This book is Jeffrey Toobin's delightful follow-up to his previous title 'The Nine', about the Supreme Court during the Bush years. 'The Oath' of course refers to the botched swearing-in of President Obama in 2009. Toobin is CNN's Legal Correspondent, a fine writer and, like just about everyone else here, a Harvard Law grad. He's also a bit of a wit, as he calls his chapter on the 2nd Amendment, 'Lawyers, Guns and Money' and at least in the Kindle version makes no reference to the songwriter Warren Zevon.
He provides some very good background on Obama's two nominations, Justices Sotomayor and Kagan. But the gist of the story is the continual Republican attack on stare decisis, the practice in the common law whereby precedents are followed. The attack is part of the legacy of the Reagan era and has been carried out by Messrs. Rehnquist, Scalia, Thomas, Alito and Roberts. As the Chief Justice, the universally-agreed- to-be-brilliant John Roberts exerts tremendous influence and, by virtue of his age, he is expected to do so for decades more.
For me, the most fascinating part of the book is the section on the rights recently bestowed on gun owners. For nearly two hundred years, just about everyone understood that the term "well-regulated militia" in the 2nd Amendment limited the private use of weapons. Indeed, the Republican platform as recently as 1972 had a plank on gun control. The libertarians in the 80's successfully turned the debate completely around and achieved their high point when Justice Scalia wrote the majority opinion striking down the DC gun control law. The high priest of original interpretation and opponent of an activist judiciary pretty much made it up as he went along.
Although Toobin doesn't address the future, it is somewhat consoling to know that Obama probably will have three more opportunities to nominate new Justices.
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