THE OATH. By Jeffrey Toobin. Doubleday. 352 pages. $28.95.
The Constitution is the most sacred text of American civic religion. To declare a law unconstitutional in our modern political discourse is on par with saying it is sinful. Like biblical passages, constitutional language often is invoked as an argument stopper, infallible truth that cannot be challenged. The words of our Founders speak to us across the ages.
If only we could agree on what those words mean. The debate over the meaning and application of the Constitution stretches back to before its origins, as those who were dissatisfied with the Articles of Confederation engineered a meeting that ended up producing an entirely new governing document. As Chief Justice John Roberts has observed, ours was the first constitution to function as more than a political document. It was binding law.
But to forget the political element of the creation and interpretation of the Constitution, especially in our time, is to misunderstand the power of the Constitution and the roles of the branches entrusted to both defend and interpret it. Toobin guides us through the peculiar place of the Constitution in law and politics in this latest work, “The Oath: The Obama White House and the Supreme Court.”
Toobin opens with what has become something of a historical footnote: the botched administration of the presidential Oath of Office, in which two Harvard Law School graduates mangled a 44-word recitation. Chief Justice John Roberts failed to recall the precise wording of the Oath, producing an awkward moment in which he and the president-elect were speaking over each other in an effort both to correct on the fly and dispense with the ceremonial incantation.
Despite its title, “The Oath” thankfully is about more than this minor episode. Toobin uses this vignette as a conceit to plumb the respective roles of the executive and judicial branch regarding some of the great constitutional questions of our day. He examines the interplay between the White House and the Supreme Court on gun control and reproductive choice.
The Citizens United campaign finance decision and Obama’s subsequent criticism of the court during his 2010 State of the Union Address are used to illustrate the personal nature of the tension between the two branches. The book ends with the court rendering judgment on the Affordable Care Act, the centerpiece of Obama’s first term.
While Toobin brings his fly-on-the-wall sensibility to his sections on the White House, the most interesting passages are those devoted to the court. This was after all the subject of his most celebrated book, “The Nine.” As with “The Nine,” the new book incorporates substantial biographical detail on each current justice and the three most recent retirees: Justices Sandra Day O’Connor, David Souter and John Paul Stevens. The effect is that the justices emerge as more than dour figures in black robes. They become human. Nowhere is this more apparent than in the depiction of Justice Antonin Scalia weeping as Chief Justice Roberts mourned the loss of Justice Ruth Bader Ginsburg’s husband, Marty, a cherished friend to many of his wife’s colleagues.
In his portrayal of Scalia, Toobin manages the subtle feat of demonstrating the influence of judicial humanity on constitutional interpretation. These are, after all, people with policy preferences, political leanings and substantial intellects. Despite the platitudes of nominees at confirmation hearings, to assume justices would check their talents and opinions in the judicial cloakroom before taking their seats on the bench is asking too much.
Toobin suggests that this is not even desirable, whatever the ideological orientation of the justice. He gently defangs the image of the court as a political institution, making us more comfortable with the idea that Supreme Court justices, too, have preferences. Moreover, he shows that judicial activism is not confined to one particular political or jurisprudential ideology.
It makes perfect sense that the court is a political institution. It is, after all, interpreting a body of law. The law itself is the product of intense political activity, so to bring political judgment to bear in evaluating the law would seem appropriate to some extent. Equally as important, the court is populated by nine individuals each with very strong competing notions about how the Constitution should be interpreted. Even those who fall into the same ideological camp, such as Justices Stephen Breyer and Ginsburg, for example, may take different routes to reach the same result.
In the end, “The Oath” leaves the reader in much the same place that I find my constitutional law students by the end of the term: aware of the unique space the Supreme Court occupies within the realm of law and politics.
Contrary to the demands of our sound-bite culture, the issues facing the modern court cannot be oversimplified. As the recent health care decision and the events leading up to it would indicate, the court serves an institutional and political function in addition to leading the judicial branch. To navigate such waters without the ability to appeal directly to popular support may be both a blessing and a curse. But to think that the judiciary simply operates above the fray or at a remove from political considerations is to miss the point of the battle we call the separation of powers under our Constitution.
Reviewer John Simpkins is the Fellow in Comparative Constitutional Law at the Charleston School of Law.