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The Oath: The Obama White House and The Supreme Court

The Oath: The Obama White House and The Supreme Court

3.7 30
by Jeffrey Toobin

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A Washington Post Notable Work of Nonfiction

From the moment Chief Justice Roberts botched Barack Obama's oath of office, the relationship between the Court and the White House has been a fraught one. Grappling with issues as diverse as campaign finance, abortion, and the right to bear arms, the Roberts court has put itself squarely at the


A Washington Post Notable Work of Nonfiction

From the moment Chief Justice Roberts botched Barack Obama's oath of office, the relationship between the Court and the White House has been a fraught one. Grappling with issues as diverse as campaign finance, abortion, and the right to bear arms, the Roberts court has put itself squarely at the center of American political life. Jeffrey Toobin brilliantly portrays key personalities and cases and shows how the President was fatally slow to realize the importance of the judicial branch to his agenda. Combining incisive legal analysis with riveting insider details, The Oath is an essential guide to understanding the Supreme Court of our interesting times.

Editorial Reviews

From the Publisher

"Toobin is one of the most talented reporters covering American law." —The New York Times Book Review

“Deeply versed in Supreme Court lore and legal subtlety, [Toobin] draws upon first-hand interviews with the justices and their clerks in crafting an anxious tale of the Roberts court, casting its major rulings as looming symbols of judicial philosophy. . . . A polished and thoughtful dissection.” —USA Today

“A compelling narrative of the early years of the Roberts court. . . . The many pleasures of The Oath come . . . from human details about the justices and their interactions with the White House.” —The Washington Post

“Anyone fascinated by the inner workings of the highest court in the land will be delighted.” —The Huffington Post

“Not until scholars a generation hence gain access to the justices’ papers are we likely to have a more useful, or more readable, picture of this oddly assorted group of judges at this moment in history.” —The New York Times Book Review

“A worthy successor to The Nine, The Oath is a work of probity, intelligence and exceptional reporting.” —Richmond Times-Dispatch

“Might . . . be viewed eventually as the best book about the court during the opening half-decade of John Roberts’ reign as chief justice. . . . Toobin does his job well.” —The Seattle Times

“Court watchers, serious and occasional, will find Toobin’s explanation of the issues at stake . . . before the Roberts court well worth their time.” —St. Louis Post-Dispatch

“Exceptionally readable. . . . Blends strong reporting with a sure historical grasp of the court.” —The Columbus Dispatch

“An artfully constructed chronicle. . . . The Oath delivers a bracing survey of the court’s key decisions and divisions. . . . Toobin’s sketches of the justices are fabulous.” —Bookforum

“Lucid, lively and astute. . . . Toobin has the chops (and the contacts) to take readers inside the court.” —Minneapolis Star Tribune

“For political, and governmental, junkies. . . . Fall[s] into the Robert Caro–Lyndon Johnson category. . . . Reminds us that it is the interplay between different personalities and agendas that more than any scholarly argument or historical text is often at the heart of the laws we live with.” —The Boston Globe

“A reliable and astute guide through the thicket of legalese.” —The Miami Herald

“Toobin [is] a rare authority who knows how to write. . . . This is, in short, a book suitable for reading in the study or while sprawled at the beach.” —Chicago Sun-Times

“A revealing look at the ideological battle between the White House and the Supreme Court.” —Booklist (starred review)

“A skillful probing of the often-discordant relationship between the president and the Supreme Court. . . . Shrewd and elucidating.” —Kirkus Reviews

Product Details

Knopf Doubleday Publishing Group
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5.34(w) x 7.88(h) x 0.78(d)

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Excerpted from the Hardcover Edition

1. The Politician’s Path

On February 14, 2008, a man named Steven Kazmierczak opened fire on the campus of Northern Illinois University, in DeKalb, Illinois. He killed five people, and injured twenty-one, before committing suicide. The following day, Barack Obama, the junior senator from the state and a candidate for president, was asked about the shooting at a news conference. In light of this tragedy, what did Obama think about the need for gun control, especially as it related to the Second Amendment?

The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” There was and remains unanimous agreement that the text of the amendment is ungrammatical. For more than a century, there was also agreement on what the Second Amendment meant. According to this understanding, the Second Amendment related only to the rights of citizen militias and imposed no barrier to gun control; in other words, the amendment did not give private individuals a right to bear arms.

Obama had a different view.

“I believe that the Second Amendment means something. I do think it speaks to an individual right,” Obama said at his news conference following the massacre. “There’s been a long-standing argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument,” he went on. “There is an individual right to bear arms, but it is subject to common-sense regulation just like most of our rights are subject to common-sense regulation. And so I think there’s a lot of room before you start bumping up against a constitutional barrier.”

Even a few years earlier, Obama’s comments would have seemed bizarre. Since a Supreme Court case called United States v. Miller, in 1939, hundreds of courts had rejected the individual rights view of the Second Amendment. But then the National Rifle Association, the Republican Party, and their allies invested their time, money, and energy in creating a new understanding of the Second Amendment. Indeed, at the time of Obama’s news conference about the massacre, the Supreme Court was preparing to decide District of Columbia v. Heller, a product of this long effort to create a new interpretation of the Second Amendment. The work of conservatives to change the accepted meaning of the framers’ words was so successful that the recruits to the cause came to include the Chicago liberal who was a leading contender to be the Democratic nominee for president.

This, it turns out, was no surprise. Obama was an unusually well-credentialed lawyer. His life as a public figure began in 1990, when he was twenty-eight and won election as president of the Harvard Law Review, the first African American to hold that position. Obama practiced law for a dozen years and taught at the University of Chicago Law School for nearly as long. But by 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, and by 2008 he knew that the way to win the presidency was, in part, to embrace the individual rights theory of the Second Amendment.

Near the end of his memoir, Dreams from My Father, which he published when he was thirty-three, Obama reflected on his education at Harvard Law School. His tone was ambivalent. “The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power—and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.” Then, in a gesture that was common in the book, and in Obama’s character, he gave the other side of the story: “But that is not all the law is,” he continued. “The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.”

Obama’s conversation with himself continued: “How far do our obligations reach? How do we transform mere power into justice, mere sentiment into love? The answers I find in law books don’t always satisfy me—for every Brown v. Board of Education I find a score of cases where conscience is sacrificed to expedience or greed.” As before, though, Obama followed that despairing remark with a hopeful one: “And yet, in the conversation itself, in the joining of voices, I find myself modestly encouraged, believing that so long as the questions are still being asked, what binds us together might somehow, ultimately, prevail.”

Obama arrived at Harvard after spending three years as a community organizer in Chicago. There he had led a small group in a series of fights, usually with the city government, for better housing, for asbestos abatement, and for jobs on the South Side. Like many such endeavors to organize the poor, Obama’s work was difficult and not especially successful; friends and colleagues found Obama more analytical than confrontational. In time, as his frustrations mounted, Obama began thinking about going to law school. Partly, Obama simply wanted to find a way to make a decent living, but the profession also seemed well suited to his particular kind of intelligence and ambitions. He was admitted to Harvard and began his studies in the fall of 1988.

Obama had just turned twenty-seven, which turned out to be a fact of some significance. Most of his fellow students were considerably younger, and Obama’s maturity, both chronological and temperamental, set him apart. He approached law school, as he did much else, with a certain detachment, as both participant and observer. Law school, and Harvard in particular, would leave its mark on Obama, but his core remained unchanged.

There was much truth in the conventional view of a Harvard Law School degree as a passport to Wall Street law firms, but the school also produced eminent role models for an aspiring reformer like Obama. Louis Brandeis, class of 1877, practically invented Supreme Court litigation as a vehicle for social change and, in an article in the Harvard Law Review, first identified a “right to privacy.” Felix Frankfurter, class of 1906, provided much of the intellectual energy behind the New Deal, as well as many protégés to Franklin Roosevelt, before following Brandeis on to the Supreme Court. Archibald Cox, class of 1937, joined the faculty and went on to serve as President Kennedy’s solicitor general and then Watergate special prosecutor. In subsequent decades, untold numbers of Harvard Law graduates moved to Washington, and around the country, to make their marks on the policies of the day.

And there was a time, too, when ideas, as well as people, also made the trip from the Ivy League to Washington. In the Warren Court years—the years of Brown—leading law schools provided much of the intellectual firepower behind the Court’s most liberal decisions. In Goldberg v. Kelly, in 1970, the Court held for the first time that the government must give an individual a hearing before cutting off his welfare benefits. To do otherwise, Justice William J. Brennan Jr. said, would violate the Fourteenth Amendment, by depriving the individual of “property” without due process of law. But were welfare benefits “property”? In the key passage in the opinion, Brennan wrote, “It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property.” In support of this novel notion, Brennan cited the work of Charles A. Reich, a professor at Yale Law School, and his articles in the Yale Law Journal. At around the same time, Frank I. Michelman, a professor at Harvard (who was still teaching when Obama was a student), suggested that the Fourteenth Amendment might require a right to economic equality, not just freedom from discrimination. The Supreme Court never went that far, but the idea was, at least for a while, plausible. To write for a law review in those days could be seen as an act of genuine political importance. Harvard’s influence, though, went in cycles, and there was a down period as the country and the Supreme Court began to turn to the right in the 1970s—a period that coincided with the tenure of John G. Roberts ’79 on campus. Richard Nixon famously referred to Harvard as the “Kremlin on the Charles,” so faculty members were generally less welcomed in his administration. Conservative Supreme Court justices needed no direction from liberal academics. On the whole, in these days, the Harvard law faculty still tilted left, but the school returned its focus to its mission as a professional school. As managing editor of the Harvard Law Review, Roberts was known by his colleagues as a political conservative—a modest novelty among his fellow editors—but mostly as a skilled and demanding taskmaster.

Liberals may still have held sway in Cambridge, but conservatives were gaining in the rest of the world, and following his graduation, magna cum laude, Roberts began his Republican ascent. He clerked first in New York for Henry J. Friendly, a legendary judge of moderate Republican views on the Second Circuit, and then in 1980 for William Rehnquist, who was still an associate justice. From there, Roberts went to the Justice Department and Reagan White House. Clearly, then, the Kremlin in Cambridge could launch a brilliant conservative career as well as a liberal one.

Back at the law school, in the eighties, the politics took a peculiar turn. The faculty, and to a lesser extent the student body, became bitterly divided over a movement known as Critical Legal Studies. CLS was a hybrid of traditional Marxism and contemporary literary theory; its adherents purported to expose the contradictions and class biases inherent in all aspects of law. As far back as the 1920s, “legal realism”—which provided the intellectual basis for much of the New Deal—exposed the political nature of most legal rules. But the Crits, as they were known, practiced a kind of legal realism on steroids, taking an almost nihilistic pleasure in showing the meaninglessness of law. They portrayed law as first and foremost an instrument of oppression of the disenfranchised, and they did so in a manner that was both passionate and obscure, with articles full of citations to the work of “poststructuralists” like Jacques Derrida. Crits and conservatives on the faculty battled over tenure appointments, and the fights sometimes spilled into the classrooms, and even into courtrooms. The Kremlin on the Charles became known as Beirut on the Charles.

Roberts experienced a pre-CLS Harvard. Obama arrived just after its heyday. So it was notable that, while still in his first year, Obama sought out Laurence Tribe and went to work for him as a research assistant. The choice was a revealing one on the young student’s part. Tribe was a liberal but no Crit—a description that also fit his prize student. Tribe had managed to avoid the Crits-versus-conservatives warfare on the faculty, largely because he was a leading modern exemplar of the Cambridge-to-Washington axis. After writing the best single-volume treatise on the Constitution, Tribe became an accomplished Supreme Court advocate and adviser to Democratic politicians. In 1987, Tribe gave damning testimony before the Senate Judiciary Committee against Reagan’s nomination of Robert Bork to the Supreme Court. The stand made Tribe a Republican target and doomed his own chance of winning a nomination to the Court. Still, Tribe was more than an academic; he was a player on the larger stage, the real world.

Obama excelled in the classroom—he too would graduate magna cum laude—and he succeeded in the writing competition to join the staff of the Harvard Law Review. Students on law reviews edit articles that are submitted by law professors around the country; about forty out of five hundred students in a class make law review at Harvard. Every February, the staff of the law review holds an election to select the president, or editor in chief, of the magazine for the following year. Obama won with broad support. Conservative students, who were a growing presence at Harvard, turned out to be the key to Obama’s victory. The Federalist Society—the national conservative legal organization—had been founded at Yale in 1982, but Harvard soon opened a chapter, and its members asserted themselves as a vocal minority on the staff of the Review. The conservatives recognized that Obama was not one of their own, but they felt he would give them a fair shake, especially about which articles to publish. In winning the confidence of conservatives, Obama’s maturity proved a tremendous asset. In that tumultuous time on campus, Obama always seems slightly removed from the battle lines, in his customary posture of both observer and participant. He had an innate grasp of the politician’s gift for persuading others that you agree with them without ever making an explicit commitment. Obama’s earnest style earned him some mockery from his friends. One of them told David Remnick that a group would go to the movies and tease Obama by imitating his solicitude: “Do you want salt on your popcorn? Do you even want popcorn?”

Suddenly, then, with his election as president of the Review, Barack Obama was a celebrity of sorts. The New York Times did a story about him. Turner Broadcasting asked Obama to record a “Black History Minute,” and the young man, struggling with the teleprompter, gave a brief tribute to Charles Hamilton Houston, one of Thurgood Marshall’s legal mentors. Vanity Fair, which does not generally track the leadership of scholarly publications, devoted a full page to Obama’s election. “The New York Times ran a ‘First Black’ headline, which probably won’t be the last time that label is affixed to Barack Obama,” Elise O’Shaughnessy wrote, before concluding that Obama “responds warily to the assumption that he himself will run for office. ‘If I go into politics it should grow out of work I’ve done on the local level, not because I’m some media creation.’ Though, as media creations go, he’d be a pretty good one.” In addition, around this time, Jane Dystel, a literary agent in New York, approached Obama with the idea of his writing a book. Obama agreed, and signed a contract with a division of Simon & Schuster. (At that point, people embraced Obama without knowing much about him. One publisher thought he was raised in the Chicago ghetto; Vanity Fair said he grew up in Singapore, not Indonesia. No one seemed to know that his real home was Honolulu.)

It was all a rather extraordinary amount of attention to a mere law student, but during his debut as a public figure, Obama demonstrated precocious political skills. “The fact that I’ve been elected shows a lot of progress,” he told Fox Butterfield, of the Times. “But it’s important that stories like mine aren’t used to say that everything is O.K. for blacks.” Likewise, Obama was always careful to show respect for his forebearers in the civil rights movement, whose sacrifices, he said, made his own success possible. He told the Boston Globe, “To some extent, I’m a symbolic stand-in for a lot of the changes that have been made.”

But for all that Obama showed respect for Marshall, Houston, and their peers, he also made clear in his own way what he expected of the contemporary legal system: not much. Those pioneers had used the courts to break down the legal barriers that oppressed African Americans. 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. In 1991, Obama graduated from Harvard Law School into the world of the Rehnquist Court, where the social change on the agenda was (almost always) in the conservative direction. If the right was ascendant, the left was distracted—with the baroque inventions of Critical Legal Studies. For someone like Obama, who had spent years working on the real-world problems of poor people in Chicago, theories untethered to reality had no appeal.

Later, when Obama was a senator, he explained the nature of his disillusionment with the use of the courts for social change. It wasn’t just that things looked bleak at the Rehnquist Court. “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy,” he wrote in The Audacity of Hope. Yes, he pointed out that he believed in the right to privacy and celebrated the legacy of Brown in civil rights, but it wasn’t up to lawyers to preserve those rights. “There was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.” Unlike his honored forebearers, Obama would devote his life to elections, not lawsuits.

Meet the Author

Jeffrey Toobin is the bestselling author of The Nine, Too Close to Call, A Vast Conspiracy, and The Run of His Life. He is a staff writer at The New Yorker and the senior legal analyst at CNN. He lives with his family in New York.

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The Oath: The Obama White House and the Supreme Court 3.7 out of 5 based on 0 ratings. 30 reviews.
CrossroadsDB More than 1 year ago
I just wanted to point out that the other person submitting a review of this book didn't even read the book! She said she read THE REVIEW of the book!!! So, without actually reading the arguments presented in the book, she comes to a conclusion based on ideology. Ironically, this is exactly the problem with the Roberts court Mr. Toobin addresses in this book. Instead of thoughtful judges who evaluate cases based on precedent, asking questions, and considering arguments, the ideologues on the Court, particularly Thomas, Scalia, and Alito, already have their minds made up, so don't bother them with the evidence or the arguments. Many Republicans and traditional conservatives today are distressed at the shift to radical right-wing ideology within that party, particularly over issues of civility in political discourse, individual privacy, and corporate responsibility (environmental regulations, etc.), and Toobin compares TRUE conservatives w/ the *right-wing ideologues* on the Court today. (I hope I can add to this review later b/c I tend to be verbose, but I don't have time right now for a lengthy review!) For now, I'll just say that I found this book very enlightening about the current relationship b/t the Judicial and Executive branches of our government, and I recommend that people read it before the 2012 election. You might be surprised at the evidence Toobin presents and the arguments he makes!
mamamia More than 1 year ago
I also have a problem with "commoner" who disses a book he/she did not read. This is a good book to read and gives insight to the workings of The Supreme Court and this Administration. Hopefully people will read it to learn of another opinion and not read it to have their opinion validated.
Anonymous More than 1 year ago
Toobin does a largely good job objectively covering the rrlationship between President Obama and the Supreme Court Justices. The narrative is entertaining and fairly well written. Definitely a recommended read to those interested in the subject matter.
Anonymous More than 1 year ago
a good update on an important part of our governmrnt
Anonymous More than 1 year ago
Toobin's narration of recent Supreme Court decisions provides an interesting (and sometimes scattered) view of the various forces that impact these decisions that so often shape our culture and economy. One would expect that some predictable sources of influence, such as party politics, might be set aside at the doors of our magnificent Supreme Court building. Yet, the fascinating story that penetrates this book is that while our justices are bright legal minds who have sometimes found their way to the Court by luck or circumstance, the justices are truly ordinary human beings with extraordinary power. The motivation of each justice ( if Toobin is correct in his analysis) is political, whether that is driven by the justice's personal need to wield influence, or to alleviate social injustice, or to create a historical moment, or even for party-driven policy goals. The deliberateness of party politics on this highest Court is surprising; it is shocking, at times, to realize how little the briefs or law matter when a political agenda is on the table. One might expect that justices would have political beliefs, but agendas should be left to the legislature and executive! Toobin reminds us of the human frailness of our justices, and of the very divided political forces that influence these justices. Perhaps the scales of justice which are prevalent in the Spreme Court souvenier gift shop in Washington should be adorned with donkeys and elephants. The impartiality and integrity alluded to the Court are illusory, but we knew this when Bush was appointed ( yes, appointed) President.
Anonymous More than 1 year ago
Jeffrey Toobin at his best. A bold, informative, exciting read. A must read for all.
Anonymous More than 1 year ago
Rights of minorities and women versus the right of corporations are going to be affected by the election this year. If you care about people versus gargantuan corporations you must read this before the election. If you went to a school that didnt teach you about our three branches of government this book will show you why your vote for president is so important. We get the court we deserve and Toobin makes his case with the sense of urgency it deserves. Th the sense of urgency it deseves
TiredofGarbage More than 1 year ago
Toobin does a great job in deciphering what is going on with the Court, which is under a cloud of suspicion following the 2000 election when they ruled against the will of the people, and Citizens United, when the justices again ruled against the people. The landmark health reform ruling will stand for many generations as a time when this Court finally ruled in favor of the people. Like Roe vs. Wade, the Court ruled for reality rather than fake ideology, and we have to applaud them for that. In my world, a conservative is a selfish person who lives just for themselves, and believes that it is OK to let people die because they cannot afford healthcare - and I thank God that we have a government standing up for all the people, not just the ones who happen to be rich (riches come and go, humanity and decency live forever). A good book, highly recommended.
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Very interesting and well written, however it revisits a lot of info included in "The Nine".
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luvcoffeejeeps More than 1 year ago
Wonderful and interesting read!
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Dan danlle with those white vans
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WET1 More than 1 year ago
This book is interesting, but so liberally biased that I don't know what part to believe and when to ask what is the rest of the story.
Anonymous More than 1 year ago
Very interesting.