Excerpts of Toobin’s New Book: “The Oath”

September 15th, 2012

Mike Allen at Politico has some choice excerpts of Toobin’s new book about the Roberts Court: “The Oath.” The book comes out on 9/18. I already preordered my Kindle. Here are the key parts concerning ACA:

Chief Justice John “Roberts was a conservative and lifelong partisan Republican. … 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. … 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 … Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral if not its legal authority. … Gradually, then with more urgency, Roberts began looking for a way out. …

“[T]he tax argument stayed with the chief justice. In April and May, it started to become apparent to the other justices that Roberts was going ‘wobbly’ in his determination to overturn the law. Voters are never final until the decision are announced in open court. Votes at conference are by definition tentative. It is well within the bounds of acceptable behavior for justices to change their minds once opinions being circulating. Still, that rarely happens. But now, it appeared it was happening with Roberts – in the most important case of his tenure as chief justice. What happened next was unprecedented in recent Supreme Court history. [JB: Take a shot!] For pending cases, the Court has a nearly perfect record for avoiding leaks. But conservatives on the Court – especially law clerks – were so outraged that Roberts might betray them that they started to talk.

“The four conservatives had overplayed their hand with the chief justice. By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground. … [Justice Antonin ] Scalia was enraged at the chief. … With all the changes, the cross-references among the various opinions became confused. … By a vote of 5-4, the Court would uphold the heart of the Affordable Care Act. … [F]or Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. … Roberts at a minimum laid down a marker on the scope of the commerce clause. … Roberts’s opinion is potentially a significant long-term gain for the conservative movement. … Roberts bought enormous political space for himself for future rulings. … Did Roberts, by his late switch in the health care case, poison his relations with his conservative allies on the Court? That is very unlikely.”


Update:  Jeff Rosen has a review of Toobin’s book. Interestingly, he adds nothing new about the ACA case.

About the Affordable Care Act case, Toobin has no notable scoops. Building on earlier reporting by Jan Crawford of CBS News, he writes that Roberts, having initially decided to strike down health-care reform as an overly expansive reading of Congress’s power to regulate interstate commerce, began to have second thoughts in May of last year. But Toobin offers no insight into why he changed his mind, except for the suggestion that “by demanding that Roberts kill off the entire health care law, [his conservative colleagues] prompted him to look for some kind of middle ground.”