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Originally published Friday, October 5, 2012 at 5:31 AM

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'The Oath': Jeffrey Toobin on clashing agendas on Supreme Court

In "The Oath: The Obama White House and the Supreme Court," New Yorker reporter Jeffrey Toobin uses his expertise on the U.S. Supreme Court to look at the court's ideological split during the John Roberts era and how it's affecting landmark court decisions. Toobin discusses his book Wednesday at Seattle Arts & Lectures.

Special to The Seattle Times

Author appearance

Jeffrey Toobin

The author of "The Oath" will discuss his book at 7:30 Wednesday, Benaroya Hall, 200 University St., Seattle, as part of the Seattle Arts & Lectures series; $5-$70 (206-621-2230 or
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Jeffrey Toobin is perhaps the most astute reporter writing about the U.S. Supreme Court. Toobin is a lawyer who morphed into a journalist, and his dispatches appear mostly in The New Yorker magazine. "The Oath: The Obama White House and the Supreme Court" (Doubleday, 325 pp., $28.95) is not his first book about the Supreme Court, and it might not be his last.

It might, however, be viewed eventually as the best book about the court during the opening half-decade of John Roberts' reign as chief justice.

After Barack Obama became president, the Roberts narrative became even more compelling than during the George W. Bush presidency. Toobin uses that narrative arc to good effect.

After deciding to become lawyers, Obama and Roberts — so different in their adolescent and young-adult experiences — established a common ground of sorts by graduating from law school at Harvard University, where each was a high achiever. (Toobin is also a Harvard University law-school alumnus.) As a U.S. senator, Obama voted against the confirmation of Roberts to the Supreme Court. Yet when Obama became president, Roberts administered the oath of office.

The outward civility could not mask the subtle hostility. As Toobin tells it, Roberts, like most justices of the court, espouses objectivity but is driven by a specific agenda. He wants to shape national policy to his self-styled "conservative" beliefs. Obama often finds those beliefs anathema.

Toobin explains how a supposedly liberal, Democratic president is actually a moderate about the U.S. Constitution, believing the semi- sacred document speaks for itself as it offers timeless values above partisan politics.

As for Roberts and his fellow Republican appointees Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy, the Constitution is a tool to be interpreted to fulfill a political agenda, as demonstrated by Toobin's evidence-based analysis. They are the true radicals, if "radical" is defined as promoting changing values under the guise of objective legal rulings.

That the Supreme Court is frequently divided five to four, with Roberts as part of the five, is certainly not news. The value of Toobin's reporting lies in his explanations of how those five bend reason to achieve their desired result.

Naturally, the four in the minority sometimes attempt to do the same, but with much less success in recent years. During most of the narrative, those four are Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer.

Substantial sections are also devoted to recent retirees, including Sandra Day O'Connor, John Paul Stevens and David Souter.

The book examines numerous recent rulings in depth, rulings about race-based affirmative action, gender inequality, the right to own guns, the ability to inject religious belief into the public arena, financing of political campaigns and many, many more issues.

For readers who want passages ripped from the headlines, Toobin provides reporting about the most divisive ruling of 2012, regarding the move toward more inclusive and efficient national health care and Roberts' unlikely role in the court's 5-4 decision upholding the law.

Toobin believes that in addition to other legal issues in this case, Roberts worried about the integrity of the Supreme Court. The large number of predictable 5-4 splits, after all, could have been interpreted as ideologically grounded. An unpredictable 5-4 split on this high-profile case seemed like a wise move to Roberts, Toobin surmises.

Roberts' law-based rationale, involving a complicated discussion of "commerce" versus "taxation" within the context of the health-insurance law, becomes less difficult to grasp because of Toobin's analysis.

All books that purport to provide an inside look at how the justices think and feel are filled with red flags. After all, reporters are heavily dependent on information from the justices' law clerks for the high-level gossip that gives such a book narrative drive. Many law clerks, loyal to the justices who hired them, practice sophisticated spin. It is Toobin's job to interpret the spin based on his daily observations, the content of the written rulings and other types of evidence. Toobin does his job well.

Steve Weinberg is a former Washington correspondent who covered the Supreme Court occasionally. He is the author of eight nonfiction books.

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