Obama and Roberts embody the larger conflict. They are both honorable and intelligent, but they see the Constitution in different ways. The only certainty in the battle between them is the high stakes riding on the outcome.
Few legal reporters on the scene today are quite as skilled at bringing complex Supreme Court cases and the personalities of the highest court's jurists to life as Jeffrey Toobin, New Yorker staff writer, CNN legal analyst and best-selling author of The Nine: Inside the Secret World of the Supreme Court (reviewed in 2007 here).
In his latest book The Oath, Toobin looks at the the Supreme Court and the presidency, using the mirrored relationship between Chief Justice John Roberts and President Barack Obama as a prism through which the court confirmations of Sonya Sotomayer and Elena Kagan are viewed, along with recent cases and the ongoing struggle over "originalism," a major national ideological struggle that will shape our nation's future for decades.
Roberts and Obama have more in common in Toobin's interpretation than one would suspect from a cursory look from the outside. Both men are products of elite universities and their systems, both are believers in meritocracy, both rose to the top. But as we learn below the fold, the two men have stark differences as well.
And the places where they differ show their own personalities and preferences at work as the two rose to parallel power over the years. According to Toobin, Obama, the constitutional law professor, became convinced over time that judicial activism is not where the action is—the legislative process is.
[B]y the time he ran for president, Obama was above all a politician, and a cautious one. Obama admired the heroes of the civil rights movement, including the lawyers, but he did not model his career on theirs. Obama did not believe the courts were the principal vehicle for social and political change. Elections, rather than lawsuits, were his battlefield of choice.
Much of this was apparent at Harvard Law School, where Obama seems to have honed his "reach across the aisle" attitude, where conservatives on the law review who served with him recognized that while liberal, he would give them a fair shake. Yet, even then, his preference for electoral action was apparent. "Pioneers had used the courts to break down the legal barriers that oppressed African Americans," Toobin writes. "But by the time Obama was at Harvard, that work was mostly done. The task of legal progressives of Obama's vintage was to try to hang on to the gains that had been made in the courts—and that wasn't easy, or of particular interest to him."
To him, the courts were (or should be) static in their protection of basic rights, but he was not going to push judges and justices to create new ones. In this way, Obama differed from both liberal heroes like Thurgood Marshall and conservative icons like Antonin Scalia; they believed that the courts could deliver social change. Obama did not, and this diffidence about the role of the courts shaped his professional life and, later, his presidency.
And then, of course, there is John Roberts, who entered a court in transition, one dominated by the increasingly influential Antonin Scalia and his slavish devotion to advancing "originalism." Toobin makes the point—ironically—that the fabled originalism is really quite a new beast, after all, despite Scalia's and other conservatives' propaganda: "Notwithstanding his denials, Scalia had demonstrated precisely how the Constitution is not dead at all—but a vibrant, living thing. In other words, there was less to the originalism revolution than met the eye. Originalism was no more principled or honorable than any other way of interpreting the Constitution."
Against the backdrop of Scalia's influence, much of the struggle on the Roberts' court is played out, particularly in the questioning of and assumptions about Obama's two nominees to the court, Elena Kagan and Sonia Sotomayor. Toobin does an admirable job narrating their journeys, and he also rises to the occasion of explaining the court's (and conservatives') recent fixation on gun rights. But where The Oath shines is in relating the drama of the Obamacare ruling (while poking fun at himself in a footnote for catastrophizing the performance in real time of the Solicitor General at the time of the oral arguments). He sets scenes, plays out the drama and provides one of the sharpest analyses around of what pushed Roberts into his ruling, namely … overreach:
Scalia's vision of the justices as gladiators against the president unnerved Roberts. A complete nullification of the health care law on the eve of a presidential election would put the Court at the center of the campaign, especially if the majority in the case consisted only of the five Republican appointees. Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral if not its legal authority. As chief justice, Roberts felt obligated to protect the institutional interests of the Court, not just his own philosophical agenda.
Gradually, then with more urgency, Roberts began looking for a way out.
Worried about his own legacy as well as the current "crazy," the chief justice did the calculation, as Toobin relates: "The four conservatives had overplayed their hand with the chief justice. By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground. The liberals, in contrast, welcomed any overture from the chief justice."
Result: Obamacare is the law of the land.
But stayed tuned, Toobin warns. Roberts' ruling may have saved Obamacare, but it opened the door to a chipping away at the Commerce Clause:
Roberts at a minimum laid down a marker on the scope of the commerce clause. As Ginsburg noted in her opinion, Roberts's "rigid reading of the Commerce Clause makes scant sense and is stunningly retrogressive," possibly even auguring a return to the pre-1937 days when the Court invalidated economic regulations with regularity. Roberts's opinion is potentially a significant long-term gain for the conservative movement.
As with Toobin's previous book, The Nine (reviewed at Daily Kos when it came out in 2007), the author leaves you wanting more, waiting for more judicial adventures to unfold, more interpretation, and a further assessment of the pressures shaping the personalities and the institution itself today. Given that Toobin is prolific and staying on top of things both at CNN and the New Yorker, it's a safe bet that The Oath is simply another volume in a wonderfully readable series on the ongoing adventures of the highest court in the land.
Editor's note: This review was originally published at the Daily Kos, which notes that its "content may be used for any purpose without explicit permission unless otherwise specified." The original page can be found here.Like what you read? Subscribe to the SFRB's free daily email notice so you can be up-to-date on our latest articles. Scroll up this page to the sign-up field on your right.