The Oath

The Oath: The Obama White House and the Supreme Court by Jeffrey Toobin
$16.26 at Amazon ($14.99 on Kindle)

Like many interested observers, I had no idea how the Supreme Court would rule on the Affordable Care Act, but I assumed that the decision would be either 6-3 in favor (with Roberts and Kennedy joining the liberal wing of the court, and the vast majority of constitutional experts, in upholding the law) or 5-4 against (with all five conservatives striking it down). That the final decision was 5-4 in favor, with Roberts providing the deciding vote, was something that I don’t think anybody expected. Democrats were relieved; republicans were outraged. What everyone wanted to know, especially as it emerged that Roberts had originally voted to overturn the law but then changed his vote before the final ruling, is why. What made him decide not to vote with his party?

President Barack Obama and Chief Justice John Roberts are two of the most powerful men in America, and in some ways they have similar backgrounds. Both attended Harvard Law, where each man graduated at the top of his class. However, they saw the law in different ways. Obama saw the role of the courts as enforcing the law, rather than making it; he sought change (particularly favoring the poor and disenfranchised) through legislative means. Roberts, on the other hand, saw the courts as the primary means for achieving his goals. As a lawyer, he specialized in getting cases thrown out for lack of standing, ensuring that claims against the corporations he represented would not be decided on the merits. As a judge, he continued that policy, looking for ways to dismiss cases for lack of standing. (When Roberts was nominated to the Supreme Court, then-senator Obama praised the man but voted against his confirmation, citing Robert’s history of siding with the powerful against the powerless.) Before Roberts, moderate republican Sandra Day O’Conner had been the swing vote on the court; after she and Rehnquist were replaced by Alito and Roberts, the eccentric Anthony Kennedy became the new swing vote and the court took a sharp turn to the right. In rulings such as 2007’s Ledbetter v. Goodyear Tire & Rubber Co., when individuals conflicted with corporations, the court generally ruled on the side of the corporation. A full third of cases in the second year of the Roberts court were decided 5-4, and the court began to ignore the principle of stare decisis, seeking cases to overturn existing law rather than respecting precedent. Nowhere was this more evident than the 2010 Citizens United, which threw out decades of settled law on campaign financing.

After bringing in Obama and Roberts, the book introduces us to the associate justices through following cases of particular interest to each of them. Ruth Bader Ginsburg’s primary interest lies in striking down discrimination; in her first case before the Supreme Court, Frontiero v. Richardson in 1973, she successfully argued that a female Air Force officer could claim her husband as a dependent (as a male office could have done with his wife, without dispute). In Weinberger v. Wiesenfeld two years later, she successfully argued that widowed fathers should receive the same Social Security benefits as widowed mothers. In the Lilly Ledbetter case, Ledbetter discovered shortly before her retirement that for decades, she had been receiving smaller raises than men doing the same job; as a result, she was now making $3,727 per month, while men in equivalent jobs were making between $4,286 and $5,236 per month. Ledbetter won her suit, but the judgement was overturned by the Eleventh Circuit, which held that Ledbetter was required to file an EEOC charge within 180 days; since she hadn’t found out about the discrimination until 1997, she was only able to sue over her final pay adjustment, although her vastly lower pay was the result of years of gender discrimination. The Roberts court upheld that decision; Ginsburg wrote the dissent, in which she suggested that, as the court was ruling (incorrectly, she felt) only on the law and not on the Constitution, Congress could overturn the ruling (as indeed they did – the Lily Ledbetter Fair Pay Act was the first bill signed into law by President Obama).

For Stephen Breyer, compromise was never a dirty word. He believed in making government work, and his specialties were antitrust and administrative law. To Breyer, the greatest day for the Supreme Court was when they decided Brown v. Board of Education, embracing the principle that equal protection under the law applied to all citizens, not simply to the majority race. Some years, Breyer read less than one dissent per year from the bench, but in the Roberts court he found himself reading several in one day. One dissent, for example, came in the case of Leegin Creative Leather Products, in which the majority overturned a 1911 precedent holding that price fixing (specifically, requiring retailers to sell a product for a minimum price) was always illegal. Breyer’s objections to the new working of the court were not solely its decisions (although he certainly disagrees with them) but the fact that it was ignoring stare decisis and quickly overturning established precedent.

Many times, Antonin Scalia didn’t enjoy his work; routine cases bored him. He enjoyed the attention that being a Supreme Court justice brought to his ideas, however, and on the cases that mattered to him, he hated to lose. In 2003, for example, he employed his gift for invective in his dissent to Lawrence v. Texas, which held that gay people could not be prosecuted for having consensual sex. One of Scalia’s major victories came in 2008, in District of Columbia v. Heller; for the first time, the Supreme Court found that the 2nd Amendment provided an individual right to bear arms. The case is interesting for how Scalia has successfully changed the tone of the court; most of the argumentation focused on the original intend of the founders (as opposed to how the Constitution should be applied today, as had been the case prior to Scalia’s tenure). Ironically, Scalia’s opinion drew largely from English law and writings prior to the American Revolution, while Stevens’ dissent focused on the actual debates between the framers of the Constitution. (Breyer wrote another dissent, arguing that it wasn’t the job of the Supreme Court to second guess the DC City Council, which had passed the law the suit was challenging.) Although Scalia claimed to interpret the Constitution as a “dead” document that should never change, in this case he lead the charge to overturn nearly two centuries of settled law (the only previous Supreme Court decision of note relating to gun laws came in 1939, where the court affirmed that the 2nd Amendment did not grant an individual right and that the government could regulate gun ownership). Interestingly enough, although the relevant sections of the Constitution refer to military weapons, the decision made no attempt to stop the government from regulating those (rocket launchers, etc); instead, it removed the ability of the government to outlaw handguns. Since the 1970s, the right had sought to reinterpret the 2nd Amendment; now, Scalia had granted their wish.

David Souter was dedicated to his job, but didn’t enjoy it. A moderate republican who became part of the court’s “liberal wing” as it moved to the right, Souter was disgusted by the transparently political Bush v. Gore. By the end of 2008, Souter (although not yet 70) was ready to retire. Obama had a short list of replacement candidates ready, and it was quickly whittled down further, Elena Kagan, for example, had only just been confirmed as solicitor general and had never yet argued before the Supreme Court. The president quickly settled on Sonia Sotomayor, who was considered a nearly perfect candidate. She had the educational background (Princeton and Yale) and the experience (prosecutor, district judge, judge on the federal appeals court), and had an impressive life story. While Obama personally liked the other person on his short short list (Diane Wood), he wanted someone he knew could work well with the other justices and put together coalitions. Additionally, the approval process needed to move quickly; the Supreme Court, which normally began its session in October, was starting a month early. In August, Sotomayer joined the court; on September 9, the court reheard Citizens United.

The original Citizens United case turned on a small point of law: could federal law prohibit a political group which received corporate funding from promoting a political movie within thirty days of an election? Unsurprisingly, the court came to a 5-4 decision. The liberal minority was surprised, however, to find that the chief justice, who had previously (and repeatedly) stated that it was a judge’s responsibility to decide a case as narrowly as possible, and who had been known to berate lawyers for attempting to raise questions not found in the written briefs, used his majority opinion to greatly expand the scope of the case, rewriting decades of settled law. Souter wrote a scathing dissent that Roberts worried would damage the court’s credibility, so he proposed that they rehear the case, with the court writing an expanded Questions Presented covering the wider scope that Roberts wanted to decide. The liberal wing of the court had no choice but to agree, knowing that the eventual 5-4 outcome was already decided.

The re-argued Citizens United would be Elena Kagan’s first appearance before the Supreme Court. Although everyone knew that the conservative majority planned to strike down McCain-Feingold, the government hoped to limit the damage. They were unsuccessful; the court found that corporations had the right to unlimited political spending (although they did allow the government to continue putting disclosure requirements into place) and essentially struck down most campaign finance law. The case stands out as being one of the most egregious examples of judicial activism; as Stevens put it, “five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” (Stevens wrote a 90 page dissent, concluding that “[w]hile American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”) The decision (which Obama’s legal team read as allowing foreign interests to spend money to influence American elections, as well as opening the floodgates for domestic corporations to more easily buy politicians) positioned the president in direct conflict with the Supreme Court, and he used his State of the Union address a few days later to call for Congress to pass a bill correcting some of the problems. Since the ruling was on constitutional grounds, however, the president knew that overturning it would require either a constitutional amendment (which nobody on his team saw as being practical) or a new liberal majority on the Supreme Court.

Citizens United defined the Roberts court, as Bush v. Gore had defined the Rehnquist court, but it was obvious that the court would soon rule on the Affordable Care Act. As soon as the law was passed, republicans across the country began challenging it in court. For almost the entire time it was being debated (not to mention the previous two decades in which the individual mandate had been tossed around), it had never occurred to anyone to challenge the constitutionality; now, however, nearly the entire republican party took it on faith that the law was unconstitutional. Due to the amount of work involved in preparing to meet the law’s requirements, the Obama administration requested a speedy review by the Supreme Court. In anticipation of the likelihood of the law eventually coming up for review, and her anticipated nomination to the high court, Kagan had refused to be present at any meetings involving the law; as a result, she had no need to recuse herself (Thomas, whose wife was one of the leaders in attacking the law, also refused to recuse himself), so the full court heard an unprecedented three days of argument on the law.

In the vote afterwards, the justices voted 5-4 to uphold one of the lower court decisions finding that the individual mandate was not justified under the commerce clause; Roberts assigned himself the opinion. What nobody was certain about was how far his opinion would go; the other four conservative justices wanted to throw out the law entirely, while the four liberals wanted to save as much as possible. While Roberts wanted to move as far to the right as practical, he had no wish to throw the country into chaos by wiping out the many established programs that had been reauthorized as part of the ACA; additionally, he did not wish to put the court at the center of the upcoming elections, as it surely would have if the republican majority had wiped out a democratic president’s major accomplishment. In the end, rather than trying to decide what parts of the law would have to be thrown out along with the mandate, he realized that even if he limited the reach of the commerce clause (one of the goals of the right dating back to the New Deal), he could still uphold the mandate as a permitted excuse of the Congressional power to tax.

Clerks for the conservative justices starting leaking that Roberts might be changing his mind about the case (from his clearly telegraphed opposition to the law during arguments), and the right mobilized to keep him in line, but to no avail – the law (with a few exceptions) was upheld. Roberts achieved his goals of weakening the commerce clause and upholding the reputation of the court, while at the same time granting himself more breathing room for the cases to come.

Overall, I quite enjoyed this book. I had hoped for more about the actual ACA decision – the section on the healthcare act makes up less than 40 pages of a 300 page book, and it doesn’t really offer any new information, but the book as a whole does a good job of showing what motivates each member of the court and how the court’s practices have changed since Robert’s confirmation. At times I felt that the author might be stretching slightly in an attempt to be completely fair to every member of the court, but on the whole I found it to be very well-written. I imagine that many people might not care for the section covering the history of the legal understanding of the 2nd Amendment, but overall, I feel confident in recommending the book for anyone interested in the work of, and personalities involved with, the Supreme Court.



This entry was posted by William on Saturday, September 22nd, 2012 at 6:28 pm and is filed under Uncategorized . You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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