Toobin's Pivot: Jeffrey Toobin's "The Oath"

By Jonathan ShapiroApril 10, 2013

Toobin's Pivot: Jeffrey Toobin's "The Oath"

The Oath by Jeffrey Toobin

IN THE OATH: The Obama White House and the Supreme Court, Jeffrey Toobin wants to tell a great story, presumably the same one he sold to Doubleday Press long before the US Supreme Court handed down a certain decision on the Affordable Health Care Act.

Toobin’s story goes something like this:

Since 2008, President Barack H. Obama and Chief Justice John G. Roberts have been locked in a battle of epic proportions. The most powerful men in the country, “the most accomplished members of their shared generation,” they are fighting to determine which of them will set the course of American history for generations to come.

“The only certainty in the battle between them is the high stakes riding on the outcome.”

In one corner, President Obama, the first African American to hold the job, a Democratic politician with an “instinct for compromise and conciliation.” His first term goals, if not modest, are at least conventional: to extend progressive domestic policies through long-established means of federal regulation.

In the other corner, Chief Justice Roberts, a white Hoosier, a Republican lawyer’s lawyer, the most important member of a cabal of conservative justices, hell-bent on rolling back the federal government’s power through the Constitutional jurisprudence of textualism.

“For Roberts, the law was ultimately all about winning.” There was no place for compromise or conciliation. Toobin suggests a no-holds-barred affair with plenty of bad blood. Obama and Roberts are proud, competitive, and deeply committed to the principles that have governed their entire careers. Senator Obama voted against Robert’s confirmation. Chief Justice Roberts publicly complained about Obama using the Court’s members as props in the political rally that has become the State of the Union address.

To this point, Toobin’s story has at least one benefit: it offers a plausible explanation as to why Obama’s first swearing-in ended in such a frustrating draw, with both men stumbling all over one another, botching the presidential oath so badly it required an immediate rematch. Facing one’s greatest foe in the most public of settings would be unnerving for anyone. And if the Chief Justice didn’t like Obama before, having to come over to the White House the next day, robe in hand, to administer the oath again might well have exacerbated the conflict between the two men.

That is, if any conflict actually existed in the first place.

Toobin’s thesis depends on it. The notion of Obama, and Roberts in particular, as wholly partisan political animals shapes his whole narrative. Thus, the Chief Justice did not rule impartially, according to his oath, but rather, scored a decisive victory over Obama with the decision in Citizens United v. Federal Elections Commission, “a case about Republicans versus Democrats,” with Roberts shilling for the Republicans.

In response, President Obama exacted revenge, delivering a scalding attack of the Citizens United decision in his State of the Union address, with the Chief Justice in attendance, forced to sit there and take it, stone-faced, a hostage to precedence and political theater.

And back and forth it went throughout Obama’s first term, until fate handed Chief Justice Roberts the perfect opportunity to destroy his foe. The story builds to the denouement Toobin always anticipated, the Court’s decision on the fate of Obamacare.

If Toobin’s thesis is correct, Roberts should have joined his fellow conservative justices in handing Obama a stinging, and possibly election-losing defeat.

Spoiler alert for those who didn’t read the summary of National Federation of Independent Business v. Sebelius: It didn’t turn out the way Toobin wanted and almost guaranteed it would, as a commentator for CNN. The Chief Justice pulled his punch. To the consternation and catcalls of his own corner — most notably conservative cut man Antonin Scalia — Roberts cast the deciding vote and wrote the opinion to uphold Obamacare.

Not only did Roberts fail to knock Obama out. He actually helped Obama off the canvas to fight, not just for another day, but for another four years. Rather than play politics, Roberts performed his duty.

Facts are pesky things when they undermine the entire premise of one’s argument. Another man might have admitted his error, conceded that he misread Obama and Roberts and the nature of their conflict, perhaps even celebrated that two such intelligent, sincere, and committed men are motivated less by partisanship than patriotism.

Toobin is not that man. And he wasn’t about to let facts get in the way of a good story. Like any cornered attorney, he pivoted, redirecting the book’s main argument away from the broken promise of his opening statement.

But that led to a problem. Unable to rely on the Obama–Roberts conflict to carry the story he sold to publishers, Toobin is left with a lot of blank pages to fill. Which explains why a book that promises to reveal the details of the Obama–Roberts battle devolves into a hodgepodge of information about everything and everyone but Obama and Roberts.

Vamping, Toobin spends a great deal of time describing Justice Clarence Thomas’s wife, Virginia Lamp Thomas, their relationship, and her activities among the Tea Party, only to conclude that there is nothing wrong or particularly relevant about it.

Heartwarming stories of Justice Ginsburg’s late, beloved husband, or her friendship with Justice Scalia’s family, while not new, are always welcome, though they too take up an awful lot of pages.

As does Toobin’s odd vendetta against Associate Justice Anthony Kennedy. “[P]robably the possessor of the biggest ego on the Court,” a man who tends “to swing wildly one way or the other” in his opinions, “an extremist — of varied enthusiasms” with “an almost Pavlovian receptivity to arguments that the government had unduly restricted the freedom of speech,” Kennedy has “the confidence, or arrogance” to “thirst for power.” Toobin first accuses Kennedy of appearing to be “the most provincial of men” because he still lives in the same house he grew up in, in Sacramento, then turns around and dings Kennedy for being the Court’s most frequent flier and participant in foreign teaching posts and junkets. Lord knows what Toobin has against the man. I sense an East Coast bias.

The rest of the book is a crazy hodgepodge of interesting facts and entertaining innuendo. For example, having rebelled against a King, the Founding Fathers modeled the presidential oath on England’s Coronation Oath (good luck to textualists in figuring out the original intent behind that). Questions about the sexuality of Justices David Souter and Elena Kagan are brought up in the disingenuous context of asking whether it is appropriate to discuss a justice’s sexuality. Old chestnuts about the backstories of litigants in famous Court decisions are displayed and the number of pages increases.

Who’s missing is President Obama, almost completely absent from the vast majority of the book, and Chief Justice Roberts, of whom we learn very little, other than trivialities, such as the fact that he once played Peppermint Patty in his high school’s production of You’re A Good Man Charlie Brown. Critical legal scholars or political conspiracy theorists might find significance in this, some foreshadowing of the Chief’s attitude toward gender issues.

Toobin restrains himself and draws no such conclusion, not even the most likely — that Roberts, captain of his football team and a varsity wrestler, is an all-around good sport who went to an all-male school.

Nobody said covering the Supreme Court is easy. Notoriously coy, the Justices do not like to reveal much of their personal lives. They are even less forthcoming about their deliberations or decisions. Toobin has spent a lifetime developing contacts in DC’s legal community. His friendship with Kagan began when they were in law school together. No doubt he has developed a host of sources inside and outside the Court.

How else could Toobin know exactly what the reticent David Souter said to retiring Justice Sandra Day O’Connor during their private conversation in a Court hallway? Or that Souter called Bush v. Gore “the day the music died”? One would like it to be true, if for no other reason than it’s nice to think that Souter knew the lyrics to “American Pie.”

But who can tell? The credibility of anonymous leaks is hard to judge, like the whispers of snitches. And books are not written under oath. There is no reason to believe that Toobin makes things up. But sparse footnoting and sourcing makes it hard to know what is direct or circumstantial evidence, what is a reasonable inference or an outright guess.

The important thing, for Toobin, is that it’s entertaining.

There is nothing wrong with that. Law libraries are filled with the dusty, unread, unloved works of academics. Carefully crafted and considered, they are written by scholars for high-minded purposes: to provoke other scholars, to influence the course of legal opinion, to shed light on the past and present for the benefit of posterity.

Toobin writes for the masses, potboiler style, breaking down complex Constitutional issues into bite-size pieces, making heroes and villains of litigants and judges, creating rooting interests for the reader to cheer for or boo against. He has neither time nor patience for the constricted process of scholarship, in which one actually waits to see what happens before making judgments.

Both his parents were television journalists, and Toobin knows the value of a quick, easy-to-grasp anecdote, the punchy sound bite. It’s why his books (this is his ninth) appear so often on The New York Times best-seller list. It’s also what ranks him among the most erudite and enlightening members of cable news’s chattering class of law experts. Faint praise, perhaps, but earned.

A graduate of Harvard Law School, an editor of its law review, Toobin was a judicial clerk and served, briefly, as a federal prosecutor. Few understand the interplay of law and politics better. Fewer still can fill dead air or pages with such a dearth of material.

But Toobin also knows better than to completely twist the facts, and he can’t avoid the truth forever, even if he does leave it until the last possible moment. In a brief, four-page epilogue, Toobin executes the final and greatest pivot of all. He embraces the Chief Justice’s vote in the Health Care case, holding it up as proof that (common sense and our own lying eyes notwithstanding), Roberts really is a partisan hack, Obama’s sworn foe.

“In fact, for Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius.”

Toobin insists Roberts didn’t break with his fellow conservatives because Scalia pushed him too hard to strike at Obama. Nor did Roberts do it out of fear that the decision would have had a terrible impact on the Court’s reputation as an impartial body, exposing it to charges of being nakedly political, risking its all-important reputation.

No, Tobin argues, Roberts acted for the good of the conservative movement. Rather than make a hard, principled decision, Roberts pulled off a brilliant tactical retreat. By voting as he did, Roberts took the Supreme Court “off the Democratic agenda for the foreseeable future.” The move has thus bought Roberts “enormous political space for future rulings. In these and other cases, Roberts can advance the conservative movement — and, after health care, he runs little risk of embroiling the Court in partisan politics.” Roberts wasn’t running away from the fight with Obama. He was just backing up so he could get a running start at him, and hit him when he’s not looking.

Smart lawyers try to turn bad facts into good facts for their side. But this notion of Roberts playing the long con, giving Obama a second term so that he can then pursue a conservative political agenda, is too clever by half. It ignores the Supreme Court appointments Obama will get to make, ensuring his own legacy, and limiting Roberts’ influence. And it assumes that the otherwise brilliant Roberts is extraordinarily naïve, and believes that that the Court is now — or can ever be — above partisan politics.

It’s a good story, but I’m not buying it, however much I admire Toobin’s commitment to it. He remains the Dave Kingman of law journalists, always swinging for the fences. When he connects with the material and handles it with care, he hits it out of the park. When he whiffs — which happens more often than it should — he strikes out without advancing our understanding of the legal system.

But give him credit. He’s always hacking.


LARB Contributor

Former federal prosecutor Jonathan Shapiro’s first novel, Deadly Force, was recently released. He is the co-creator and executive producer of the Amazon Prime series Goliath, and the author of Lawyers, Liars and the Art of Storytelling.


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