The Oath - Jeffrey Toobin

The Nine: The Sequel

by Jack Knorps

The Nine  was a difficult book to review because I deigned to describe each Justice.  While it was a terrific book, and more even-handed than The Brethren, I criticized the amount of material the author included on Supreme Court appointments and Bush v. Gore.  Toobin has, in fact, written an entire other book on the subject (Too Close to Call), and I do not think I will be reading that.  However, I have heard good things about The Run of His Life: The People v. O.J. Simpson and would consider reading that.  Toobin is a talented writer, and at times the words flow off the page.  He is a "quality author."  

That being said, The Oath is a better book than The Nine though there is almost nothing to distinguish the two from one another.  True, The Nine was about the period between 1993 and 2005--the longest period in which the same nine justices served together, and there is more material because the "length of the story" is longer.  The Oath is about the period between 2005 and 2012 (though primarily '08-'12) and clocks in at a perfect length of 300 pages.

A friend recently asked me what the perfect length for a book was.  It is a hard question and depends on the book but I have to say now that it is between 250 and 300 pages.

And I have to say that, though my review of The Nine (published January 1, 2012) was probably not read by Toobin himself, it is almost as if Toobin took my criticisms to heart and wrote a better book, substantially similar though it may be.

It is a subject that is hard to write about briefly.  The Brethren was very long, too.  So much has happened, but when we last left off, I had reviewed Five Chiefs and was bemoaning the Conservative Court--that is, the moment Justice Thomas replaced Justice Marshall (not the moment Justice Souter replaced Justice Brennan): the Court seemed like it was "fixed."

However, The Oath makes the point more than once that Justice Stevens, Justice O'Connor, and Justice Souter were all Republicans, and slowly but surely became part of the "liberal wing" of the Court.  I don't think this point can be emphasized enough.  If you look at the Court, you are looking at a group of extremely distinguished individuals, some of the most intelligent professionals in America.  That three of them abandoned their former party highlights my distaste for the conservative movement.  Toobin, I would imagine, shares this view.

When I reviewed The Nine I provided snippets about each Justice, and it was an extremely long review.  I will do my best to stick to the highlights in this review.  

The book is divided into five parts.  Part One focuses on Obama, his election, and the Court as it stood when he took office.  Part Two focuses on Second Amendment concerns and introduces Justice Sotomayor.  Part Three is basically about Citizens United.  Part Four introduces Justice Kagan.  Part Five is basically about the Affordable Care Act cases.  Oh and Part One also discusses Stern v. Marshall (briefly).  

Unlike Bush v. Gore, Citizens United and the ACA cases (which I wrote an extensive article and roadmap on) are both extremely interesting cases.  So obviously I like those parts.  Part One is good because it tells us some thing about Barack Obama that, shockingly, we probably did not know:

he went to law school when he was my age:

"His life as a public figure began in 1990, when he was twenty-eight and won election as president of the Harvard Law Review, the first African American to hold that position.  Obama practiced law for a dozen years and taught at the University of Chicago Law School for nearly as long.  But by the time he ran for president, Obama was above all a politician, and a cautious one.  Obama admired the heroes of the civil rights movement, including the lawyers, but he did not model his career on theirs.  Obama did not believe the courts were the principal vehicle for social and political change.  Elections, rather than lawsuits, were his battlefield of choice, and by 2008 he knew that the way to win the presidency was, in part, to embrace the individual rights theory of the Second Amendment." (22)

The Oath is quite timely but Toobin might revise that last sentence in light of the events that have transpired over the past four months.  We are living in an increasingly insane world where people are isolated and would rather go out in a blaze of glory and kill dozens of innocent people than attempt to grab that increasingly fictitious concept known as the "American Dream."  Chief Justice Roberts and Barack Obama, one might say, are both "living the dream"--but it would be wrong to say they are totally happy and their lives are perfect:

"Near the end of his memoir Dreams from My Father, which he published when he was thirty-three, Obama reflected on his education at Harvard Law School.  His tone was ambivalent.  'The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power--and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.'  Then, in a gesture that was common in the book, and in Obama's character, he gave the other side of the story: 'But that is not all the law is,' he continued.  'The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.'" (22-23)

The reason why I have no respect for republicans is because they lambast Obama as if he was the worst president ever and they have absolutely no idea what he has come up against.  Basically, whoever became president in 2008 needed to be FDR in order not to look like a douchebag.  Obama is not FDR.  People generally consider Lincoln the greatest President.  FDR is often near the top of the list, too.  For me, Obama is number three.  Some people put Kennedy up in the top five, but I'm not sure I could (shockingly I might even put Nixon above Kennedy).  I don't want to get into word games but I think Chief Justice Warren was probably the greatest Chief Justice (and Scott Brown took Ted Kennedy's seat in Massachusetts) and in three years, in my fantasy world, a different Warren could potentially be the greatest President, too.  

You can't blame Obama for putting Sotomayor and Kagan on the Court.  Sotomayor has recently become popular for putting out a book of her own--and she claims that Obama's book greatly inspired her.  It is quite shocking, though, to think of Chief Justice Roberts.  I made this point in The Brethren review, but I'll make it again: it is such a better job than President!  He could be Chief Justice for like, twenty-five, maybe thirty years.  Clearly, the Justices are the ones that see the change in the country more clearly than anyone else. 

I basically hate Chief Justice Roberts because he is so perfect:

"There was never a student like John Roberts at the La Lumiere School in LaPorte, Indiana, a quiet town near Lake Michigan, on the outer edges of the gravitational pull of Chicago.  It was a Catholic school, but it was independent of any order or diocese; the founders, all laymen, built the institution around an ideal of academic excellence.

"Roberts was not just the valedictorian of the class of 1973.  He served as captain of the football team, a varsity wrestler, member of both the student council and the drama club.  (He played Peppermint Patty in You're a Good Man, Charlie Brown; the school was all boys in Roberts's day.) He continued taking Latin, as a tutorial, after the school dropped the language as a requirement...." (8)

Toobin goes on to explain Roberts's excellent memorization skills and how ironic it was then that he messed up on The Oath that he gave to Obama at his inauguration.  But there is something sinister about Roberts's perfection: he is too much like Kennedy (except not quite as well-to-do from birth) and his conservatism is blind to the problems of society's have-nots.  However, he did get one case right--and it was an important one.

Toobin covers the drama around the Affordable Care Act and the various legal challenges to it in an economical and entertaining fashion.  The same goes for Citizens United.  Thus, Part Three and Part Five are excellent reading for law students.  (Citizens United is only really studied, however, in classes on First Amendment Law and Campaign Finance law--it doesn't affect Americans as individuals as broadly as the ACA--but it has enormous philosophical implications: read thought control).  What is most upsetting about Citizens United is that we never got to read Souter's dissent:

"The new majority opinion--which transformed Citizens United into a vehicle for rewriting decades of constitutional law--shocked the liberals.  Stevens assigned the main dissent to Souter, who was in the last weeks of his tenure on the Court. (He was actually working on the opinion when he announced his departure.) The Kennedy opinion reflected everything Souter had come to loathe about the Roberts Court--its disrespect for precedent, its grasping conservatism, its aggressive pursuit of political objectives.  Worse yet, Robert's approach to Citizens United contradicted a position he had taken earlier in the term.  At the argument of a death penalty case known as Cone v. Bell, Roberts had berated at length, the defendant's lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the briefs.  Now Roberts--the chief justice--was doing precisely the same thing to upset decades of settled expectations.  

"Souter wrote a dissent that aired some of the Court's dirty laundry.  By definition, dissents challenge the legal conclusions of the majority, but Souter accused Kennedy and Roberts of violating the Court's own procedures to engineer the result Roberts coveted.  The dissent, had it been published, would have been an extraordinary, bridge-burning farewell to the Court by Souter." (168)

But "The Ninety-Page Swan Song of John Paul Stevens" is a pretty good thing to read, too. I have written at length on Justice Stevens and how he is my second-favorite Supreme Court justice so I will not add much, except that next time I go to Chicago I will take a picture:

"....Still, the family never recovered its former wealth, and it lost control of the hotel. (It is now known as the Chicago Hilton and Towers; the 'S' is still there.)" (187)

This book is not quite as gossipy as The Brethren but it is more gossipy than The Nine.  In The Nine Toobin makes some pretty incredible statements about Justice Thomas, but in The Oath he makes Thomas out to be some kind of enormous evil genius/fool.  I do not even want to repeat what Toobin wrote about Thomas (this is why I think writers are the only more hated group than lawyers: if I were Thomas I would go kick Toobin's ass for the things he suggests and reveals).  But now I know that "Lady Kaga" is not, in fact, gay, so I make this plea:

***

Dear Justice Kagan,

I know that you probably get lots of date offers but I want to ask you out.  I am a 29-year-old law student and that means there is only about 23 years separating us.  That is less than the difference between Justice Douglas and some of his wives.  I promise you that, if you give me a chance, I will be a good and loyal partner to you, and help you achieve whatever it is you hope to do in this life.  I will never "leak" anything.  I am a good cook and would make a great stay-at-home dad.  I also have a tremendous singing voice, and am a soon-to-be-acclaimed filmmaker.  

If you'd like, I would be your law clerk for a year if you wanted to test me out.  If that's too much trouble, I understand (my credentials are nowhere near as impressive as Sparkle's), but if you just want to grab dinner sometime and see if we'd get along, that could be really cool.  I'll take the Bolt Bus down to D.C. and meet you some Friday evening when you get off work.  I'd even be willing to pick up the tab!  Please respond via comment if you are so interested. (And yes I am being totally serious.)  

***

Kagan also apparently kicked a 20-year cigarette habit.  On that note, I am going out to have one....

Kagan was also a classmate and friend of Toobin's.  He can't recuse himself from writing this book, but it highlights his own achievements.  While I don't necessarily agree with some of his statements (for example, that Justice O'Connor is "the most influential woman in American history" (207)) The Oath is more often than not, erudite and sensitive to the political climate of our nation's capital:

"Stewart [not Potter-Ed.] was wrong.  Congress could not ban a book.  McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life.  The influence of books operates in a completely different way.  Individuals have to make an affirmative choice to acquire and read a book.  Congress would have no reason, and no justification, to ban a book under the First Amendment." (166)

It is an important book that everyone should read. (Many will not because reading about law is boring--and honestly, having studied the law for the past two-and-a-half years, sometimes I just don't want to read about all of those Commerce Clause cases over and over again...) It also taught me how to correctly use parenthetical sentences, so it may improve your writing also (though I would hardly call this review one of my finest moments).  

Basically, if you are pressed for time, read The Oath.  Then, if you want, you can read The Nine for the sake of nostalgia.  The only problem with this book is that it preempts its prequel.  But a lot of people still prefer the first Back to the Future to the second one.  I would imagine the debate between fans of those two movies is quite similar to the debate that fans of these two books would have: it largely depends on how accurate their vision of 2015 will be.  I, for one, hope that there is another Warren on the way to "reshape" American society, and not another Clinton.