Sept/Oct/Nov 2012

Revolution Nine

Jeffrey Toobin reports on how the Roberts Court has recast the interpretation of the Constitution

Jack Rakove


At first glance, The Oath seems to be a curious title for Jeffrey Toobin’s battlefield account of the current state of constitutional combat in the United States. Toobin opens his book with Greg Craig, President Obama’s first White House counsel, spending his first full day in office fretting whether it really mattered that US Supreme Court chief justice John Roberts had slightly misstated the presidential oath of office at the inauguration the day before. To those who knew the oath—as Roberts manifestly did—something did sound wrong when he stumbled over the proper placement of the word “faithfully.” But was the glitch legally consequential? Could ingenious litigants later file a suit because the president had failed to recite the constitutionally prescribed oath correctly? That’s what Craig worried about, and eventually the chief justice returned to the White House that evening to do the oath one more time.

Yet the oath has a substance beyond legally qualifying a president for office. In the part that both Roberts and Obama got right, the president swears to “preserve, protect, and defend the Constitution of the United States,” and then adds the extraconstitutional “So help me God” that has become part of the ritual. (I personally pray for the day when a president will have the chutzpah to leave the deity out of the occasion.) But what, exactly, is the Constitution that the president swears to preserve, protect, and defend—and that the justices, and other federal officials, similarly promise to “support and defend . . . against all enemies,” while professing their “true faith and allegiance” to the document? Swearing fidelity, except during the Civil War, has never been a great problem. Figuring out what the Constitution means, in its greater and lesser details, is another, far more demanding challenge.

In The Oath, Toobin—a legal correspondent for the New Yorker and CNN—gives a full account of the current struggle over constitutional interpretation. It’s an artfully constructed chronicle, and Toobin vigorously argues its conclusions. He skillfully interweaves three topics: the leading cases that illustrate the ambition of the Roberts Court; the four appointments since 2006 (Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan) that have turned the court into an institution blatantly divided between five committed Republicans and four committed Democrats; and illuminating sketches of all the justices, including the three recent retirees (Sandra Day O’Connor, David Souter, and John Paul Stevens). For civilian readers, Toobin blends the equivalent of Con Law 101 with terrific political reportage.

For serious court watchers, however, The Oath offers little that is new, and one of its opening premises is subject to challenge. Is it really true, as Toobin asserts, that “terrorist attack, economic calamity, and several wars” will prove less decisive in shaping the country’s fortunes than the high court will—or that its decisions “will have greater sway than either the executive or the legislative branches of government”? Consider one famous counterexample: Everyone agrees that Brown v. Board of Education was the court’s greatest decision, but anyone telling the history of desegregation would finally have to accord far more importance to the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the recognition by the Kennedy-Johnson administrations that the South really needed a second Reconstruction.

Yet even if one balks at Toobin’s depiction of the court as the oracle of America’s constitutional faith, The Oath delivers a bracing survey of the court’s key decisions and divisions. Toobin’s story has two essential twists. The first is that one side is far more committed to waging the current constitutional struggle than the other. The aggressive partisans are the Republicans with their five-vote majority on the Roberts Court. On the other side are the Democrats, mounting a lackluster defense along a Maginot Line of well-tested doctrines against the panzer attacks of Republican jurisprudence. The second twist involves the irony of determining who is radical and who is conservative in these debates; who the judicial activists, who the advocates of legal stability. One side in this struggle “believed in change,” “looked forward,” and possessed a “visionary” sense of what constitutional law should become. The other emphasized “stability,” “harkened back” to precedent, and was legally “conservative.” The surprise, of course, is that it is the Republicans who are the activists, challenging every doctrine and precedent that displeases them, while dispirited Democrats assume that the dominant values of the past should provide the enduring foundation of constitutional law. That past was set three-quarters of a century ago. In 1937–38, the early New Deal Court announced two major changes in its jurisprudence. First, it essentially got out of the business of telling Congress when it could or could not legislate under the Commerce Clause of the Constitution. Second, in the famous footnote 4 of Carolene Products v. U.S., the court announced that it could still continue to act vigorously in monitoring legislation affecting the rights of “discrete and insular minorities”—initially unpopular religious dissenters, notably Jehovah’s Witnesses, but prospectively racial minorities as well. The Democratic justices cling to those values; the Republicans hope to invert them.

The real drama of the book, though, pivots on the latent conflict between Roberts and Obama, the two stellar Harvard law grads, each committed to his agenda. Here, again, Toobin outlines a crucial asymmetry. Roberts “towers above his colleagues, conservative and liberal alike, in savvy, intelligence, and understanding of the place of the Supreme Court.” That was evident, Toobin believes, in June’s health-care decision. Roberts’s decision to accept the legitimacy of the individual mandate on the basis of the congressional tax power not only sparked the usual vitriol from the right-wing press; it also provoked the visibly bitter disappointment of his four conservative brethren, some of whom may even have been leaking to the press. (Toobin’s sketches of the conservative justices are a high point of the book, particularly his portrayal of Antonin Scalia’s naked partisanship and Anthony Kennedy’s specious intellectual “arrogance,” which allows the judicial sage from Sacramento to get “seventy-five years of constitutional law precisely backward,” or to suggest that eliminating one provision of the Affordable Care Act would be “a more extreme exercise of judicial power than to strike the whole.”) But Roberts is playing a long game, and understands that protecting the court from a frontal challenge to a president’s major piece of legislation in an election year is a tactical retreat with strategic benefits.

As Toobin makes clear from the other major decisions he examines, the Roberts Court does not practice the judicial doctrine its chief preaches. That doctrine is not the disingenuous metaphor he used during his confirmation hearings, when he described judging as being equivalent to umpiring baseball. It is instead embodied in a more principled phrase that Roberts likes: “If it is not necessary to decide more, it is necessary not to decide more.” This was clearly not the reasoning that the court’s conservative majority applied in its landmark 2010 Citizens United ruling, when it elected to transform what might have been a modestly framed issue about the speech rights of corporations and reversed a century of legislation and judicial precedent to release the Koch brothers and the Sheldon Adelsons of the land on the body politic.

The other big player in this game is, of course, Barack Obama. The president remains, in Toobin’s telling, the mysterious leader who puzzles his supporters. There is no question that Obama’s intelligence equals Roberts’s. However one grades Obama in some matters of political judgment—not least his strange belief that he might lead us to an era beyond raw partisanship—his analytical intelligence is exactly what observers always held it to be, and it is clearly steeped in the questions of constitutional law he once taught at the University of Chicago. But the president’s capacity to play the chief justice’s long game is another question. For one thing, where Roberts has one main objective, Obama has many. Worrying about the constitutional battle amid his broader political struggles is rarely a top priority for the president. Obama did very well by nominating Sotomayor and Kagan to the court, but Toobin is critical of his generally lax approach to judicial appointments. This inattention, Toobin notes, might well stem in part from the White House counsel’s office, but it also reflects a broader lack of presidential interest—one more of those Obama omissions that continue to mystify his admirers.

The Oath also ably takes in much of the judicial landscape beyond the court’s dustups with the Oval Office. Toobin’s concise treatments of the leading cases that have forged the court’s outlook over the Obama-Roberts era give lay readers all the background required in order to grasp their doctrinal significance. (I am duty bound to note that Toobin gives this reviewer a nice paragraph relating to an amicus curiae brief I wrote on D.C. v. Heller, the court’s big Second Amendment case of 2008.) It is true that his accounts of the recent Senate confirmation fights for high-court nominees can feel a bit pro forma (perhaps that is because many of us find these performances so disappointing). On the other hand, Toobin’s sketches of the justices are fabulous, not only in capturing their quirks of personality and ideology, but also in bluntly measuring their strengths and weaknesses. Justice Ginsburg comes off particularly well, especially in Toobin’s treatment of Ledbetter v. Goodyear Tire & Rubber Co., the 2008 sexual-discrimination case in which she helped convert a narrow-minded defeat in the court into a legislative victory in Congress. Toobin also supplies revealing accounts of how the three retired Republican justices (O’Connor, Souter, and Stevens) now view the court—and particularly of their dismayed perceptions of where Roberts is taking it.

The Oath thus reminds us why Jeffrey Toobin is now the nation’s leading legal journalist. He clearly outlines the stakes behind the court’s tactical alliances and jurisprudential shifts, even if he sometimes overestimates the justices’ true influence and power. Still, Toobin stops short of pursuing the more difficult and troubling questions that his stories illustrate. Those questions transcend his analysis of the strategy of Roberts and his four allies or the inability of the Democrats to show the same resolve, say, that FDR and the New Deal justices he appointed after 1937 mustered. At bottom, the skirmishes fought in and around the court concern the Constitution itself—the document that the president and the justices are sworn to defend. If we step away from the constitutional drama of the moment, we should see that the structure of the Constitution is as much at stake as the rivalry between the president and the chief justice.

The whole premise of Article III of the Constitution is to create an independent judiciary by allowing judges to serve during good behavior. In the abstract, the framers’ theory seems sensible enough: Give judges life tenure, and do not allow them to be impeached over their rulings, and one will have an impartial judiciary capable of resolving the ambiguities that can only be “liquidated” (in James Madison’s wording) after laws take effect. In this connection, it’s important to recall that the most intellectually independent judges of the past half century were Republican appointees: Chief Justice Earl Warren, William Brennan, David Souter, and John Paul Stevens.

But life tenure does not necessarily create judicial independence, as the defeated Federalist Party first demonstrated in 1801, by expanding its roster of ideologically loyal federal judges, only to see their seats at the bar removed by the new Republican majority in Congress a year later. If the parties develop mechanisms for testing the political loyalty of potential nominees, as their leaders clearly have, then the courts can be readily packed with judges toeing an unspoken party line. Political insiders can then use every senatorial device available (and Lord knows there are plenty) to stiff the other side. This emerging system of ideological patronage is not perfect—conservatives are still angry at Kennedy over his rulings on abortion and the rights of homosexuals—but it does work reasonably well. And at the highest level, justices now time their retirements to affect the future composition of the court, as if they individually are the stakeholders who should shape our constitutional politics.

The net effect of all these trends is to make the court a fourth political institution of government, along with the presidency and both houses of Congress. If that is really how the system works, with partisan appointments producing partisan outcomes and Justice Scalia becoming (as Toobin justly notes) the Fox News commentator on the court, what good does it do to allow the justices to pretend to be the guardians of the Constitution? Who can plausibly contend that repeated 5–4 decisions on partisan lines create a serious legal basis for respecting the opinion of the court—especially when the court is so willing to capitalize on cases that it wants to exploit?

In his famous essay Federalist No. 78, Alexander Hamilton observed that the courts possess “neither FORCE nor WILL, but merely judgment.” If Toobin is right in The Oath, then Hamilton got it wrong. Will predominates, and judgment lags far behind—even if the chief justice had to use a good measure of it in the health-care litigation to avoid the calamity his conservative brethren wanted to create.

Jack Rakove is a professor of history and political science at Stanford University and the author, most recently, of Revolutionaries: A New History of the Invention of America (Houghton Mifflin Harcourt, 2010) and The Annotated U.S. Constitution and Declaration of Independence (Belknap Press, 2009).

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