Book Review: The Oath: The Obama White House and The Supreme Court by Jeffrey Toobin

I greatly enjoyed The Nine by Jeffrey Toobin and so was eager to read his follow-up, The Oath. The Nine examines the Renquist court, which was remarkably stable. The Oath on the other hand uses the framing device of Obama's first term. This is an important distinction. The book concludes in 2012, not 2016. Perhaps Toobin will write a third book or a second edition that encompasses the entire presidency. While reading this book in December of 2016 I could not help but reflect upon the importance and transformative nature of the supreme court and how President-Elect Trump may shape it. It is a disturbing thought exercise.

When people think of President George W. Bush's legacy the majority will concern themselves with foreign policy and the other policies associated with the post-9/11 period. After reading this book I wonder if Bush's most significant domestic legacy will be the appointment of Chief Justice John Roberts and Justice Samuel Alito.

Following the appointment of John Roberts and Samuel Alito in 2005 and 2006 the court lurched radically to the right. The extent of the change became fully apparent under Obama's first term. Before 2006 the far right of the court was occupied by Clarence Thomas and Antonin Scalia, but with Alito and Roberts' appointment they joined the mainstream of the court. Decisions like Citizens United and others reveal how radical the Supreme Court has become.

Toobin's writing reveals, in my opinion, that he is sympathetic or aligned to the criticisms of the new court. Under the Roberts court precedent is simply irrelevant and the so-called conservative justices feel comfortable overturning laws, displacing decades of precedence and going against the expressed will of the democratically elected branches of government to satisfy their own legal ideology.

Toobin gives the reader far more than one would get from reading current coverage of the courts. He provides deep background on the personalities of the justices and their lives. During this period several tragedies marred the court and he discusses how it shaped the decision making and relationships. Toobin also provides a broader, more meaningful context. The right-wing (for lack of a better term) essentially want to reset the United States to the Lochner Era (pre-1937) where government intervention in many fields was viewed as unconstitutional. Lochner has been cited in recent cases to justify decisions despite 70 years of precedent overruling it.

Ignoring who controls the White House and the Congress, the Supreme Court is poised to continue to march down this revolutionary path. It would do little good to elect a liberal president in 2020 if the supreme court has curtailed the interventions that could meaningfully make a difference. Toobin implies that progressives need to take the courts more seriously and I think this book makes a compelling case on how Obama failed in that regard in his first term.

Though not as strong as The Nine I found this a compelling and disturbing read. I recommend it those interested in the law, the supreme court and American politics.

Antonin Scalia and the Death of Controversial Figures

I learned about Antonin Scalia's death on Twitter, either the first or second piece about it that I saw was from The Onion with the headline "Justice Scalia Dead Following 30-year Battle With Social Progress" And this roughly sums up my feelings about Scalia.

For those who don't know Antonin Scalia was a United States Supreme Court justice appointed by Ronald Reagan. During the Renquist Court he was the second most conservative justice and he is credited as one of the intellectual fathers for the originalist interpretation of the constitution. Scalia was quick witted, boisterous, confrontational, passionate and at times very funny. I watched a number of speeches he gave years ago because I found him a compelling speaker. Intellectually his ideas have great appeal on the surface, the Supreme Court should interpret the constitution as it is written and not impose conditions, clauses or rulings that do not stem from the Founders' original vision.

However, for as appealing as the originalist interpretation of the American constitution is it has incredibly negative social impacts on the United States which is why Scalia was so deserving of The Onion's headline. It would not be wrong to say that the votes Scalia cast and opinions he wrote had a tangible negative impact on the lives millions of Americans. The litany of cases ranging from civil rights, affirmative action, gay rights, the power of the state, regulating business and finance generally gave more power to the powerful.

There tends to be a pattern when a major figure like Scalia dies. First there is genuine surprise and perfunctory well wishes, this is followed by that person's critics dancing on that person's grave, then the backlash to that criticism, often summed up by "have some respect," and then long combative essays are written as the body is laid to rest debating the man or woman's legacy. As much as you may believe that you'd always be respectful there is probably some public figure that rubs you the wrong way enough that you would take some satisfaction from their passing. When Jim Flaherty passed away I had mixed feelings. Like most people he lived somewhere in the gray, he had very troubling positions on a number of social issues and his role in the Harper years left much to be desired (to put it briefly), but I was not at all comfortable cheering the man's demise. I think that was at least partially driven by the fact that he had left public life.

In the United States the justices of the Supreme Court sit for life. Some choose to retire but many die on the bench. Openings on the Supreme Court are so rare that presidents may only get a chance to fill one or two vacancies. At the start of the Roberts Court the United States Supreme Court lurched radically to the right. Many of the controversial decisions handed down from the court have come from this period where there were four very conservative judges, Scalia, Thomas, Alito, Roberts and Anthony Kennedy often siding with them. This is how you ended up with cases like Citizens United which basically made it possible to spend unlimited money on campaigns.

Therefore Scalia's death under a progressive president is to tremendous benefit to the United States to the eyes of many. Even supporters of Scalia recognize this as they argue his replacement should not be selected until after the election, hoping a Republican can name a Scalia acolyte to the court.

Obviously it is unseemly to be happy at the passing of a fellow human being. I'm sure if Scalia retired two years ago and passed away there would be a much more sympathetic tone to his legacy. There is a simple truth that someone's hero is often someone else's villain. When Vladimir Putin dies there will be great sadness in parts of Russia I'm sure, and others will clink their glasses. Sadly the same is true of Barack Obama, Stephen Harper and Justin Trudeau, but the public vote on these figures and can remove them, that is not the case with a despot like Putin or a judge. It would seem wise to me for opponents of the recent deceased to contain their glee, but at the same time just because a public figure passes does not mean a whitewashing for their cannonization needs to begin either.  

If you want to learn more about the Supreme Court you might want to check out Jeffrey Toobin's book, The Nine, my review is here. 

Book Review: The Nine by Jeffrey Toobin

Most of the books I have reviewed on this blog have a Canadian focus, as do the overwhelming majority of the posts I write. When I first got interested in politics it was through carefully tracking American news. The rhetoric and debates in the United States were enough to turn me off so I stopped following so closely. As opposed to 24-hour cable news a more formal book on a specific topic is far more palatable.

The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin is a history of the Rehnquist Court and the first years of the Roberts Court. Toobin is a journalist with a specialty in the Supreme Court and has written a number of books about the American judicial system.

The most remarkable aspect of the book, in my opinion, is the fascinating in-depth profiles of the justices of the Rehnquist Court; their histories, their philosophies, how they came to be appointed and their personalities. It is fair to say that the men and women who have made up the United States Supreme Court have been a somewhat eccentric bunch. Rehnquist Court was remarkable for its stability. The justices on that court served together a long time and saw very little turnover. Toobin depicts the insular, close-knit world of the Supreme Court well. To a great extent the facts speak for themselves. For example, John Roberts was a clerk for the Supreme Court and a pallbearer at Rehnquist's funeral.

It is  a jarring thought that nine individuals wield such incredible power, and yet receive very little scrutiny in a sense. While less true now, I think that was definitely the case in the period before the 1990s.  The turning point was, of course, Roe v. Wade. The legalization of abortion caused an incredible political shift in the United States, including within the judiciary. Toobin illustrates how a conservative reaction developed into institutions and schools of thought and advocacy groups for the anti-abortion movement and ideological conservatives. Antonin Scalia was an early member of this movement, but was relatively lonely and isolated until Bush's appointees.

One of the surprising aspects to the book is the seemingly ad hoc process by which American presidents appoint justices. Bill Clinton botched the roll out of his, and George W. Bush had the embarrassing episode with Harriet Miers and Alberto Gonzales. Toobin offers a wonderful inside look into the entire process.

Some justices loom larger in the book than others. Perhaps the most significant is Sandra Day O'Connor who was the crucial swing vote in the Rehnquist years. Despite being a lifelong Republican and a conservative she sided with the liberal side of the bench on a number of decisions that helped protect abortion rights and affirmative action.

With that in mind Toobin suggests that the Bush appointments may have radical consequences for American political and social life. The book was published in 2007 and so Toobin could not, at the time, know how right he was. Alito, and Roberts have given the conservatives a majority with Scalia, Thomas, and Anthony Kennedy. Toobin has very little respect for Kennedy and finds him to be a grandstanding justice, perhaps best exemplified by the 2000 case Bush v. Gore. In the years since 2007 there have been no shortage of radical decisions of the Roberts Court to overturn long-standing precedents.

Toobin succeeds in giving us a glance in the small world of the United State Supreme Court. The writing is crisp, and entertaining and does not get bogged down in jargon. Toobin does a remarkable job in stitching together the story behind the scenes and humanizing the menacing figures in black robes. I think this book has a lot to offer anyone interested in recent American politics/history, and not just law. The court, Toobin concludes, is a reflection of its time. Now the court reflects the ideological divide that has shaped post-civil rights America. The author does well in selecting cases that illustrate the personality and dynamics of the court and presents them in a way a layperson can appreciate. Overall an engaging read on a sadly obscure topic of incredible importance.