The Oath

Jeffrey Toobin is a legal analyst for CNN and The New Yorker and plays a similar role for the intricacies of the legal system as popular science writers play for physics. I'd previously read and reviewed his The Nine, an excellent history of the Rehnquist Supreme Court. The Oath is half sequel and half extension, bringing the same analysis to the first four years of the Obama presidency and the appointments of Sonia Sotomayor and Elena Kagan.

Sequels to popular history books that are not explicitly multi-volume works are a tricky publishing niche. People expect them to stand alone; I doubt it would work to tell people "read The Nine before reading this book," and regardless, Toobin did not take that approach. But the court profiled in The Oath only differs by two justices than that in The Nine. There was therefore a fair bit of repetition, since Toobin felt obligated to repeat his profiles of the five members of the court he had already deeply analyzed in the previous book. He even retold the story of Sandra Day O'Conner leaving the court despite it falling outside the focus of this book. I think these 300 pages could have been 150 pages of additional material in The Nine if Toobin had started this project later.

That said, if you enjoyed The Nine (and I very much did), this is more of the same. Toobin picks up with Obama's inauguration ceremony and a fascinating bit of legal trivia over the oath of office, and then provides a detailed profile of the Roberts court and the major decisions of the first four years of Obama's presidency. His discussion of the nomination process and Obama's judicial philosophy rang very true following the death of Scalia: Obama's nomination of Merrick Garland is exactly what one would predict from Toobin's discussion. And, as with the previous book, I discovered that I had a lot of misconceptions about both Sotomayor and Kagan that Toobin cleared up. He does a great job showing the complexities of the interplay between law, politics, apparently unlikely friendships (such as Scalia and Ginsburg), and the executive and judicial branch.

Worth particular mention is Toobin's discussion of the office of Solicitor General of the United States. I had no idea the role it plays in Supreme Court decisions. If I had given it any thought at all, I would have assumed it was essentially a variation on White House Counsel crossed with the Attorney General's office. But it's quite a bit more than that, as Elena Kagan's profile shows. If you, like I, raised an eyebrow at Obama's nomination of Elena Kagan to the Supreme Court from Solicitor General, wondering if that was at all similar to Bush's nomination of Harriet Miers, this section will be very informative. White House Counsel and Solicitor General are very, very different positions.

However, The Oath has one major drawback that The Nine didn't: it's partisan.

Now, Toobin is a liberal, with a clear preference towards the progressive side of the court. This was also true in The Nine, and I don't think that's a serious problem. Everyone writes from a particular perspective; stating it is more honest than concealing it, and it's the reader's responsibility to weigh multiple sides. But I thought Toobin was largely fair to those he disagreed with in The Nine. Even Thomas received some defense against popular misconceptions. It probably helped that much of that book focuses on conservatives who became liberals as the court shifted, people like Sandra Day O'Conner for whom Toobin has clear respect. I commented in my review of the previous book that it didn't feel quite balanced, but it felt like Toobin was trying hard to be fair.

The Oath does not give that same feeling. Toobin hates the direction of the Roberts court, hates most of its 5-4 decisions, and strongly disagrees with the judicial philosophies of both Roberts and Alito. But more than that, he is clearly dubious that they even have coherent judicial philosophies. Maybe that's a legitimate critique, maybe it's not; regardless, I don't think he proves his case. The tone of much of the book is disgusted and angry rather than deliberate and relentless. Where Toobin engages with the thought process of Alito or, particularly, Roberts, the primary focus is to disagree with it rather than explain it. This happens to match my own emotional reaction, but I doubt it will be persuasive to someone who doesn't already agree with Toobin, and it hurts the quality of the history.

I suspect this would have been a better book if Toobin had waited ten years before writing it (still covering the same time frame). Some distance from the subject helps provide a more complete and thoughtful history. But, of course, it likely wouldn't have sold as well.

That said, one of the themes of this book is how the conservatives on the Roberts court are currently playing the role of radicals from the perspective of the judicial tradition, overturning settled case law and calling into question precedents that have been used to decide numerous cases. The liberals, in contrast, are currently mostly playing the role of conservatives: standing up for the principle of stare decisis, trying to maintain consistency with past decisions, trying to minimize disruptive change. Conservatives will argue (correctly) that this depends on one's time frame and that they're trying to overturn radical past decisions, but those radical decisions, whatever their merits, are now often more than fifty years into the past. I hadn't thought about the current Supreme Court ideological battles from that perspective and found it eye-opening. It also ties in well with Obama's judicial philosophy as Toobin presents it: preferring democracy, laws, and change from the ballot box, and with little appetite for controversial court decisions. Obama is a judicial conservative. He therefore favors the liberal wing as the court is currently constructed, but not because he has much appetite for pushing forward civil rights in the courts.

This is not the book The Nine was. It's repetitive if you've read the previous book (which you should, as it's the better book of the two), and I thought Toobin's critical balance was off. But it has a lot of interesting things to say about Obama's approach to the law, how the executive branch interacts with the Supreme Court, and the philosophy and approaches of the newer justices on the court. Recommended, although not as strongly.

Rating: 7 out of 10

Reviewed: 2016-04-30