A DISCUSSION OF LAW AND JOURNALISM

Chief Justice Roberts and “The Oath”

Obama Oath

By Gillad Matiteyahu

Back in 2009, before I entered law school, I read “The Nine: Inside the Secret World of the Supreme Court”, by Jeffrey Toobin. At the time, reading about the behind-the-scenes workings of the legal world’s most powerful individuals reinforced my interest in going to law school. So, when Mr. Toobin’s next book came out — “The Oath: The Obama White House and the Supreme Court” — I was eager to read it.

While I wouldn’t recommend “The Oath” with the same passion as I would “The Nine”, I believe it would interest anyone curious about Supreme Court politics. Mr. Toobin’s new work sheds light on many little-known facts surrounding the major decisions of the Roberts Court.

The book begins by focusing on two Harvard Law graduates: Chief Justice John Roberts and President Barrack Obama. In preparation for the oath of office ceremony in 2009, the Chief Justice’s administrative aides contacted the Obama administration to determine the precise words, the pace, and the intonations of the oath. But these communications never reached President Obama himself. Mr. Toobin writes that President Obama’s staffers “either never noticed the PDF, lost it, ignored it, or forgot about it.” As a result, when the time to administer the oath arrived, neither President Obama nor Chief Justice Roberts were on the same page and the oath was noticeably botched on national television.

A day later, the President’s legal advisors suggested that, “out of an abundance of caution,” the oath be administered again. The redo took place in the White House Map Room and proceeded smoothly. It is on this image, with President Obama and Chief Justice Roberts standing in front of the Map Room fireplace, that Mr. Toobin pauses to compare the two men. While they shared a common background — Harvard Law School and Law Review — and possess similar characteristics — “powerful intellect and considerable charm” — their respective life experiences led each of them to different beliefs about the Constitution and the Supreme Court.  And these differences are surprising to those of us who think of Chief Justice Roberts as a conservative, and President Obama as an agent of change.

Mr. Toobin writes: “[I]n this crucial realm, 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.”

“The Oath” proceeds to focus on the evolution of the Roberts Court beginning with Chief Justice Roberts’ first term when his talent for negotiation and compromise brought the percentage of unanimous decisions up from one-third to an astonishing 45 percent. Unfortunately, this “era of good feeling” was short lived. The rest of the book tells the story of the three major constitutional issues addressed by the Roberts Court: gun control, campaign finance, and the Affordable Care Act.

The first major decision discussed is District of Columbia v. Heller in which the Supreme Court held that the Second Amendment conferred an individual right to keep and bear arms. Many of us are aware that this was the first Supreme Court case in history to interpret the Second Amendment in this manner. What I found interesting, however, is that this interpretation is relatively new altogether, having gained prominence within the National Rifle Association in 1977 — the year the conservative movement gained control of the NRA. To put the novelty of the NRA’s interpretation of the Second Amendment as a individual right into perspective, Mr. Toobin references a statement by Chief Justice Warren Burger after he retired: “[The Second Amendment] has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”

A recent Rolling Stone article, in the wake of the tragic Sandy Hook shooting, discussed how the NRA’s position against gun control laws does not reflect the views of the nation’s gun owners or its four million members. Yet the conservative movement, including a few Supreme Court justices, has successfully pushed its ideology to the point that it is now the law of the land.

The next landmark case was Citizens United v. Federal Elections Commission in which the Court, in another 5-4 split, held that the First Amendment prohibited the government from restricting campaign contributions by corporation and unions. Again, the conservative movement succeeded in overturning a century old law first codified in the Tillman Act of 1907 and built upon in the Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002. What few people know are the extraordinary actions taken by some justices to issue the far-reaching decision they truly wanted. This part of the book reads like a historical drama; you know how it’s going to end, but you always find yourself wondering and anxious, nevertheless.

Citizens United originally presented a very narrow issue to the Court: whether a 90-minute documentary prepared by a nonprofit organization that portrayed Hillary Clinton in a negative light would be considered “electioneering communication” per a statute that prohibits speech expressly advocating for or against a candidate within 30 days of a primary, or 60 days of a general election. It was a purely statutory issue.

Chief Justice Roberts drafted the majority opinion to address the narrow question presented. But some members of the Court were not satisfied with the limited nature of the case and saw Citizens United as their opportunity to change the law and deregulate campaign finance — a longtime conservative goal. Justice Anthony Kennedy wrote a concurring opinion arguing that the Court should go further and invalidate as unconstitutional certain statutes and overturn precedents regulating campaign finance. Chief Justice Roberts, aware that the conservative justices wanted to join Justice Kennedy’s opinion, withdrew his more measured one.

The liberals were outraged. The main dissent was assigned to Justice David Souter, who had previously announced his resignation and was writing his final dissent as a justice on the Court. Mr. Toobin writes that the idea to expand the scope of Citizens United beyond the narrow issue presented “reflected everything Souter had come to loathe about the Roberts Court — its disrespect for precedent, its grasping conservatism, its aggressive pursuit of political objectives.” Justice Souter wrote a scathing dissent in which he aired much of the Court’s dirty laundry. It was a dissent that the Chief Justice could not afford to have published.

To avoid Justice Souter’s demonizing dissent and protect his own credibility and the credibility of the Supreme Court, Chief Justice Roberts agreed to withdraw the majority opinion and put Citizens United down for re-argument in the next term — a rare move that would allow Chief Justice Roberts to avoid Justice Souter, who would have retired by the time of reargument. It also allowed the Court to reframe the issues in the case, thus expanding the narrow issue originally presented to a broad question that gave the conservatives grounds to issue the decision they truly desired. The decision in Citizens United was practically engraved in stone before the re-argument even took place. If this isn’t judicial activism and politicking by the Supreme Court, I don’t know what is.

The final monumental decision discussed in “The Oath” is National Federation of Independent Business v. Sebelius, in which the Supreme Court upheld the signature accomplishment of the Obama administration and ruled that the individual mandate requiring citizens to purchase health insurance was valid under the Constitution’s taxing power. The legal world was surprised, to say the least, especially after the way oral argument in the case had been reported.

Oral argument was scheduled for three days. On the second day, when the parties were slated to argue the validity of the ACA under the commerce clause, the four conservatives began their barrage of questions. (Justice Clarence Thomas, who had not asked a single question in over six years, remained silent, but his vote was never in question.). Justice Antonin Scalia’s questions were particularly noteworthy.

First, Justice Scalia mentioned the Cornhusker Kickback, which was a provision included in the original bill to entice Nebraska’s senator to sign on. The provision was removed after generating negative press. Justice Scalia knew this, Mr. Toobin writes, but “was merely reciting conservative talking points, instead of sticking to the facts of the case.”

And of course, there was the now famous broccoli. Justice Scalia asked whether the federal government could compel the purchase of broccoli because, well, it’s healthy, and everybody has to buy food. But again, Justice Scalia already knew the answer to this question. During the Sixth Circuit litigation, which Justice Scalia was surely familiar with, the government persuasively argued that Congress made a specific finding that the uninsured are causing premiums to rise because hospitals are forced to treat the uninsured. Hospitals cannot simply opt out of serving the sick and injured. On the other hand, a grocery store can turn away a person with no money. So the entire analogy to having to purchase broccoli was inapplicable, and the difference convinced a conservative judge to uphold the law as constitutional.

“The Oath” convincingly portrays Justice Scalia not as a thoughtful arbiter of the law, but as a man with a political agenda.

Ultimately, Chief Justice Roberts wrote the majority opinion to uphold the ACA. While conservatives derided him for breaking party lines, Mr. Toobin believes that the decision was an “act of strategic genius.” Chief Justice Roberts was aware that striking down the law would incite President Obama and the Democrats to rally against the Supreme Court, which had  recently issued controversial decisions advancing the conservative agenda (see Gonzales v. Carhart, Ledbetter v. Goodyear Tire & Rubber Co., Leegin Creative Leather Products v. PSKS, Inc., Arizona Christian School Tuition Organization v. Winn). In effect, Roberts sacrificed the decision in Sebelius, but laid the groundwork to rein in future commerce clause jurisprudence.

Early in the book, Mr. Toobin aptly summarizes the key fact of the Roberts Court: “As a man in robust middle age with life tenure, Roberts has the luxury of playing a long game, and he is.”

When Mr. Toobin writes another book, I’m in.

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