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.

 

Obama's Hypocrisy on PAC's, Citizens United and the First Amendment.

Obama openly criticized the U.S. Supreme Court's decision in Citizen's United and the allegedly corrupting and corrosive influences of super PACS. Now he apparently thinks super PACS are OK when they support the right candidates (Obama and Dems).

Brief End-of-Year U.S. Supreme Court Review

As many of you know, a U.S. Supreme Court term starts on the first Monday in October and runs until the Court completes its work the following year. This is usually sometime in June. The Court has already started its 2010-2011 term, but there have been no major opinions released thus far this term. In general, the important opinions are released after Jan. of the new term. Thus, all the important decisions for the 2009-2010 term were released in 2010. Those are the subject of this review. There were two notable victories for the Bill of Rights over government control. For the first time in 40 years or so, the Court held that a provision of the Bill of Rights was incorporated into the due process clause of the Fourteenth Amendment and were thus applicable against the states. This provision was the Second Amendment and the case was McDonald v. Chicago (130 U.SA. 3020). As expected, the liberals lined up against incorporation, the conservatives were for it, and Kennedy provided the swing vote. This is a landmark case for civil liberties in the U.S. It follows on the heels of another landmark case, D.C. v. Heller (2008) which made it clear that the Second Amendment protects individual even though they are not connected to any formal militia. Second was Citizens United v. Federal Elections Commission (130 U.S. 876). This was a complex case. See the link below for more information on this and other cases. The Court struck down some and upheld other restrictions on expenditures, disclosure, etc. In spite of all the rhetoric it was clear that the intent/effect of the law was to give the Left and Democrats an edge in elections. The Court did not say this, but anyone intelligent enough to ask “who benefits” could see this. One of the main purposes of the First Amendment is to protect the “marketplace of ideas,” from government interference. The statutes clearly interfered, and the decision was true to the rationale of the First Amendment. What is ironic and troubling about these decisions is that the usually political roles were reversed. Most liberals screamed like stuck pigs and most conservatives were pleased. Libertarians were overjoyed. Obama publicly criticized Citizens United. Liberals have usually championed incorporation and the First Amendment and conservatives have been more cautious on these issues. The roles were reversed, suggesting that both the liberals and conservatives are not really interested in either the Bill of Rights except when it conforms to their ideology. Only Kennedy seems to be making decisions on the basis of the Constitution, not political ideology. Hypocrisy abounds. For instance the left-leaning ACLU filed an amicus brief in Citizens United that was, in essence asking the Court to not markedly expand First Amendment rights in the case. They filed no brief in McDonald. This is a “civil liberties” organization? Yes, one where left wind ideology trumps the Bill of Rights and Fourteenth Amendment when they don’t like the decision. There were some bad decisions, as usual. I will just mention two and not go into detail. See the opinion or the ACLU summaries of these cases at LINK Left-wing political correctness triumphed over the First Amendment in Ginsburg’s majority opinion in Christian Legal Society v. Martinez (130 U.S. 2971). The Court continued to weaken Miranda rights in Berghuis v. Thompkins (130 U.S. 2250). Overall, it appears to me that the Court is willing to give the government the benefit of the doubt too readily, especially in capital cases. The big news, of course, was the retirement of Justice Stevens and the confirmation of Elena Kalgan to the Court. Stevens, was, in my humble opinion, an ideologue who was more interested in furthering his leftwing policy views than in upholding the Constitution. Kagan can probably be expected to be a knee-jerk liberal. Thus there will be no overall change in the ideological balance on the Court. As is usually the case, Kennedy was, and will continue to be the, the swing vote and thus the most powerful Justice on the Court. Kennedy strikes me as being the Justice who will most likely base his decisions more on the Constitution than on policy preferences. Finally Justice Breyer conducted an embarrassing tour to promote his newest book. Not only did he appear to be more of am egotistical, self-promoting huckster than a Supreme Court Justice, his new book confirms his left-leaning La-La Land approach to the Constitution. In conclusion, beware! Your rights often hang by a single vote on this badly divided Court.

Democratic Congressman want to impeach CJ Roberts over Citizens United Decision

As discussed earlier, in the Supreme Court's (2010) decision in Citizens United, the majority struck down part of the federal campaign finance law on First Amendment grounds. As I suggested earlier, the real purpose of the statute was not to clean up politics but to create an advantage for the Dems and the left. Anytime politicos, on either the left of right, talk about cleaning up politics, you can usually be sure that cleansing is not the real goal. IMHO, The majority decision was consistent with the First Amendment which was designed to keep the government out of the market place of ideas. Another stuck pig is squealing--calling for CJ Robert's impeachment. Haven't heard talk about impeachment of a S.Ct. Justice since the Warren Court days. Now it's the left's ox who is being gored and impeachment talk is back. It would be nice if the politicos could rise above ideology and partisan advantage and provide sincere, balanced support for the First Amend. LINK

Working hard against Citizens United and the First Amendment

Just as pro-lifers worked hard to get around and overrule Roe v. Wade and it’s progeny, others are working to try to get around (and overrule) the U.S. Supreme Court's recent First Amendment decision, Citizens United. LINK I suggest these newest busy bees consider the following: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L. Ed. 1173 (1919) (Holmes, J., dissenting) In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L. Ed. 1213 (1940) This final quote suggests faith in the people to overcome the flaws in the marketplace and reach an enlightened decision. If you don’t trust the average voter, then government intervention to “protect” the public is necessary. I don’t see why we should let government tinker with First Amendment freedoms. It’s like asking the fox to guard the hen house.

First Amendment Hypocrisy: Dems & Citizens Unitied Decision

If it isn’t already obvious, it should be by now why The Dems are against the U.S. Supreme Court's First Amendment decision in Citizens United, and voted for the bill which was partly struck down by the Supreme Court. They are for the First Amendment only when they benefit. "I want you to understand right now all over this country special interests are planning and running millions of dollars of attack ads against Democratic candidates," Obama said at a Democratic fundraiser in New York on Wednesday. "Because of last year's Supreme Court decision in Citizens United, they are now allowed to spend as much as they want, unlimited amounts of money, and they don't have to reveal who is paying for these ads." Source: LINK IMHO anyone who thinks most American’s politicians have any sincere concern about broad-based First Amendment principles beyond self-interest are terribly naïve. Think critically: Who Benefits?