Obama vs. The Supreme Court

By GARRETT EPPS

Published: September 28, 2012


The Oct. 22, 2007, cover of Time magazine displayed a portrait of Chief Justice John Roberts above the line does the supreme court still matter? “As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law,” David Von Drehle lamented in the accompanying article. “The court’s ideology is playing a dwindling role in the lives of Americans.”



By Jeffrey Toobin



325 pp. Doubleday. $28.95.

.Less than five years later, not even the boldest contrarian would write those words. With Congress and the executive branch all but paralyzed, the Supreme Court today sits firmly in the center of American public life; its decisions crucially affect matters of race, sex, economics, political power and even national security. And in official Washington this fall, the most intriguing personality is neither Barack Obama nor Mitt Romney but John Glover Roberts Jr.



Roberts cemented his central position last June when, in a stunning separate opinion, he broke with his four conservative allies to affirm — even though on narrow grounds — the constitutionality of President Obama’s health care program. The decision left conservatives fuming, liberals grateful, and everyone confused.



In “The Oath,” Jeffrey Toobin recounts the last four years of the court as a duel between the chief justice and the president. As Toobin notes, they make near-­perfect antagonists: “Both were products of Chicago and its environs, and both were graduates of Harvard Law School. Both even served on the Harvard Law Review, the student-run scholarly magazine.” Needless to say, their political philosophies differ. Toobin calls Roberts an “apostle of change,” seeking to move the law dramatically to the right, and Obama a “conservative” who wants the courts to leave politics alone.



From the moment Obama took office, the two men stumbled into conflict. Roberts delivered a garbled version of the presidential oath at Obama’s inauguration, leading to a hurried do-over in the White House Map Room the next day. Precisely a year later, with Roberts in the majority, the court, in Citizens United v. Federal Election Commission, declared all-out war on a key Democratic goal, campaign finance regulation. A few days later, Obama looked down at six of the nine justices, seated in the House chamber for the State of the Union address, and gave them an extraordinary public scolding. The decision, he said, had opened “the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” Then Obama’s signature initiative, the Patient Protection and Affordable Care Act, came under legal assault. When the justices walked into the courtroom on the last day of the 2011-12 term, it seemed that fate had delivered Obama into Roberts’s hands.



But the conflict narrative faltered. Instead of destroying “Obamacare,” the chief justice single-handedly saved his rival. The much-reviled “individual mandate” was not valid as a regulation of commerce among the states, he concluded, but it was valid as an exercise of Congress’s power “to lay and collect taxes.” In addition, Congress can offer states new funding to expand the Medicaid program, but can’t cut off all Medicaid funding to states that choose not to accept it. Roberts’s opinion did include some strong conservative rhetoric; but for all that, as Justice Ruth Bader Ginsburg pointedly noted from the bench, the act survived “largely unscathed.”



Toobin is one of the most talented reporters covering American law. Where else but in “The Oath” would we learn that Franklin Pierce was the only American president ever to “affirm” rather than “swear” the required oath of office — or that the only full audio file of Obama’s second swearing-in was captured by Wes Allison of The St. Petersburg Times, using his “Panasonic RR-US361 digital recorder”? The book opens with an absorbing explanation of how the oath went wrong. In Toobin’s account, the two men did not know where each planned to pause during the recitation, so Roberts was startled when Obama jumped in after the first phrase and both, off balance, then mixed up the words.



But the rest of the book is devoted to drama inside the court, which is harder to report. When oral arguments ended on March 28, most observers (including, as he gamely admits, Toobin himself) predicted that the act would be savaged. By the end of June, however, Roberts had apparently left his four conservative allies in the lurch. “The Oath” adds little to what is already known of these events, nor does Toobin tell us who was responsible for the surprising wave of leaks, mostly critical of Roberts, coming from the court before and after the decision (which could be traced, he speculates, to “petulant law clerks,” not disappointed justices).



“The Oath” does not pretend to be an inside account of the health care case. Toobin’s goal instead is to explain the evolution of the Roberts court, and to do so he must weave together an almost overwhelming number of subjects — the rise of the personal “right to bear arms”; the assault on campaign finance regulation; the administration’s inept handling of lower-court judicial nominations; the unquiet afterlives of the retired justices Sandra Day O’Connor, David Souter and John Paul Stevens; the confirmation of Sonia Sotomayor and Elena Kagan; Virginia Thomas’s bizarre quest for an apology from Anita Hill; and Justice Antonin Scalia’s “transition from conservative intellectual to right-wing crank.” He must also summarize prodigious amounts of legal doctrine and procedural complexity to place the court’s decisions in context. At times, the reader may be daunted by it all.



Knowledgeable observers will also find much to debate in Toobin’s account of the court’s turn to the right. He entitles one chapter “The Thomas Court,” but there are two sharply divergent schools of thought about whether Clarence Thomas is actually the “intellectual pathbreaker” behind the court’s Second Amendment and campaign finance jurisprudence. And although Toobin sees Citizens United as a triumph of Roberts’s partisan agenda, the facts related in “The Oath” can be read differently — to depict a rookie chief justice, nervous about moving doctrine too fast, reluctantly hustled along by an impatient conservative bloc.



None of the above should discourage readers from plunging into “The Oath.” Not until scholars a generation hence gain access to the justices’ papers are we likely to have a more useful, or more readable, picture of this oddly assorted group of judges at this moment in history. But at the end of “The Oath,” both the court and its chief justice remain enigmas. That’s not a failure of reporting. The decision in June was not the end but the beginning of a story. The meaning of Roberts’s opinion in the health care case will be clear only when we know the next few appointees to the court. A stronger conservative majority will widen the libertarian trail he blazed in his health care opinion. A new liberal majority will have little trouble limiting his words to the vanishing point.



In either case, I suspect we won’t see much more scoffing at the court’s importance, at least during the quarter-­century or so John Roberts is likely to remain its chief. He has shown himself to be comfortable with power, independent of both enemies and friends, and capable of leading the kind of long-term legal campaign that made historic figures of chief justices like John Marshall and Earl Warren. As Toobin writes at the end of “The Oath,” “it’s John Roberts’s court now.”





Garrett Epps is a professor of law at the University of Baltimore and a legal correspondent for TheAtlantic.com. His new book, “Wrong and Dangerous: Ten Right Wing Myths About Our Constitution,” has just been published.