The Obama White House and the Supreme Court
By Jeffrey Toobin
Doubleday, 298 pages, 2012
This is an important inside look at the Supreme Court but a badly titled book.
The botched oath of office administered by Chief Justice John Roberts to president-elect Barack Obama in 2009 has nothing to do with their sharp disagreement about constitutional interpretation.
Yet author Jeffrey Toobin opens the book with the trivial mistake and goes on and on about a matter of no consequence.
Obama, a constitutional law professor with liberal instincts, was bound to clash with a reactionary chief justice.
In that quarrel, President Obama is right, Roberts wrong. As Toobin puts it: Roberts “has far more often used his formidable skills on behalf of the strong in opposition to the weak.” Toobin also rightly said: “The Obama team regards the Supreme Court as just another group of Republicans.”
But the chief justice is enormously powerful as shown by his court’s retrograde Citizens United ruling of 2010, allowing unlimited campaign funding by declaring money speech protected by the First Amendment.
As wrong as the Roberts decision was, it remains the law of the land. The odds on a constitutional amendment to reverse it are prohibitive.
Toobin is wonderful on Justice Ginzburg, a tiny woman with a huge heart. She disagreed with Justice Blackmun that abortion is a privacy matter.
“Abortion rights are about equality,” she said. “The denial of abortion rights to women is just another former of discrimination.”
Toobin notes that Ginzburg particularly resented the patronizing of Justice Kennedy in his Carhart abortion decision of 2007, a ruling “straight out of the anti-abortion movement in which he refers to the fetus as a ‘baby’ and a ‘child.’ ”
It is such “inside stuff” that enhances the Toobin book. Such as: “Liberals want flexible rules that allow courts to reach decisions on the merits and conservatives want strict rules to prevent cases from being heard.”
Such as: the court’s surprising rule for Obamacare: “Roberts deferred as justices have for 75 years to Congress on issues relating to managing the economy.”
Such as: moderate Republican ideas, like moderate Republicans, have disappeared from the court as they have from the nation.
Toobin sparkles on Justice Souter who declared that the Bush v. Gore decision of 2000 giving the presidency to G.W. Bush “was so political, so transparent that it scarred Souter’s belief in the Supreme Court as an institution.”
Souter “came to loathe the Roberts Court,” denouncing “its disrespect for precedent, its grasping conservatism and its aggressive pursuit of political objectives.”
Toobin is excellent too on Scalia, ridiculing his notions about textualism and originalism, the idea that rights do not exist if they are not stated in the Constitution. Scalia’s absurd view ignores the wisdom of Justice Holmes: the law responds to “the felt necessities of the time.”
Toobin notes Scalia’s hunger to have been named chief justice. He cites Scalia’s “belligerence at oral arguments as a way of getting attention — his craving for the spotlight.”
Above all, Toobin makes it clear that the Roberts Court is a partisan bunch of Republican lawmakers harming the nation.
Jake Highton is an emeritus journalism professor at the University of Nevada, Reno.