The Oath: The Obama White House and the Supreme Court

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Overview

From the prizewinning author of The Nine, a gripping insider's account of the momentous ideological war between the John Roberts Supreme Court and the Obama administration.

From the moment John Roberts, the chief justice of the United States, blundered through the Oath of Office at Barack Obama's inauguration, the relationship between the Supreme Court and the White House has been confrontational. Both men are young, brilliant, charismatic, charming, determined to change the ...

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Overview

From the prizewinning author of The Nine, a gripping insider's account of the momentous ideological war between the John Roberts Supreme Court and the Obama administration.

From the moment John Roberts, the chief justice of the United States, blundered through the Oath of Office at Barack Obama's inauguration, the relationship between the Supreme Court and the White House has been confrontational. Both men are young, brilliant, charismatic, charming, determined to change the course of the nation—and completely at odds on almost every major constitutional issue. One is radical; one essentially conservative. The surprise is that Obama is the conservative—a believer in incremental change, compromise, and pragmatism over ideology. Roberts—and his allies on the Court—seek to overturn decades of precedent: in short, to undo the ultimate victory FDR achieved in the New Deal.
   This ideological war will crescendo during the 2011-2012 term, in which several landmark cases are on the Court's docket—most crucially, a challenge to Obama's controversial health-care legislation. With four new justices joining the Court in just five years, including Obama's appointees Sonia Sotomayor and Elena Kagan, this is a dramatically—and historically—different Supreme Court, playing for the highest of stakes.
   No one is better positioned to chronicle this dramatic tale than Jeffrey Toobin, whose prize-winning bestseller The Nine laid bare the inner workings and conflicts of the Court in meticulous and entertaining detail. As the nation prepares to vote for President in 2012, the future of the Supreme Court will also be on the ballot.

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Editorial Reviews

The Washington Post
…offers a compelling narrative of the early years of the Roberts court, which produced a series of 5 to 4 decisions that pitted the Obama administration against the conservative justices…More than three decades after Bob Woodward wrote The Brethren, Toobin is Woodward's successor as the chronicler of behind-the-scenes details from the Supreme Court, and the book is a page-turner. The many pleasures of The Oath come not from scoops about how cases were decided but from human details about the justices and their interactions with the White House.
—Jeffrey Rosen
The New York Times Book Review
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.
—Garrett Epps
The New York Times
…a lucid, if sometimes highly opinionated, assessment of the Roberts court…For the most part, however, Mr. Toobin makes reasoned cases for his interpretations of court rulings, their historical context and their possible social and political consequences. He puts today's conservative judicial activism in perspective with that of the liberal Warren Court of a half-century ago. And he looks at how the current makeup of the court reflects changes in the Republican Party at large, underscoring in particular the fallout created by the departure of the moderate Republican Sandra Day O'Connor.
—Michiko Kakutani
Publishers Weekly
Toobin, a staff writer for The New Yorker, adds to his works of political analysis (including 2008's The Nine: Inside the Secret World of the Supreme Court) with this thorough exploration of the relationship between the Supreme Court and the Obama administration. After discussing the repercussions of Chief Justice John Roberts botching the oath at the 2009 presidential inauguration, Toobin sets the stage by reviewing Roberts' professional background, as well as Obama's views on the Constitution and the "precocious political skills" that enabled him to rise to the top. Toobin profiles new, current, and former justices, providing glimpses into their personal and professional lives while highlighting their individual personalities and talents, demonstrating what each justice brings to the Court, and how these factors affect their interactions. With great attention to detail, he also expounds on the outcomes and implications of many recent cases, including Hamdan v. Rumsfeld, Federal Election Commission v. Wisconsin Right to Life, and the recent ruling on the Affordable Care Act. Though Toobin's exhaustively researched study is marred by a haphazard structure and weak conclusion, it is nevertheless as readable, and informative, as his magazine pieces, and will greatly interest those involved in politics. (Sept. 18)
Library Journal
Having laid bare the workings of the Supreme Court in his prize-winning The Nine, Toobin returns to assess how the Court—and, specifically, Chief Justice John Roberts—stack up against President Obama. From the moment that Roberts blew administering the Oath of Office at Obama's inauguration, he and the administration have been ideologically at odds. Toobin argues that the two men are both charismatic and ambitious, though Obama's actually the conservative one; he aims for step-by-step change, building on the past, while Roberts wants to unstitch everything accomplished by the New Deal. Essential reading as we gear up for the election.
Library Journal
Best-selling author Toobin (staff writer, The New Yorker; The Nine: Inside the Secret World of the Supreme Court) returns to the Supreme Court in his latest book. With the 2012 election approaching, this well-timed title examines the relationship between the Roberts court and the Obama White House. Toobin paints a portrait of a president and chief justice who are not so very different in some regards—young and passionate, graduates of Harvard Law, dedicated to change—but whose profound philosophical differences have resulted in a tense relationship between those two branches of government. Though the work can occasionally feel a bit disjointed, Toobin's focus on the personalities involved, especially his attention to the dynamics within the Court, enlivens the legal analysis and creates a kind of narrative. VERDICT Toobin has made a career of writing a compelling and readable mix of legal analysis and storytelling. Timely, entertaining, and insightful, this book is no different, and fans of his previous work will find more to enjoy here. Court watchers and politics junkies will delight in this fascinating examination of a crucial moment in Supreme Court history.—Rachel Bridgewater, Portland Community Coll. Lib.
Kirkus Reviews
A skillful probing of the often-discordant relationship between the president and the Supreme Court. Having previously examined the intricate machinations of the Supreme Court, CNN and New Yorker legal analyst Toobin (The Nine: Inside the Secret World of the Supreme Court, 2008) again turns his scrupulous eye to the Court's current and future impact on the Obama administration. The author lays the groundwork for his examination by citing Chief Justice John Roberts' awkward 2009 fumbling of the presidential oath of office (later re-administered, to Obama's annoyance) and proceeds to retrace Court history and the persistent political distance separating the presidential seat and the justices. Setting a congenial yet authoritative tone, Toobin notes that Obama and Roberts also share similarities as academic overachievers who attended Harvard Law School and officiated the student-produced Harvard Law Review. Their differences, writes the author, are rooted in the application of the Constitution: Obama believes in traditional values and stability, while Roberts is eager for the Supreme Court to usher in new changes and an evolving understanding of the Constitution's core signification. Toobin deftly tracks Roberts' political history and examines issues that best tested the Court's decisiveness--e.g., abortion, gun control, radical protests and health care. A consummate profiler, Toobin nimbly features key Supreme Court justices Sonia Sotomayor, Ruth Bader Ginsburg, Anthony Kennedy, Samuel Alito, Elena Kagan and "intellectual pathbreaker" Clarence Thomas. Culled primarily from interviews with unnamed justices and their respective law clerks, Toobin offers a well-balanced, literate and interpretative survey of the multifaceted intercourse between the conservative Supreme Court and our liberal president. Shrewd and elucidating.
From the Publisher
Praise for The Oath

“More than three decades after Bob Woodward wrote The Brethren, Toobin is Woodward’s successor as the chronicler of behind-the-scenes details from the Supreme Court, and the book is a page-turner.”
--The Washington Post

“Toobin is one of the most talented reporters covering American law…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] polished and thoughtful dissection of the current Court -- led by Chief Justice John Roberts -- and its high-stakes relationship to the Obama administration. Toobin brings full authority to this project. Deeply versed in Supreme Court lore and legal subtlety, he 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 and will.  After reading this wise book, one can fairly wonder whether the court, at its conservative core, embodies a brave corrective for the overreach of federal policy, or amounts to a partisan plot against America.”
--USA Today

“Jeffrey Toobin’s book The Oath: The Obama White House and the Supreme Court is for political, and governmental, junkies – those of us who simply cannot get enough of the fascinating interpersonal dynamics that shape so much of what goes on at the top levels of government….Toobin’s [book] would fall into the Robert Caro-Lyndon Johnson category. The “What’s really going on here?” genre of political studies…[The Oath] entertains us and reminds us that it is the interplay between different personalities and agendas that more than any scholarly argument of historical text is often at the heart of the laws we live with.”
-- The Boston Globe

"From the awkward swearing-in of President Obama by Chief Justice Roberts to Obama’s caustic reaction to the Citizens United ruling to Roberts’ support of Obama’s health-care law, the tumultuous relationship between the administration and the Supreme Court has been increasingly evident…Legal analyst Toobin offers a vivid inside look at the personalities and politics behind the fractious relationship…Among the highlights: Ginsburg’s scathing dissent on a ruling against a claim of pay disparity, in which she urged congressional action; Souter’s caustic dissent in Citizens United that questioned Roberts’ integrity; and Scalia’s bitter disappointment in Roberts’ decision on the health-care law. 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

“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.”
--Bookforum

“A worthy successor to The Nine, The Oath is a work of probity, intelligence and exceptional reporting.”
--Richmond Times-Dispatch
 
“Toobin, a rare authority who knows how to write, frames President Obama and Chief Justice John Roberts as engaged in a kind of slow-motion showdown, like two men standing on a frontier main street, which ought to get our attention…This is, in short, a book suitable for reading in the study or while sprawled at the beach.”
--Sun Times
 
“A lucid, lively and astute analysis of the Supreme Court during Roberts' seven-year reign as chief justice. Toobin has the chops (and the contacts) to take readers inside the court, capture the personalities of the justices, and parse the principles at stake in cases involving the right to bear arms, employment discrimination and campaign finance reform.”
--Minneapolis Star Tribune
 
“Toobin’s exceptionally readable book is more than just an inside look at the largely secretive way the justices operate. He blends strong reporting with a sure historical grasp of the court to present a persuasive argument that the five conservatives who control the court have embarked on a deliberate course to demolish well-accepted precedents on campaign finance, gun control and abortion rights.”
--Columbus Dispatch
 
The Oath is the sequel to The Nine, Toobin’s bestselling account of the Rehnquist Court [and Toobin] is a reliable and astute guide.”
--Miami Herald

“Jeffrey Toobin is perhaps the most astute reporter writing about the U.S. Supreme Court.  [THE OATH may] eventually as the best book about the court during the opening half-decade of John Roberts' reign as chief justice. The book examines numerous recent rulings in depth, rulings about race-based affirmative action, gender inequality, the right to own guns, the ability to inject religious belief into the public arena, financing of political campaigns and many, many more issues. Toobin does his job well.”
--The Seattle Times

Praise for The Nine
Winner of the J. Anthony Lukas Book Prize

The Nine not only provides a vivid narrative history of the Court’s recent history, but also gives the reader an intimate look at the individual justices, showing how personality, judicial philosophy and personal alliances can inform decisions that have huge consequences for the entire country . . . Driven by the author’s assured narrative voice, The Nine is as informative as it is fascinating, as insightful as it is readable.”
—Michiko Kakutani, The New York Times

“Smart and entertaining . . . The Nine is engaging, erudite, candid and accessible, often hard to put down. Toobin is a natural storyteller, and the stories he tells are gripping . . . [He] writes about the court more fluidly and fluently than anyone.”
—David Margolick, The New York Times Book Review

The Nine is the latest, and by far the best [book] . . . about the Supreme Court.”
—Nina Totenberg, NPR

“This is a remarkable, riveting book. So great are Toobin’s narrative skills that both the justices and their inner world are brought vividly to life.”
—Doris Kearns Goodwin

“[An] absorbing group profile . . . [Toobin] deftly distills the issues and enlivens his narrative of the Court’s internal wrangling with sharp thumbnail sketches.”
Publishers Weekly

“A compelling look at the power and the politics behind the Supreme Court.”
Booklist

“A major achievement, lucid and probing.”
—Bob Woodward

“Toobin’s sparkling new work is anecdotally rich and clearly written . . . A testimony to [his] skill.”
USA Today

“Intelligent and even-handed . . . Toobin’s access to the Supremes and their secret little world is phenomenal.”
Chicago Sun-Times

The Barnes & Noble Review

President versus chief justice: it's a compelling narrative. Everyone knows the power of the president, with his launch codes, legislative veto, and ability to get network air time whenever he wants it. The Supreme Court, though, wields a bazooka of its own: the power of judicial review, which allows the Court to invalidate laws that violate the Constitution. The chief justice leads the Court, and the cleverest chiefs have outfoxed presidents. John Marshall frequently clashed with Thomas Jefferson, in the process establishing judicial review and securing the Court's stature as a co- equal branch of government. More recently, Charles Evans Hughes outmaneuvered Franklin Roosevelt by writing a single letter that soured Congress on Roosevelt's plan to pack the Court with liberals. Presidents underestimate chiefs at their peril.

Both Jefferson and Roosevelt faced chief justices who belonged to the opposing political party. But in conflicts between the executive and the judiciary, matters are not as simple as two partisan infantries marching straight at each other across an open field. At times, the president and the Supreme Court more closely resemble Cold War nemeses, all subterfuge and mind games beneath a veneer of diplomatic courtesy. When the current chief justice, John Roberts, fumbled the oath at Barack Obama's inauguration in 2009, White House lawyers arranged a private do-over, just to be safe. Obama was a little testy about the hiccup, and Roberts must have been mortified. Yet such is the confidence and pride of the current, brilliant chief justice that he again performed the oath from memory, refusing cue cards. He and Obama smiled politely, like a pair of premiers over tea. Then they ordered their fleets into hostile waters.

In The Oath: The Obama White House and the Supreme Court, Jeffrey Toobin chronicles the tense relationship between Obama and Roberts. Toobin is the legal affairs correspondent for The New Yorker and a reliably keen observer of the Court. Many of the book's pages range beyond the Obama-Roberts dynamic to cover recent developments on the Court generally — and do so well, with wit and many revealing details. But a few memorable encounters between Obama and Roberts serve as the spine of the story, which is structured as a play in three acts.

Act One is the kerfuffle over the presidential oath, which was an unusual stumble for Roberts, a man universally admired during his years in private practice for his flawless delivery at the world's most stressful podium — the one facing the justices. The incident established an atmosphere of awkwardness and antagonism between the two men. The second act finds the stakes raised: In January 2010 the Court struck down key provisions of the McCain-Feingold campaign finance law, with a bare majority of conservative justices concluding that it violated the First Amendment rights of corporations, unions, and other business organizations. Citizens United v. Federal Election Commission is the Court's most derided decision since Bush v. Gore, for its upending of decades of precedent, its stubborn disregard of common sense (Corporations are people? American elections need more money?), and its embodiment of the judge as partisan rather than umpire. The decision has caused major damage to the Court's reputation.

Six days after the Court decided Citizens United, Obama criticized it in his State of the Union address. Toobin reveals that, remarkably, Obama's speechwriters did not consider the effect this would have on the six justices sitting in the audience, leading Obama to ad-lib the softening line, "with all due deference to separation of powers." It was Samuel Alito, not Roberts, who mouthed "not true" to Obama's claim that Citizens United could allow foreign corporations to exert influence over American elections. But Roberts was sitting in the audience too. He mused in a speech several weeks later that it is uncomfortable for a justice to have to sit through a "political pep rally." That is a fair point. On the other hand, the more overtly politicized the justices become — by voting along ideological lines and using fresh majorities to overturn disfavored precedents — the less room they have to complain when their political opponents call them out.

Citizens United sparked a backlash against the Court, and without this response Roberts might have reached a different result in the health care case in June 2012. Toobin's third act complicates the view of Roberts as nothing more than Obama's wily antagonist. Faced with the prospect of five Republican appointees invalidating the centerpiece of a Democratic president's domestic program in the middle of a presidential election season, Roberts cast a shocking fifth vote to uphold the heart of the Affordable Care Act, infuriating conservatives and damaging his bona fides as a movement man. He then announced his intention to vacation on Malta. "Malta, as you know, is an impregnable island fortress," he quipped.

It is too soon for Toobin to provide much color to the maneuverings that produced this extraordinary outcome. He does note that Roberts furiously lobbied Anthony Kennedy, in vain, to join him for a 6–3 decision rather than a 5–4 one. But where the details are scant here, Toobin supplies them in abundance elsewhere, demonstrating a particular talent for nailing each justice. Roberts, he notes, is the Court's best writer and Alito asks the toughest questions at oral argument. John Paul Stevens, who retired in 2010 at age 90, is "a remarkable physical specimen," and Anthony Kennedy, the Court's swing voter, is "not a moderate but an extremist — of varied enthusiasms." The Court's newest member, Elena Kagan, took pains to insulate herself from the health care case while serving as solicitor general, so that she could participate should Obama nominate her to the Court. Stephen Breyer is "not a linear thinker," and "sometimes found himself caught up in his own curlicues of erudition." Antonin Scalia has officially descended "from conservative intellectual to right-wing crank."

Two things seem clear about Roberts's vote in the Obamacare case and the direction that decision portends for the Supreme Court. The first is that Roberts put the needs of the Court above his own preferences. The second is that he has bought himself some breathing room: the glare has shifted from the Court back to the presidential slugfest and partisan gridlock on Capitol Hill. In other words, Roberts is an honorable man and commendable leader who nevertheless knows the value of a tactical retreat. Next term the Court considers such hot-button topics as the Voting Rights Act and the Defense of Marriage Act, and Roberts will be free to address both cases without another Citizens United hanging around his neck. As both Roberts and Obama know, presidents come and go, but chief justices can afford to play the long game.

Michael O'Donnell is a lawyer who lives in Evanston, Illinois. His reviews and essays appear in The Nation, the Washington Monthly, and the Christian Science Monitor, among other publications.

Reviewer: Michael O'Donnell

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Product Details

  • ISBN-13: 9780385527200
  • Publisher: Knopf Doubleday Publishing Group
  • Publication date: 9/18/2012
  • Pages: 352
  • Sales rank: 602,247
  • Product dimensions: 6.40 (w) x 9.30 (h) x 1.30 (d)

Meet the Author

Jeffrey Toobin
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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Read an Excerpt

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.

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Table of Contents

Prologue: The Oaths 1

Part 1

1 The Politician's Path 21

2 "On Behalf of the Strong in Opposition to the Weak" 35

3 The Era of Good Feelings 47

4 The Legacy of Appendix E 58

5 The Ballad of Lilly Ledbetter 71

6 The War Against Precedent 82

Part 2

7 The Hunter 97

8 Lawyers, Guns, and Money 105

9 The Unrequited Bipartisanship of Barack Obama 116

10 Wise Latina 128

Part 3

11 Money Talks 145

12 Samuel Alito's Question 158

13 The Rookie 170

14 The Ninety-Page Swan Song of John Paul Stevens 182

15 "With All Due Deference to Separation of Powers" 192

Part 4

16 The Retired Justices Dissent 207

17 Softball Politics 219

18 The Tea Party and the Justice's Wife 230

19 The Thomas Court 239

20 "Democracy Is Not a Game" 25i

Part 5

21 "You Should Do It" 263

22 Broccoli 272

23 The "Effective" Argument 283

Epilogue: The Roberts Court 294

Acknowledgments 299

Notes 300

Bibliography 309

Photo Credits 313

Index 314

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Customer Reviews

Average Rating 4
( 36 )
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4 Star

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See All Sort by: Showing 1 – 20 of 36 Customer Reviews
  • Posted September 18, 2012

    An important book for Americans who want to understand today's Supreme Court

    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!

    28 out of 31 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Posted September 18, 2012

    Toobin does a great job in deciphering what is going on with the

    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.

    10 out of 19 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted September 21, 2012

    Fascinating Read

    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.

    8 out of 10 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted September 20, 2012

    Supreme court?

    It seems about right that the right would praise the fascists on the court and denigrate the president. The court has done everything possible to destroy our civil liberties beginning with the citizens united decision and your so called God only knows what they will try to do to take away even more freedoms. And yes I read the book.

    8 out of 20 people found this review helpful.

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  • Posted September 19, 2012

    I also have a problem with "commoner" who disses a boo

    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.

    7 out of 7 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted September 18, 2012

    It is arithmetic!

    When I looked at these reviews I saw two stars and a '1' in parentheses indicating there was one review. However there are 2 -- the second was a five star review. Now three reviews - I hope the problem corrects itself.

    2 out of 14 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted November 30, 2012

    Intriguing and informative perspective

    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.

    1 out of 1 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted October 8, 2012

    Oo shut up u damn rebublican

    OBAMA IS LIBERAL

    1 out of 9 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted April 11, 2013

    lvery interesting

    a good update on an important part of our governmrnt

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 16, 2013

    Interesting Read

    Very interesting and well written, however it revisits a lot of info included in "The Nine".

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 3, 2013

    To Midnight

    50 or 99

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 3, 2013

    Sunwing

    ASPENFIRE! GET OUT OF GLIMMER'S DEN! IT WAS HERS IN THE FIRST PLACE! OR, AS DEPUTY, I CAN REMOVE YOU BY FORCE!

    0 out of 1 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 2, 2013

    Mysterious human

    The man walks in, wearing a hood. His katana gleams. Touch aspenfire and DIE.

    0 out of 1 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 2, 2013

    To Glimmer

    She isn't trying to get YOU killed. You are trying to get HER killed. You just asked Katana.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 3, 2013

    Sugar

    Ugh. Copycats are lame

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 3, 2013

    Darkheart

    What about Jaguarkit? *he purred* ~Darkhear†•

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted February 3, 2013

    Glimmer

    Gtg to bed

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted January 29, 2013

    Jj

    Effbvvfnjiwbhigf

    Was this review helpful? Yes  No   Report this review
  • Posted January 21, 2013

    This book is interesting, but so liberally biased that I don't k

    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.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted October 26, 2012

    Excellent read.

    Very interesting.

    Was this review helpful? Yes  No   Report this review
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