on this crew.

Irreverent nicknames for Supreme Court Justices

All right, let’s have a little fun and a few laughs. I know this is irreverent and disrespectful, but I have little respect for any of the Justices. I know the stuffed shirts, and Supreme Court idolaters will not be pleased, but there must be a few people out there with a sense of sarcastic humor. The Justices already have in-court nicknames, but let’s have some fun and make up some new ones. CJ John, “Rehnquist II,” Roberts (or “the Charmer”) Clarence “19th Century” Thomas (or “Big Mouth”) Antonin, “The Originalist,” Scalia (or “the Professor,” “the Scourge” [of oral argument]) Samuel, “Attila,” Alito. Stephen “the Huckster” Breyer Sonya,“Wise Latina,” Sotomayor Elena, “Ivory Tower,” Kagan Ruth Bader, Sourpuss” Ginsburg, and finally, my favorite Justice Anthony “The trapeze artist” Kennedy (or “How much am I bid”) We certainly can’t let Stevens get by even though he has retired: John Paul “way past retirement” Stevens.