If there were a channel that aired behind-the-scenes shows about the Supreme Court, I would need a bigger DVR. The little things about the court fascinate me, just as the day-to-day work draws my interest.
My latest read, Jeffrey Toobin’s “The Oath: The Obama White House and the Supreme Court,” naturally fed every bit of that. It follows, as the name suggests, the work of the Court during the Obama administration, particularly the influence of Chief Justice John Roberts.
The book is a companion to Toobin’s earlier work “The Nine,” which I read a few years ago (during a period in which I was not posting about every book. But I did note it in the 2009 records.)
The great thing about Toobin’s writing is that he tells a larger arc story — in this case, the influences that led up to the landmark health care and campaign finance decisions — while also dropping in personal details about the justices that you don’t get from their written opinions.
Before reading this book I certainly didn’t know that Roberts played Peppermint Patty in his high school drama club’s production of “You’re a Good Man, Charlie Brown.” Same goes for Justice Ruth Bader Ginsburg’s past as a high school cheerleader or the fact that Justice Antonin Scalia has nine kids.
Toobin also points out how ardently former Chief Justice William Rehnquist insisted people call him “chief justice” while Roberts is more lenient in demanding the title. In a world of immense coincidences, the day after I read this section of the book, Roberts had an exchange with a lawyer at the court (as reported in the New York Times) illuminating just that point:
You may recall that during President Obama’s first inauguration, there was a little confusion about the oath, leading to Roberts administering it a second time. Toobin gives a background of the legal discussions surrounding whether it was technically necessary for a president to say the oath at all, but also includes the interesting detail of where the mulligan oath was performed at the White House:
“Presidents had long used the Map Room as a kind of hybrid, for occasions that they didn’t want to recognize as presidential business but that weren’t personal either. A decade earlier, for that reason, Bill Clinton gave his grand jury testimony to the Kenneth Starr investigation in the Map Room.”
Clearly we need a section in each room of the White House that tells the history of everything that happened there. I’m sure there is a wealth of fascinating juxtapositions.
If you follow the court at all, you know that Justice Anthony Kennedy has often been the swing vote that clinches a 5-4 majority. But Toobin perfectly describes the way in which Kennedy sides with liberals on some issues and conservatives on others:
“Kennedy was not a moderate but an extremist — of varied enthusiasms.”
Easily the most interesting background section in the book for me though is about former Justice John Paul Stevens. You’ll remember him as the guy who always wore a bow tie. Toobin writes about how Stevens’s family opened a hotel in Chicago in 1927, then known as the Stevens Hotel. It’s still there, now the Chicago Hilton. I just checked, and you can stay there tonight for $119.
Toobin’s insight to the interpersonal relationships between the justices is truly fascinating. Justices you would think of as mortal enemies because of their polar opposite positions on cases are great friends outside of their work. They even have fun with each other inside the seemingly boring text of their opinions. He writes about how Stevens did a clerkship with former Justice Wiley B. Rutledge, “an FDR appointee Stevens always revered.”
“When Stevens’s colleagues wanted to needle him, they would cite one of Rutledge’s opinions against him. (Kennedy referred to Rutledge three times in his Citizens United [v. Federal Election Commission] opinion.)”
That anecdote is why I enjoy Toobin’s work so much. Here, in one of the biggest decisions in years, a hotly anticipated case that was actually argued a rare two times, Kennedy couldn’t help but cite the decisions of Stevens’s mentor. Who doesn’t have co-workers like that?