Jeffrey Toobin should not be allowed near any law school in the country, at least not near courses in constitutional law, for the best of reasons.

His books are decoder rings. They pierce the arcane reasoning of the law, its elaborate language, its encrustations of conflicting doctrines that lawyers parse on the way to the heart of the matter.

In short, Toobin does not teach legal reasoning. Instead, his books – The Oath in particular – teach us decision points, results and consequences based on key cases, their contexts and the “life views” of the judges who decide them. He does not do justice to many of the details of important decisions. That is not his goal. Much more could be said about law, history and political science than his brisk summaries and conclusions. Go elsewhere for deep analysis. What Toobin shows us is that law lives and breathes as it stumbles and recovers and veers off on tangents, and goes on to the next generation. At the highest level of the judiciary, for all its rules and precedents, the law is a political instrument and it advances political ends.

The Oath takes its title from John Roberts’ memory lapse at Barack Obama’s first inauguration. The author devotes several pages to White House aides deliberating whether to invite the Chief Justice to re-administer the oath in the precise Constitutional language, and if so, with how much public ceremony, if any. It is a fit introduction to the practice of law and politics.

From there, the book is a series of mini-biographies of Supreme Court justices in this century and the key role each played in particular decisions. President Obama is important, to be sure, but he is one character among many. After all, in 223 years, there have been 44 Presidents but only 17 chief justices and a total of 112 justices of the Supreme Court. While a president cannot serve more than eight years, justices serve for life. Their average tenure is 16 years and five of the nine current justices have served longer. Jeffrey Toobin’s point is that who they are and what they bring to the highest court of the land are at least as important as doctrinaire Constitutional principles and precedents. 

His books are famously gossipy, peppered with delectable insider observations that, given the traditional sensitivities of the Court and its people to leaks, necessarily lack citation to sources. Toobin has a distinctly liberal bias. Nevertheless, he gives his devils their due. In fairness, there are conservative scholars who share his uncomplimentary observations about Justice Antonin Scalia’s temperament, for example, and Justice Clarence Thomas’s nearly supine lack of participation in oral arguments before the Court. Most important, lawyer Toobin does not spare liberals.

The central premise of this book contrasts the approaches of the President and the Chief Justice toward the “trajectory” of the Court:

“[The] roles of the two men were the opposite of what was widely believed. It was John Roberts who was determined to use his position as chief justice as an apostle of change. He was the one who wanted to usher in a new understanding of the Constitution with dramatic implications for both the law and the larger society. And it was Barack Obama who was determined to hold on to an older version of the meaning of the Constitution. Obama was the fellow who was, in the words of a famous conservative [William F. Buckley, Jr.], standing athwart history yelling ‘Stop!’”

The change John Roberts and the conservative members of his court seek is a return to the concepts of the founders. It is testimony to Toobin’s intelligence and deftness of expression that he can boil down their interpretive touchstones of “textualism” and “originalism” to, respectively, 13 and 20 words. In that many words again, he skewers both, pointing out that the drafters of the Constitution viewed their work as a living document, not an itemization of stale recitations to be applied parsimoniously.

Toobin does not spare President Obama: “the failure to engage on legal issues extended to more than just [delays in filling lower court] judgeships. To the extent there is a contemporary liberal agenda, it consists roughly of a pallid embrace of the status quo…” The Oath concludes: “Obama and his party were the ones who acted like the Constitution remained inert; they hoped the Constitution and the values underlying it would somehow take care of themselves. That has never happened and it never will. Invariably, inevitably, the Constitution lives.”

Toobin draws his best examples from cases on campaign finance reform, gun rights and the Affordable Care Act. We read how the justices approached the issues and each other, how litigants before the court influenced opinion writing in ways they may not have realized, and how a few details, seemingly small, came forth to shape the outcomes of the seminal cases of this century.

Following in the steps of Oliver Wendell Holmes Jr., eminent Supreme Court justice from 1902 to 1932, the author shows us how law is derived more from experience than logic. The opinions judges write do not come from abstract deduction or formalisms, but rather from their view of “the felt necessities of the time.”

Toobin is well positioned to write this book. He has studied the Court carefully and won considerable critical favor with The Nine: Inside the Secret World of the Supreme Court in 2007. Like President Obama and Chief Justice Roberts, Toobin is a graduate of Harvard Law School and served as an editor of its highly regarded law review. He is a writer gifted with dramatic style and powerful insight. His justices are flesh and blood, as are their views of law. Toobin shows why we should not pretend otherwise.

Tom Phillips is a retired attorney in Chicago, Illinois. In his day, he practiced law and government relations, often together.

comments powered by Disqus