Guest post by Barry Edwards.
Do not read Jeffrey Toobin’s latest book, The Oath: The Obama White House and the Supreme Court, if you want to hold on to any illusions about the sanctity of the United States Supreme Court. The Court is just as soiled with rank political calculations as the other two branches of government.
If you are welcome in polite company, you probably see Brown v. Board of Education (which ended segregation in public schools) as obvious, even inevitable – not as a political necessity or acquiescence to a particular political party’s agenda. Similarly, Miranda v. Arizona (right not to testify against yourself) reaffirmed civil liberties guaranteed by the Bill of Rights and has become part of our expectations of legal process. These decisions are understood as guarantors of fundamental civil liberties in American courtrooms today. We are talking about fundamental rights, not expedient means to a political end.
Few people today would openly oppose interracial marriage (Loving v. Virginia), the right of married adults to use contraception (Griswold v. Connecticut), or the right of consenting adults to engage in oral sex (Lawrence v. Texas). These were all political decisions, but the politics was unspoken. Subterranean.
Bush v. Gore changed that. Bush v. Gore changed everything I thought and many of us thought about that hallowed institution: the United States Supreme Court. The Oath pulls aside the curtain on the political Oz that is the Supreme Court.
In infamously stating in Bush v. Gore that, “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” the Court was saying that their opinion was for the exclusive purpose of making George W. Bush President instead of Al Gore and that the reasoning employed to do so was so specious that it should not be applied to any other case. Toobin points out that Bush v. Gore has not been cited as precedent in another U.S. Supreme Court case since it was decided in 2000.
The Oath provides the exclamation mark in the statement that the Court is just as political as any of the three branches of government. The nine justices are nine more partisans whose goals are advancing their political agendas.
Toobin’s exposé attacks Antonin Scalia most viciously. Referring to the gun rights case Heller v. District of Columbia, Toobin writes that both “Scalia and Obama endorsed a Second Amendment that protected individual rights to own handguns but with limitations on more dangerous weapons [such as machine guns]. The difference was that only Scalia pretended the framers had dictated this result.” He notes that the Court’s 2012 term marked Justice Scalia’s “transition from conservative intellectual to right-wing crank.”
Toobin also shines a spotlight on the liberals’ political machinations: but of those, he seems more impressed than alarmed. He refers to her “nimble feat of jujitsu” as Justice Ginsburg manipulated a Supreme Court defeat into a legislative victory. The case was Lily Ledbetter. Ledbetter had been paid less than her male colleagues for about a decade, both genders receiving periodic pay raises, but the woman receiving smaller ones. The Ledbetter case turned on an interpretation of Title VII of the Civil Rights Act, which, the Supreme Court ultimately held, limited someone’s recovery in a sex discrimination suit to damages that occurred within 180 days of the initial complaint to the EEOC. The court barred most of Ledbetter’s claims as untimely. But, Toobin points out, Ginsburg took the rare step of articulating her dissent from the bench (she did not read her dissenting opinion, but summarized Ledbetter’s plight in lay terms) and concluded saying “[t]oday the ball again lies in Congress’ court. . . . [T]he legislature has cause to note and to correct this court’s parsimonious reading of Title VII.” (Or what passes for lay terms at the Supreme Court!) “Rarely,” Toobin states with seeming admiration, “in the history of the Court had a justice, speaking from the bench no less, called so directly on another branch of government to nullify a decision by her colleagues.” And it worked. Democrats then campaigning for the Presidential nomination were unanimous in calling for a change in the law, and the Democrats in Congress did change the law after Ginsburg popularized this once-arcane case.
The subtitle to The Oath is “The Obama Whitehouse and the Supreme Court,” but the book could also have been subtitled “Harvard Law School’s Bloodless Coup of the American Government.”
Toobin notes the insularity of the Supreme Court, pointing out that when John Paul Stevens (Northwestern University school of Law) retired, all eight of the remaining Justices had attended Harvard or Yale Law Schools. Kagen, Harvard Law Class of 1986, replaced Stevens. She was appointed by Barak Obama (Harvard Law Class of 1991). Toobin himself went to Harvard Law School (Class of 1986). Mitt Romney (Harvard Law Class of 1975), would have been appointing Supreme Court justices if the November election had turned out differently. Obama, Roberts, and Toobin all served as editors of the Harvard Law Review.
Toobin says that his book “is based principally on . . . interviews with the justices and more than forty of their law clerks.” I have to wonder if his naked assessment of the politics of the court will inhibit his future access. If so, that will be a shame. Toobin is an engaging writer. Between his wit, his knack for detail, and his ability to tell a story The Oath is a wonderful read. Just check your grand illusions at the door.
Barry Edwards is a Minneapolis criminal defense and family law attorney.