By Dr. Ken Broda Bahm
To celebrate the first Monday of October, I’m reviewing Jeffrey Toobin’s new book on the recent history of the Roberts Court. One thing is again made clear: Toobin knows how to find the story in the law. That is the same thing that all good trial attorneys are aiming for, and that makes “The Oath” definitely worthy of a spot on the litigator’s nightstand.
Good advocates are often legal junkies, and the book provides a timely window into an especially interesting period in the Court’s history. Beyond just serving up page-turning accounts of the cases that have marked recent terms – up to and including the surprising dynamics behind this summer’s 5-4 decision upholding the core of the President’s health care reform – Toobin delves more deeply into these legal dramas, placing them in the context of the justices’ prior professional lives, as well as the broader arc of the ideological campaigns that define our current political moment. The result is not the interpersonal drama between two men suggested by the cover and the event from which the book draws its title, the botched (and repeated) administration of the President’s oath of office on Inauguration Day. Instead Toobin provides an accessible intellectual history of the Roberts Court, and the stories carry a few practical lessons not just for appellate lawyers, and and other Court watchers, but for anyone who appreciates the larger picture of a legal decision’s many roots.
Jeffrey Toobin has more access to the Court than most in the media, and based on interviews with the justices themselves, more than 40 of their law clerks and others involved in the cases, “The Oath” gives detailed attention to a number of the legal controversies that have shaped our recent history, including:
- The first Act the president signs into law, the Lilly Ledbetter Act, growing out of a furious dissent by Justice Ginsberg;
- The District of Columbia v. Heller case upholding an individual-rights view of the Second Amendment’s right to keep and bear arms;
- The recent confirmations of Justices Sonia Sotomayor and Elena Kagan;
- The Citizens United decision opening the door to unlimited corporate spending in elections, as well as the unusual rebuke the President delivered in his 2010 State of the Union Address;
- The Affordable Care Act decision, focusing on the principal case, National Federation of Independent Business v. Sebelius, on the individual mandate to buy health insurance.
Each of these is presented as a short drama, speaking not only to the law but to the politics and the personalities that shape it. Though the individual stories are addressed in separate chapters, a few themes run through the book, each carrying an associated lesson for those who seek to understand and persuade judges.
The Judge’s Back-Story: A Lesson in Influences
At several points throughout the book, Toobin interrupts his coverage of the cases to provide insightful portraits of the justices themselves. The more closely you look at a judge, the more you see the advocate they were before they donned the robe. Ruth Bader Ginsberg, for whom Toobin seems to have the greatest respect, was a crusader in her early life, focused on overturning laws that treated men and women differently. Putting that experience to practice on the bench, for example when striking down the single-sex policy at the taxpayer-funded Virginia Military Institute, she was able to draw from the history of sex discrimination law including the many that she herself had argued. Toobin contrasts this with other histories, like John Roberts’, who as Solicitor General under the first President Bush focused on procedural defenses to environmental, civil rights, and other suits explicitly focused on ‘public interest.’ “Roberts came of age as a lawyer,” Toobin writes, “when controversies about procedural doctrines were hot topics” as the activism of the Warren Court was being replaced by the narrower constraints of the Rehnquist Court. That created in Roberts an appreciation of a judge’s limits.
The message is that judicial philosophy grows out of experience, decisions and decision making style is often understood through a judge’s prior life, and an advocate’s frame of mind that is never fully left behind. Know the lawyer, know the judge.
The Ascent of Originalism: A Lesson in Motivated Reasoning
We’ve written before that motivation guides a judge’s search for reasons. One of the most interesting sections of the book focuses on the rise of the constitutional philosophy known as “originalism,” or the view that the Constitution should be interpreted as the words were understood by the men who wrote them. Toobin chronicles the increasing influence of that approach, led by the often unseen hand of the ‘silent justice,’ Clarence Thomas. That view finds its most important expression in the 2008 ruling in District of Columbia v. Heller that overturned decades of Supreme Court precedent considering the right to bear arms as a “collective right” that did not interfere with the government’s ability to regulate individual gun ownership. Tracing the emergence of the once-obscure view that gun ownership is instead an individual right, Toobin chronicles the germination of that idea from the NRA, through the law schools, then the federal bench, before ultimately reaching its destination on the U.S. Supreme Court. Through the Heller decision, the book contrasts the majority decisions of Scalia and dissent of John Paul Stevens, both serving as competing history lessons on the American colonists’ experiences with collective and individual defense, but both thoroughly steeped in the doctrine of originalism: not taking the language as given and applying a contemporary understanding, but unearthing incomplete and often-conflicting early histories in order to try to understand the intent of the original framers.
Both Stevens and Scalia draw from the same historical record of course, but reach opposite conclusions on the original understanding of the amendment. The message is that advocates need to speak as much to what motivates the judge as to the specific facts and the law. Toobin writes at the end of the book, “There was some irony in the conservative embrace of originalism,” in this and other cases including the Affordable Care Act. “With their success, driven by people, ideas, and money, conservatives proved just how much the Constitution can change, and it did.”
The Affordable Care Act Verdict: A Lesson in Deliberation
Of course, the case that generates the greatest popular attention, based on both its inherent drama and its recency, is the verdict in the cases involving the Affordable Care Act, striking down the state’s Medicare penalties, but otherwise leaving the Act intact. That story doesn’t pick up until late in the book (Part Five, page 263), and contains no bombshell revelations that haven’t already reached popular attention. Still, Toobin provides a fascinating account of the controversy: the wind-up in the federal courts, the oral arguments, the discussions among the Justices, and the ultimate verdict.
It is the discussions among the Justices that carry the greatest interest, since that part is often invisible to the public. As Toobin describes it, the nine sat around a conference table, initially coming to a 5-4 vote in favor of overturning the law. The one Justice most often the swing vote between the Court’s liberal and conservative wings, Justice Kennedy, was firmly on the conservative’s side. It could have ended there, as many had expected including me (I had an entire blog entry prewritten for the morning of the decision, originally based on a prediction of overturn). As Toobin describes it, however, the conservative majority at that time overplayed their hand, pressing Roberts to join them in declaring the entire act unconstitutional. Roberts, in another example of motivation leading the way, instead started searching for an alternative. As Toobin writes,
“Roberts had dual goals for his tenure as Chief Justice – to push his own ideological agenda, but also to preserve the Court’s place as a respected final arbiter of the nation’s disputes. Scalia’s vision of the Justices as gladiators against the President unnerved Roberts. A complete nullification of the health care law on the eve of a presidential election would put the Court at the center of the campaign, especially if the majority in the case consisted only of the five Republican appointees. Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral, if not its legal authority. As Chief Justice, Roberts felt obligated to protect the institutional interests of the Court, not just his own philosophical agenda. Gradually, then with more urgency, Roberts began looking for a way out.”
When he found that way out by upholding the individual mandate, not as an exercise of the Commerce Clause, but as a taxation power, there was an uproar from the right. Scalia himself was reportedly furious, and several unnamed law clerks leaked the story of the deliberations. Beyond confirming the impression of a deeply divided and largely partisan Court, the account also carries this lesson, familiar to anyone who watches mock trials: The first vote definitely sets the stage, but it doesn’t end the play. Jurors and judges alike will wrestle with the implications of their decisions, and advocates are best off preparing their decision makers, not just for an isolated verdict, but for deliberation as well.
The Supreme Court’s next term, starting today, promises more decisions that will define our political landscape for many years to come. The hot ones are likely to include a verdict on affirmative action stemming from the University of Texas’ admission policy, the application of the Voting Rights Act, the aftermath of the Citizens United campaign finance case, and in all probability, the fate of the federal Defense of Marriage Act. The basic conflicts outlined in “The Oath” will continue to play out.
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Other Posts on Judicial Persuasion:
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
- Aim Your Oral Argument at Your Judge’s Motivating Principle
- Sympathy for the Devil, but Empathy for Your Judge
- Remember, it’s a Sidebar, Not a Bar Fight: Reason With, Not At, Your Adversary and Judge
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Toobin, Jeffrey (2012). The Oath: The Obama White House and the Supreme Court. Doubleday.
Permission to use the image and a review copy of the book provided by Knopf Doubleday Publishing Group