Review of The Oath by Jeffrey Toobin
Like many interested observers, I had no idea how the Supreme Court would rule on the Affordable Care Act, but I assumed that the decision would be either 6-3 in favor (with Roberts and Kennedy joining the liberal wing of the court, and the vast majority of constitutional experts, in upholding the law) or 5-4 against (with all five conservatives striking it down). That the final decision was 5-4 in favor, with Roberts providing the deciding vote, was something that I don’t think anybody expected. Democrats were relieved; republicans were outraged. What everyone wanted to know, especially as it emerged that Roberts had originally voted to overturn the law but then changed his vote before the final ruling, is why. What made him decide not to vote with his party?
President Barack Obama and Chief Justice John Roberts are two of the most powerful men in America, and in some ways they have similar backgrounds. Both attended Harvard Law, where each man graduated at the top of his class. However, they saw the law in different ways. Obama saw the role of the courts as enforcing the law, rather than making it; he sought change (particularly favoring the poor and disenfranchised) through legislative means. Roberts, on the other hand, saw the courts as the primary means for achieving his goals. As a lawyer, he specialized in getting cases thrown out for lack of standing, ensuring that claims against the corporations he represented would not be decided on the merits. As a judge, he continued that policy, looking for ways to dismiss cases for lack of standing. (When Roberts was nominated to the Supreme Court, then-senator Obama praised the man but voted against his confirmation, citing Robert’s history of siding with the powerful against the powerless.) Before Roberts, moderate republican Sandra Day O’Conner had been the swing vote on the court; after she and Rehnquist were replaced by Alito and Roberts, the eccentric Anthony Kennedy became the new swing vote and the court took a sharp turn to the right. In rulings such as 2007′s Ledbetter v. Goodyear Tire & Rubber Co., when individuals conflicted with corporations, the court generally ruled on the side of the corporation. A full third of cases in the second year of the Roberts court were decided 5-4, and the court began to ignore the principle of stare decisis, seeking cases to overturn existing law rather than respecting precedent. Nowhere was this more evident than the 2010 Citizens United, which threw out decades of settled law on campaign financing.
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