BY JEFFREY TOOBIN
DOUBLEDAY, NEW YORK
2012, 298 PAGES, $28.95
A staff writer at The New Yorker and senior legal analyst for CNN, Jeffrey Toobin has authored six books. One of them, The Nine: Inside the Secret World of the Supreme Court not only made the national bestseller list for four months, it became a New York Times best book of 2008. In The Oath, Toobin approaches the Court much as he did in The Nine: he updates his assessment of the present Supreme Court justices and their contributions to the Court. However, as the title indicates, the book dissects the differences between Pres. Barack Obama and the more-conservative members of the Court, with an emphasis on two cases: Citizens United v. Federal Election Commission (2010) and National Federation of Independent Business v. Sebaelis (2012). The former concerns campaign contributions while the latter involves the Patient Protection and Affordable Care Act (aka ObamaCare).
Although titled The Oath, only in the prologue does Toobin discuss Chief Justice John Roberts' botched administration of the oath when Obama was sworn in as the nation's 44th president. Actually, both men created the problem: Obama's interruption as Roberts read the first line of the oath flustered the Chief Justice. Later, concern about the legality of the way the Chief Justice administered the oath resulted in Obama and Roberts repeating the ceremony at the White House--a first in American history. Toobin uses the oath presentation to frame the several similarities of the two men, "probably the most accomplished of their shared generation." Each possesses "a powerful intellect and considerable charm" However, there are "far more significant differences between them," including their views of the work of the Supreme Court and its current trajectory.
The Oath analyzes interpretations the justices give to the Constitution and how their views influence decisions of the Court. With this in mind, the author examines the constitutional interpretations of Obama and Roberts. Toobin asserts that Obama "bet his presidency on health care reform" and sacrificed every other legislative priority to "drag the Affordable Care Act across the finish line."
The author details how Obama selected Sonia Sotomayor (the first Hispanic on the Supreme Court) and Elena Kagan ("Jewish but not devout"), both with "impeccable credentials." Toobin notes that he and Kagan were classmates and friends at Harvard Law School. Confirmation votes for Sotomayor (68-31) and Kagan (63-37) show how political Supreme Court appointments have become: both should have won "overwhelming Senate confirmation" The days of confirmation with 90-plus votes apparently have ended.
As Toobin discusses Roberts throughout the book, he cites his many positive attributes and notes how Roberts became known "as perhaps the finest Supreme Court advocate of his generation." Determined to use his Chief Justice position as an "apostle for change;' Roberts hoped the Court would "speak more often with a single vote" In recent history, Sandra Day O'Connor or Anthony Kennedy usually determined tied decisions in the Court. Toobin notes "striking differences" in the way the two justices "controlled" cases. …