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Review | Power Play: Toobin’s Take on the Rocky Relationship of the Obama Administration and the Roberts Court

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It is not just a title.  It is the beginning for Jeffrey Toobin.  He starts his new book with the oath.  The president's oath, that is:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Actually, Toobin starts one day after, that oath was administered to Barack Obama by Chief Justice of the United States John Roberts.  Thus, Toobin opens his new book, The Oath: The Obama White House and The Supreme Court, on January 21, 2009 with a constitutional question.

The Chief Justice had botched the oath during President Obama's inauguration. (Remember that?)  It makes for a light and entertaining start, but it also presents a constitutional crisis.  Is Obama the president?  Does anyone out there really think he's not the president?

"Out of an abundance of caution," the two men decided to execute a "do-over."

"I absolutely believe in belt and suspenders," Roberts said at the White House, just before he administered the oath for a second time.  "This is absolutely the right thing to do."

Nevertheless, Toobin suggests, the relationship between the Roberts Court and the Obama White House has been tense, if not downright confrontational, ever since.     

I have read all of Jeffrey Toobin's books:  From Opening Arguments: A Young Lawyer's First Case, which is, in part, about an attorney I used to work with in the early days of my career; to The Run of His Life, about the OJ Simpson trial, which Toobin and I covered together (with every other television lawyer in the country); to The Nine, about the inner workings of the U.S. Supreme Court and which many critics call Toobin's finest work.  But my personal favorite, until now, was Too Close to Call

It is an odd choice for a favorite, perhaps.  After all, who wants to tuck in with a book about the tedious topic of the "Tallahassee Recount?"  But leave it to Jeffrey Toobin to make even the counting and recounting of chads interesting.                               

In case you have forgotten, "chad" refers to the tiny paper fragment made infamous after the incalculably close presidential election between then Vice President Al Gore and then Texas Governor George W. Bush.  Back in the year 2000, the state of Florida used Votomatic punch cards.

The result was 175, 037 incompletely punched ballots. That meant no votes cast, but only partially punched cards, with tiny bits of paper — chads — still attached.  The Twentieth Century Votomatic machines couldn't count a chad.        

The result?  A presidential election potentially separated by only a few hundred ballots.   And the Tallahassee Recount:  Five weeks of human eyeballs examining all those:

  • hanging chads (attached to the ballot by a single corner),
  • swinging chads (attached to the ballot at two corners),
  • tri-chads (do I really have to define it?)
  • dimpled chads (a chat that has been punched, but all four corners are still attached), and
  • my favorite reference of all, pregnant chads (a more colorful reference for the "dimpled" chad.

But then, the counting suddenly stopped.  The Supreme Court essentially decided the outcome, instead. George W. Bush would be the 43rd President of the United States.  Al Gore would not. Game over.

Of course, it wasn't quite that simple and entire books were written about Bush v. Gore, but none better than Jeffrey Toobin's for its lucid, yet entertaining examination of that critical moment in jurisprudential history.  Too Close to Call, while it could have been boring, dry, dull, was anything but.  The writing was colorful, insightful and most of all, readable.

Now, twelve years later, different president, different Supreme Court, and Toobin picks up where he left off, with the delicate balance of power between the executive and judicial branches that undergirds our democracy.  He tells this story with the same fluidity and clarity. Yet, Toobin has matured as a writer, using his expert reportorial skills to compare and mostly contrast the leaders of these two branches in the new millennium.  Two of the most powerful men in the world, each in "robust middle age," brilliant and charismatic and each determined to change the course of American history. 

But as Toobin points out at the very start of the book, these men are completely at odds on almost every major constitutional issue.  And contrary to popular belief, it is the Chief Justice who is the activist and President Obama who is the constitutional conservative.  It seems an outrageous premise: Obama a conservative?  Roberts an activist?  Yet, this thoughtful analysis is precisely what makes Toobin the premiere Supreme Court observer of his generation.

As Toobin points out, the battle between the Court and the Executive branch often has been bitter.  But rarely has it been so public.  One example: President Obama's 2010 State of the Union address in which he broke with protocol to criticize the Roberts Court's controversial Citizen's United decision.  That case removed restrictions on political spending by corporations and freed them to flood the airwaves with (anti-Obama) advertising.  Yet, now the two men are linked in history because of Robert's astonishing vote to uphold Obama's controversial Affordable Care Act.

With the election just weeks away, The Oath, could not be better timed.  An Obama victory would mean conservatives could lose their 5-4 majority on the Court, especially given frequent speculation that some of the more senior Justices are likely to step down during the next term.  Meanwhile, the Roberts Court has accepted cases on many issues at the core of the conservative movement.  As Toobin deftly illustrates, never in so short a period have so many issues fundamental to the social fabric of the country come before the Justices:

  • Women's rights
  • The right to bear arms
  • Free speech
  • Church and state
  • The death penalty

Toobin's book comes out the same week we celebrate the 225th signing of the U.S. Constitution.  For all our jingoism in this country, few people took note of that anniversary. The framers envisioned law as having authority apart from politics. They gave Supreme Court Justices life tenure to eliminate the need to curry political favor and ensure their ability to protect minorities from the tyranny of the majority. In law school we learn that our legal system is designed to keep law and politics separate precisely because they are so closely linked in society.

At the same time, we learned that constitutional law is inherently political because it results from choices deeply rooted in social ideas: life, liberty and property (the happiness reference is in the Declaration of Independence, but never made it into the Constitution). So, when the Justices deal with policy issues, the law is inescapably political — which is why decisions split along ideological lines and Justices gain reputations as "liberal" or "conservative."                       

Ergo the brilliance of Toobin's book, at this time.  Among the Court's more than eighty rulings in the last term, 16 were split decisions, 5-4.  In ten of those, the Justices were divided along ideological lines, with Justice Kennedy providing the fifth "conservative" swing vote.

  • In the widely reported Wal-Mart case (which I covered here on WNYC ), the Court made it far more difficult for class action lawsuits to proceed;
  • The Justices wiped out the ability of citizens to hold prosecutors accountable even when they hide exculpatory evidence and send innocent people to prison;
  • They struck down public matching funds in Arizona's campaign finance system. 

The Arizona case reflects the same disdain for laws that provide balance to the unlimited amounts of money flooding the political system that we saw in Citizens United.  Indeed, many court watchers feel all of these rulings and suggest a trending to the right, led by Chief Justice Roberts, with the conservative majority further expanding the ability of moneyed interests to prevail against the interests of consumers and workers, and in electoral politics.                                                                              

Which gets us back to Bush v. Gore. The idealists among us, myself included, believe there remains a faint line between the Court and politics. I can still see that line, despite the decisions that remind me of that dreary December day in Tallahassee when the ballot counting stopped and a Republican-led Rehnquist Court decided Bush v. Gore.                                                                                                                        

When President Obama took office eight years later, he may have thought his greatest obstacle would be an obstructionist Republican led Congress.  Instead, The Oath reveals the greatest threat to the President's agenda is the Roberts led Supreme Court.  In The Oath, Toobin vividly portrays these two dominant personalities as they engage in a political battle to determine the course of American history.