By Chet Yarbrough
By: Jeffrey Toobin
Narrated by: Robertson Dean
Jeffrey Toobin whines about an activist Supreme Court in “The Oath”. The immaturity of Toobin’s rant detracts from the quality of his research. Crying “judicial activism” is like “pissing in the wind”; i.e. it blows back in the face of the accuser. Judicial review is inherently subjective. Judicial activism is a forgone conclusion; the principal issue is whether a liberal or conservative majority is in control of the Court.
Toobin’s book, “The Oath” is a dissection of the United States Supreme Court’ justices and their most current decisions–Toobin’s earlier book titled “The Nine” is also about Supreme Court’ justices but “The Oath” is much more interesting and informative when it comes to understanding “The Nine’s” juridical’ personalities and interactions.
Whether you are a Democrat or Republican, jurisprudence is interpretation of law that has always had an activist political dimension. When you have President Clinton, an attorney by education, defending himself by saying “It depends on what the meaning of the word ‘is’ is.”, one knows judges as well as Presidents are in “Alice’s wonderland” where right and wrong have become fungible concepts. Activism is the consequence of judicial review.
Sadly, if one is a liberal, the change in the Supreme Court is of great concern because of the following majority decisions: 1) to allow corporate financing of political campaigns, reversing much of the McCain/Feingold restrictions on campaign financing 2) to refuse to acknowledge technological change as a criteria for re-interpreting the original intent of the constitution, and 3) to question the validity of Roe v. Wade, Affirmative Action, and Brown v. Board of Education.
Happily, if one is a conservative, Toobin’s evaluation of the majority of the court shows Clarence Thomas, the now deceased Antonin Scalia,
Samuel Alito, Chief Justice John Roberts, and Anthony Kennedy (as a swing vote) for conservative causes.
However, Toobin constructs a nuanced description of these justices that shows them to be individuals that come to their conservative beliefs from different perspectives.
Chief Justice Roberts is characterized as the most socially adept, and possibly most competent, of the conservative wing of the court. Associate Justice Scalia is the most vituperative and colorful. Associate Justice Kennedy is the most proud and pedantic. Associate Justice Thomas as the most silent and colorless, and Associate Alito as the most anti-social of the nine; however, as a block, these five justices and their judicial activism seems equivalent to the years of the Warren’ and Berger’ courts, though with conservative rather than liberal activism.
Associate Justice Ginsburg
seems the most diminutive and physically tough of the liberal bloc with a strong belief in equality of opportunity for women.
Justice Breyer seems the most disillusioned and disappointed of the justices in the Court’s change of direction.
Justice Sotomayor represents a new wave in the court with extensive litigation experience in international commercial matters while living life as an American female Latino in a white and male dominated environment.
Elena Kagan comes across as a consensus builder with little litigation experience but great administrative skill.
Associate justices O’Connor, Souter, and Stevens are now retired but their retirement leaves a legacy of judicial activism, tempered by experience, that leaves the court on a different path; equally activist but demonstrably more conservative.
The biggest surprise of the Court, to date, is the decision on the “Affordable Health Care Act”. With Chief Justice Roberts’ supporting vote, the Act is upheld by the Supreme Court, 5 to 4. Toobin addresses that momentous decision in the last chapters of his book.
“The Oath”, once it gets past Toobin’s rant about judicial activism, is an insightful look at the Supreme Court and how important a role it plays in the checks and balance of government; just as predicted by the founders of the Constitution. As a liberal, one may tremble with fear about the direction of the court but it is the same fear and trembling that must have been felt by conservatives during the Warren’ and Berger’ Courts of years past. As a voting public, America gets what it deserves.