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Reviewing Jeffrey Toobin’s The Oath
SCOTT PIEPHO
Cases and Controversies
Published: February 6, 2013
When introducing Constitutional Law to political science students, I warn them that unlike most political events they study, Supreme Court decisions don’t lend themselves to statistical analysis. For one thing, the court includes too few actors to create statistically significant data sets. With so few actors, individual idiosyncrasies can influence decision rendering analysis pointless.
Additionally, the data sets about why decisions are made are generally empty. The court alone among American political institutions functions like a black box. We can see what goes into a decision – the facts of the case, precedents, briefs, oral argument – and we can see what comes out – the decision and various dissenting and concurring opinions. But we know little of the actual deliberations.
Starting in 1979 we have been access to some information about some of the actual inside-the-box decision making. That year Bob Woodward and Scott Armstrong published The Brethren, a behind-the-scenes account of the deeply dysfunctional Burger Court.
Legal and political analyst Jeffrey Toobin has carried the work of The Brethren forward, first with The Nine, a sequel of sorts to The Brethren. While the latter book chronicled how Burger mismanaged the court, The Nine’s primary subject was how Chief Justice Rehnquist’s restored the court’s luster as an institution, and continued it rightward drift.
In Toobin’s latest, The Oath: The Obama White House and the Supreme Court, he takes on the Roberts Court. Where The Nine ends with the dawn of Roberts’ tenure as chief justice, The Oath retells that story in greater detail, then proceeds to expand on its subtitle – the ongoing conflict between the Obama administration determined to govern according to the now-familiar post-New Deal understanding of federal power and the Roberts Court’s conservative majority effort to revise that understanding.
In writing about constitutional law for a general audience, Toobin comes off like an avid fan trying to explain baseball someone who has never seen the game. That can make the book drag a bit for those well versed in the game.
But he finds enough new information to make his new book a must-read for anyone who follows the Supreme Court. For instance, he details the change in the staffing of the Office of the Solicitor General that led to the disastrous performance at oral argument in the health care reform case. And he writes that Roberts planned initially to strike down health care reform, but got “wobbly” as he worried about such a ruling’s effect on the legitimacy of the court.
No one with strong political leanings will feel good by the end of the book. Conservatives will note that Toobin consistently tilts the narrative against them. He is openly skeptical about originalism – the coin of the realm in conservative jurisprudence today. Developing a comprehensive argument against originalism would take up most of a very different book, so he often expresses the shortcomings of originalism as fact rather than the end point of an argument.
In addition, his harshest criticisms generally fall on the conservative justices. Justice Scalia is described as crossing the line from principled conservative jurist to right-wing political crank. Justice Kennedy is repeatedly portrayed as an ego-driven spotlight hawk. Justice Thomas lives inside a carefully constructed right-wing bubble.
On the other hand, liberals will be dismayed by his diagnosis of legal liberalism. Liberals on the court are portrayed as having no distinct ideas other than standing athwart history and saying “stop” as the conservative majority hollows out cherished precedents.
Toobin seems to have the greatest affection and sympathy for the genial centrism of recently retired justices – the center-right moderation of Sandra Day O’Connor and the center-left moderation of David Souter and John Paul Stevens.
That may be in part because these three are in the best position to candidly assess the Roberts Court. At the least, their post-retirement speeches and writings have offered some of the insights Toobin shares.
It is worth noting, though, that all three “inside the court” books make extensive use of anonymous sources – mostly former clerks, but in the first two instances also at least one justice. Justice Potter Stewart was the primary source for The Brethren; Justice David Souter is widely believed to have cooperated with the writing of The Nine. At times it appears that at least one or two retired justices submitted to interviews for The Oath. Not knowing if the fulsome treatment of O’Connor, Souter and Stevens may have been influenced by their cooperation is something of a problem.
Books like The Oath will never solve the black box problem. By nature the court will always be secretive and therefore mysterious. But whatever its flaws, the book does a service, both to the public and the court, by shining a couple beams of light into that box.