The Oath

Jeffrey Toobin’s The Oath: The Obama White House and the Supreme Court (2012) chronicles the ideological differences between the Obama administration and the Roberts Supreme Court. Though both leaders are young and charismatic, they are in opposition on virtually every issue. Surprisingly, Obama is the constitutional conservative, while Roberts is a radical, bent on overturning decades of legal precedent. The book, released just before the 2012 presidential election, lays out the long-term legal stakes of the election results. Toobin, a writer and legal expert, previously wrote The Nine, an account of the inner workings of the Rehnquist Court.

Toobin gathered his material from personal interviews with each of the justices and more than forty of their law clerks, constructing it into a narrative of the Roberts Court’s early years, an era marked by a series of 5 to 4 opinions along party lines. He includes not only insights into the court’s cases but small anecdotes, such as when Obama was offered the chance to play basketball at “the highest court in the land,” the basketball court that sits one floor above the Supreme Court itself.

The book opens with Barack Obama’s inauguration. Chief Justice Roberts, administering Obama’s oath of office, flubbed the words. According to Roberts, he had indeed memorized the words but was thrown off-balance by Obama’s unexpected timing. Roberts, a perfectionist, was willing to participate in a do-over.



Throughout the book, Toobin develops the argument that although Obama and Roberts shared many similarities: both were Harvard-educated men, highly intelligent, and charming. Obama proved a constitutional conservative interested in precedent, while Roberts became a radical interpreter of the constitution, quick to overturn everything that had gone before. Toobin suggests that Roberts is a highly partisan justice eager to usher in ideological changes, while Obama was more in favor of gradual, incremental progress.

Toobin states Obama criticized activists of the 1960s for pushing change through the courts rather than the rest of the political process, believing the courts should remain static in their protection of basic rights rather than create new rights. That notion, as Toobin notes, may reflect a larger change, as the liberal activists of the 1960s, working to strike down laws “not to their liking” gave way to conservative ones in the modern era. Instead, Obama believed elections, not judicial appointments, were the most important battlefield.

In Part Two of the book, Toobin moves away from the contrasts between Obama and Roberts to explore several constitutional issues faced during Obama’s first term, including what Toobin calls Obama’s “unrequited” attempts at bipartisanship. Though he reached out across party lines, he was frequently rebuffed. Toobin notes how changes in the Court’s conservative-majority justices seem to reflect changes in the Republican Party; when conservative justice Sandra Day O’Connor stepped down, she lamented, “What makes this harder is that it’s my party that’s destroying the country.” She was replaced with Obama pick Sonia Sotomayor.



Toobin explores the current make-up of the court, observing that Anthony Kennedy tends towards a “judge-centered” approach to interpreting the law, that Antonin Scalia is increasingly contemptuous towards Congress, that liberal Stephen Breyer is disheartened at writing so many dissents, and that Ruth Bader Ginsburg and Scalia, though ideological polar opposites, maintain a friendship outside of their work.

The Citizens United case is particularly central to the book. This ground-shaking 5-4 decision rejected the idea of campaign finance reform in a broad opinion authored by Justice Kennedy. Toobin reveals here for the first time that Roberts initially wrote a narrow opinion himself, which stated only that the McCain-Feingold Act on campaign finance reform did not apply to Citizens United, a group that produced a documentary vilifying Hillary Rodham Clinton. Roberts then chose not to make his opinion the majority one and went with Kennedy’s statement that McCain-Feingold’s restrictions on corporate election funding should be overturned altogether. Toobin interprets this decision as Roberts’s choice to help the Republican Party “a lot” rather than “a little.”

This is in contrast with the Affordable Care Act decision that closes the book. Though Roberts had begun his career as Chief Justice with a string of 5-4 decisions, he would ultimately cast the tie-breaking vote in a 5-4 decision with the liberal justices to uphold the ACA. Though Toobin depicts Roberts as a highly partisan ideologue, this decision was one that transcended party and put the interests of the Supreme Court itself above his political beliefs. His decision stems from a fear of making the court too overtly partisan by striking down Obama’s signature legislation, which he believed would damage the Court. Though Roberts initially planned to vote to strike down the ACA, he changed his mind.



Toobin leaves open the question of how the Court will operate after the 2012 election, since there was no way of knowing who would win. Toobin warns that although Roberts did not venture into extremism, he continues to act as a judicial activist and a Republican partisan.

The Oath received mixed reviews for Toobin’s analysis of the Roberts Court; the New York Times described his arguments as “reasoned” but complained that he sometimes resorted to outright invective against certain justices, such as Scalia. The Washington Post found flaws in his portrait of a constitutionally conservative Obama, pointing out that he changed his mind on same-sex marriage and repealed “Don’t Ask, Don’t Tell,” and said Toobin’s work would have been stronger with a more nuanced depiction of both Obama and Roberts.