The oath The Obama White House and the Supreme Court

Jeffrey Toobin

Book - 2012

From the moment John Roberts, the chief justice of the United States, blundered through the Oath of Office at Barack Obama's inauguration, the relationship between the Supreme Court and the White House has been confrontational. Both men are young, brilliant, charismatic, charming, determined to change the course of the nation-- and completely at odds on almost every major constitutional issue. One is radical; one essentially conservative. The surprise is that Obama is the conservative-- a believer in incremental change, compromise, and pragmatism over ideology. Roberts-- and his allies on the Court-- seek to overturn decades of precedent: in short, to undo the ultimate victory FDR achieved in the New Deal. This ideological war will cre...scendo during the 2011-2012 term, in which several landmark cases are on the Court's docket-- most crucially, a challenge to Obama's controversial health-care legislation. With four new justices joining the Court in just five years, including Obama's appointees Sonia Sotomayor and Elena Kagan, this is a dramatically-- and historically-- different Supreme Court, playing for the highest of stakes.--Publisher's web site

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Subjects
Published
New York : Doubleday c2012.
Language
English
Main Author
Jeffrey Toobin (-)
Physical Description
viii, 325 p., [8] p. of plates : col. ill. ; 25 cm
Bibliography
Includes bibliographical references and index.
ISBN
9780385527200
  • Prologue: The Oaths
  • Part 1.
  • 1. The Politician's Path
  • 2. "On Behalf of the Strong in Opposition to the Weak"
  • 3. The Era of Good Feelings
  • 4. The Legacy of Appendix E
  • 5. The Ballad of Lilly Ledbetter
  • 6. The War Against Precedent
  • Part 2.
  • 7. The Hunter
  • 8. Lawyers, Guns, and Money
  • 9. The Unrequited Bipartisanship of Barack Obama
  • 10. Wise Latina
  • Part 3.
  • 11. Money Talks
  • 12. Samuel Alito's Question
  • 13. The Rookie
  • 14. The Ninety-Page Swan Song of John Paul Stevens
  • 15. "With All Due Deference to Separation of Powers"
  • Part 4.
  • 16. The Retired Justices Dissent
  • 17. Softball Politics
  • 18. The Tea Party and the Justice's Wife
  • 19. The Thomas Court
  • 20. "Democracy Is Not a Game"
  • Part 5.
  • 21. "You Should Do It"
  • 22. Broccoli
  • 23. The "Effective" Argument
  • Epilogue: The Roberts Court
  • Acknowledgments
  • Notes
  • Bibliography
  • Photo Credits
  • Index
Review by Choice Review

Toobin is a staff writer at The New Yorker and is senior legal analyst at CNN. He is also the much-acclaimed author of the best-selling book The Nine (2008), among others. As such, he is eminently qualified to write this book about the relationship between the Obama White House and the US Supreme Court during the president's first term. Beginning with Chief Justice Roberts's flubbing the oath of office at Obama's first inauguration, Toobin meticulously compares and contrasts the personalities and abilities of Obama and Roberts, and then he details their sharp ideological differences. He correctly points to the Obama team's error in believing that congressional conservatives were the main obstacle to a successful administration, rather than the conservative majority on the US Supreme Court. Toobin then discusses how the president fared in the Supreme Court's decision making on issues that mattered most to the Obama administration. The book is very well documented but easy and enjoyable to read. The index is detailed and useful, and the book contains an excellent bibliography for those who wish to do additional research into many of these varied subjects. Summing Up: Highly recommended. All readership levels. R. A. Carp University of Houston

Copyright American Library Association, used with permission.
Review by New York Times Review

THE Oct. 22, 2007, cover of Time magazine displayed a portrait of Chief Justice John Roberts above the line DOES THE SUPREME COURT STILL MATTER? "As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law," David Von Drehle lamented in the accompanying article. "The court's ideology is playing a dwindling role in the lives of Americans." Less than five years later, not even the boldest contrarian would write those words. With Congress and the executive branch all but paralyzed, the Supreme Court today sits firmly in the center of American public life; its decisions crucially affect matters of race, sex, economics, political power and even national security. And in official Washington this fall, the most intriguing personality is neither Barack Obama nor Mitt Romney but John Glover Roberts Jr. Roberts cemented his central position last June when, in a stunning separate opinion, he broke with his four conservative allies to affirm - even though on narrow grounds - the constitutionality of President Obama's health care program. The decision left conservatives fuming, liberals grateful, and everyone confused. In "The Oath" Jeffrey Toobin recounts the last four years of the court as a duel between the chief justice and the president. As Toobin notes, they make nearperfect antagonists: "Both were products of Chicago and its environs, and both were graduates of Harvard Law School. Both even served on the Harvard Law Review, the student-run scholarly magazine." Needless to say, their political philosophies differ. Toobin calls Roberts an "apostle of change," seeking to move the law dramatically to the right, and Obama a "conservative" who wants the courts to leave politics alone. From the moment Obama took office, the two men stumbled into conflict. Roberts delivered a garbled version of the presidential oath at Obama's inauguration, leading to a hurried do-over in the White House Map Room the next day. Precisely a year later, with Roberts in the majority, the court, in Citizens United v. Federal Election Commission, declared all-out war on a key Democratic goal, campaign finance regulation. A few days later, Obama looked down at six of the nine justices, seated in the House chamber for the State of the Union address, and gave them an extraordinary public scolding. The decision, he said, had opened "the floodgates for special interests - including foreign corporations - to spend without limit in our elections." Then Obama's signature initiative, the Patient Protection and Affordable Care Act, came under legal assault. When the justices walked into the courtroom on the last day of the 201112 term, it seemed that fate had delivered Obama into Roberts's hands. But the conflict narrative faltered. Instead of destroying "Obamacare," the chief justice single-handedly saved his rival. The much-reviled "individual mandate" was not valid as a regulation of commerce among the states, he concluded, but it was valid as an exercise of Congress's power "to lay and collect taxes." In addition, Congress can offer states new funding to expand the Medicaid program, but can't cut off all Medicaid funding to states that choose not to accept it. Roberts's opinion did include some strong conservative rhetoric; but for all that, as Justice Ruth Bader Ginsburg pointedly noted from the bench, the act survived "largely unscathed." Toobin is one of the most talented reporters covering American law. Where else but in "The Oath" would we learn that Franklin Pierce was the only American president ever to "affirm" rather than "swear" the required oath of office - or that the only full audio file of Obama's second swearing-in was captured by Wes Allison of The St. Petersburg Times, using his "Panasonic RR-US361 digital recorder"? The book opens with an absorbing explanation of how the oath went wrong. In Toobin's account, the two men did not know where each planned to pause during the recitation, so Roberts was startled when Obama jumped in after the first phrase and both, off balance, then mixed up the words. But the rest of the book is devoted to drama inside the court, which is harder to report. When oral arguments ended on March 28, most observers (including, as he gamely admits, Toobin himself) predicted that the act would be savaged. By the end of June, however, Roberts had apparently left his four conservative allies in the lurch. "The Oath" adds little to what is already known of these events, nor does Toobin tell us who was responsible for the surprising wave of leaks, mostly critical of Roberts, coming from the court before and after the decision (which could be traced, he speculates, to "petulant law clerks," not disappointed justices). "The Oath" does not pretend to be an inside account of the health care case. Toobin's goal instead is to explain the evolution of the Roberts court, and to do so he must weave together an almost overwhelming number of subjects - the rise of the personal "right to bear arms"; the assault on campaign finance regulation; the administration's inept handling of lower-court judicial nominations; the unquiet afterlives of the retired justices Sandra Day O'Connor, David Souter and John Paul Stevens; the confirmation of Sonia Sotomayor and Elena Kagan; Virginia Thomas's bizarre quest for an apology from Anita Hill; and Justice Antonin Scalia's "transition from conservative intellectual to right-wing crank." He must also summarize prodigious amounts of legal doctrine and procedural complexity to place the court's decisions in context. At times, the reader may be daunted by itali. Knowledgeable observers will also find much to debate in Toobin's account of the court's turn to the right. He entitles one chapter "The Thomas Court," but there are two sharply divergent schools of thought about whether Clarence Thomas is actually the "intellectual pathbreaker" behind the court's Second Amendment and campaign finance jurisprudence. And although Toobin sees Citizens United as a triumph of Roberts's partisan agenda, the facts related in "The Oath" can be read differently - to depict a rookie chief justice, nervous about moving doctrine too fast, reluctantly hustled along by an impatient conservative bloc. None of the above should discourage readers from plunging into "The Oath." Not until scholars a generation hence gain access to the justices' papers are we likely to have a more useful, or more readable, picture of this oddly assorted group of judges at this moment in history. But at the end of "The Oath," both the court and its chief justice remain enigmas. That's not a failure of reporting. The decision in June was not the end but the beginning of a story. The meaning of Roberts's opinion in the health care case will be clear only when we know the next few appointees to the court. A stronger conservative majority will widen the libertarian trail he blazed in his health care opinion. A new liberal majority will have little trouble limiting his words to the vanishing point. In either case, I suspect we won't see much more scoffing at the court's importance, at least during the quarter-century or so John Roberts is likely to remain its chief. He has shown himself to be comfortable with power, independent of both enemies and friends, and capable of leading the kind of long-term legal campaign that made historic figures of chief justices like John Marshall and Earl Warren. As Toobin writes at the end of "The Oath," "it's John Roberts's court now." Chief Justice John Roberts Jr. re-administering the oath of office to Barack Obama. From the moment Barack Obama took office, he and John Roberts stumbled into conflict. Garrett Epps is a professor of law at the University of Baltimore and a legal correspondent for TheAtlantic.com. His new book, "Wrong and Dangerous: Ten Right Wing Myths About Our Constitution," has just been published.

Copyright (c) The New York Times Company [June 23, 2019]
Review by Booklist Review

*Starred Review* From the awkward swearing-in of President Obama by Chief Justice Roberts to Obama's caustic reaction to the Citizens United ruling to Roberts' support of Obama's health-care law, the tumultuous relationship between the administration and the Supreme Court has been increasingly evident. Both Harvard-educated lawyers, Obama and Roberts are known for their charm and intelligence, but their very different political perspectives have promised friction from the beginning, particularly as changes in the composition of the court resonate with the changes in national politics. Legal analyst Toobin offers a vivid inside look at the personalities and politics behind the fractious relationship. Roberts' honeymoon lasted 12 months before the fault lines in the court cracked along ideological lines, with conservatives disappointed in his attempts at equanimity and liberals distrustful of his behind-the-scenes maneuverings. Toobin details the politics behind decisions about what cases even get heard as well as the procedural strategies that affect the final rulings. Among the highlights: Ginsburg's scathing dissent on a ruling against a claim of pay disparity, in which she urged congressional action; Souter's caustic dissent in Citizens United that questioned Roberts' integrity; and Scalia's bitter disappointment in Roberts' decision on the health-care law. A revealing look at the ideological battle between the White House and the Supreme Court. HIGH-DEMAND BACKSTORY: The best-selling author of The Nine (2007) revisits the Supreme Court in a timely book that is sure to draw plenty of interest during the election season.--Bush, Vanessa Copyright 2010 Booklist

From Booklist, Copyright (c) American Library Association. Used with permission.
Review by Publisher's Weekly Review

Toobin, a staff writer for The New Yorker, adds to his works of political analysis (including 2008's The Nine: Inside the Secret World of the Supreme Court) with this thorough exploration of the relationship between the Supreme Court and the Obama administration. After discussing the repercussions of Chief Justice John Roberts botching the oath at the 2009 presidential inauguration, Toobin sets the stage by reviewing Roberts' professional background, as well as Obama's views on the Constitution and the "precocious political skills" that enabled him to rise to the top. Toobin profiles new, current, and former justices, providing glimpses into their personal and professional lives while highlighting their individual personalities and talents, demonstrating what each justice brings to the Court, and how these factors affect their interactions. With great attention to detail, he also expounds on the outcomes and implications of many recent cases, including Hamdan v. Rumsfeld, Federal Election Commission v. Wisconsin Right to Life, and the recent ruling on the Affordable Care Act. Though Toobin's exhaustively researched study is marred by a haphazard structure and weak conclusion, it is nevertheless as readable, and informative, as his magazine pieces, and will greatly interest those involved in politics. (Sept. 18) © Copyright PWxyz, LLC. All rights reserved.


Review by Library Journal Review

Best-selling author Toobin (staff writer, The New Yorker; The Nine: Inside the Secret World of the Supreme Court) returns to the Supreme Court in his latest book. With the 2012 election approaching, this well-timed title examines the relationship between the Roberts court and the Obama White House. Toobin paints a portrait of a president and chief justice who are not so very different in some regards-young and passionate, graduates of Harvard Law, dedicated to change-but whose profound philosophical differences have resulted in a tense relationship between those two branches of government. Though the work can occasionally feel a bit disjointed, Toobin's focus on the personalities involved, especially his attention to the dynamics within the Court, enlivens the legal analysis and creates a kind of narrative. VERDICT Toobin has made a career of writing a compelling and readable mix of legal analysis and storytelling. Timely, entertaining, and insightful, this book is no different, and fans of his previous work will find more to enjoy here. Court watchers and politics junkies will delight in this fascinating examination of a crucial moment in Supreme Court history.-Rachel Bridgewater, Portland Community Coll. Lib. (c) Copyright 2012. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

(c) Copyright Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.
Review by Kirkus Book Review

A skillful probing of the often-discordant relationship between the president and the Supreme Court. Having previously examined the intricate machinations of the Supreme Court, CNN and New Yorker legal analyst Toobin (The Nine: Inside the Secret World of the Supreme Court, 2008) again turns his scrupulous eye to the Court's current and future impact on the Obama administration. The author lays the groundwork for his examination by citing Chief Justice John Roberts' awkward 2009 fumbling of the presidential oath of office (later re-administered, to Obama's annoyance) and proceeds to retrace Court history and the persistent political distance separating the presidential seat and the justices. Setting a congenial yet authoritative tone, Toobin notes that Obama and Roberts also share similarities as academic overachievers who attended Harvard Law School and officiated the student-produced Harvard Law Review. Their differences, writes the author, are rooted in the application of the Constitution: Obama believes in traditional values and stability, while Roberts is eager for the Supreme Court to usher in new changes and an evolving understanding of the Constitution's core signification. Toobin deftly tracks Roberts' political history and examines issues that best tested the Court's decisiveness--e.g., abortion, gun control, radical protests and health care. A consummate profiler, Toobin nimbly features key Supreme Court justices Sonia Sotomayor, Ruth Bader Ginsburg, Anthony Kennedy, Samuel Alito, Elena Kagan and "intellectual pathbreaker" Clarence Thomas. Culled primarily from interviews with unnamed justices and their respective law clerks, Toobin offers a well-balanced, literate and interpretative survey of the multifaceted intercourse between the conservative Supreme Court and our liberal president. Shrewd and elucidating.]] Copyright Kirkus Reviews, used with permission.

Copyright (c) Kirkus Reviews, used with permission.

Excerpted from the Hardcover Edition 1. The Politician's Path On February 14, 2008, a man named Steven Kazmierczak opened fire on the campus of Northern Illinois University, in DeKalb, Illinois. He killed five people, and injured twenty-one, before committing suicide. The following day, Barack Obama, the junior senator from the state and a candidate for president, was asked about the shooting at a news conference. In light of this tragedy, what did Obama think about the need for gun control, especially as it related to the Second Amendment? The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." There was and remains unanimous agreement that the text of the amendment is ungrammatical. For more than a century, there was also agreement on what the Second Amendment meant. According to this understanding, the Second Amendment related only to the rights of citizen militias and imposed no barrier to gun control; in other words, the amendment did not give private individuals a right to bear arms. Obama had a different view. "I believe that the Second Amendment means something. I do think it speaks to an individual right," Obama said at his news conference following the massacre. "There's been a long-standing argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument," he went on. "There is an individual right to bear arms, but it is subject to common-sense regulation just like most of our rights are subject to common-sense regulation. And so I think there's a lot of room before you start bumping up against a constitutional barrier." Even a few years earlier, Obama's comments would have seemed bizarre. Since a Supreme Court case called United States v. Miller, in 1939, hundreds of courts had rejected the individual rights view of the Second Amendment. But then the National Rifle Association, the Republican Party, and their allies invested their time, money, and energy in creating a new understanding of the Second Amendment. Indeed, at the time of Obama's news conference about the massacre, the Supreme Court was preparing to decide District of Columbia v. Heller, a product of this long effort to create a new interpretation of the Second Amendment. The work of conservatives to change the accepted meaning of the framers' words was so successful that the recruits to the cause came to include the Chicago liberal who was a leading contender to be the Democratic nominee for president. This, it turns out, was no surprise. Obama was an unusually well-credentialed lawyer. His life as a public figure began in 1990, when he was twenty-eight and won election as president of the Harvard Law Review, the first African American to hold that position. Obama practiced law for a dozen years and taught at the University of Chicago Law School for nearly as long. But by the time he ran for president, Obama was above all a politician, and a cautious one. Obama admired the heroes of the civil rights movement, including the lawyers, but he did not model his career on theirs. Obama did not believe the courts were the principal vehicle for social and political change. Elections, rather than lawsuits, were his battlefield of choice, and by 2008 he knew that the way to win the presidency was, in part, to embrace the individual rights theory of the Second Amendment. Near the end of his memoir, Dreams from My Father, which he published when he was thirty-three, Obama reflected on his education at Harvard Law School. His tone was ambivalent. "The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power--and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition." Then, in a gesture that was common in the book, and in Obama's character, he gave the other side of the story: "But that is not all the law is," he continued. "The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience." Obama's conversation with himself continued: "How far do our obligations reach? How do we transform mere power into justice, mere sentiment into love? The answers I find in law books don't always satisfy me--for every Brown v. Board of Education I find a score of cases where conscience is sacrificed to expedience or greed." As before, though, Obama followed that despairing remark with a hopeful one: "And yet, in the conversation itself, in the joining of voices, I find myself modestly encouraged, believing that so long as the questions are still being asked, what binds us together might somehow, ultimately, prevail." Obama arrived at Harvard after spending three years as a community organizer in Chicago. There he had led a small group in a series of fights, usually with the city government, for better housing, for asbestos abatement, and for jobs on the South Side. Like many such endeavors to organize the poor, Obama's work was difficult and not especially successful; friends and colleagues found Obama more analytical than confrontational. In time, as his frustrations mounted, Obama began thinking about going to law school. Partly, Obama simply wanted to find a way to make a decent living, but the profession also seemed well suited to his particular kind of intelligence and ambitions. He was admitted to Harvard and began his studies in the fall of 1988. Obama had just turned twenty-seven, which turned out to be a fact of some significance. Most of his fellow students were considerably younger, and Obama's maturity, both chronological and temperamental, set him apart. He approached law school, as he did much else, with a certain detachment, as both participant and observer. Law school, and Harvard in particular, would leave its mark on Obama, but his core remained unchanged. There was much truth in the conventional view of a Harvard Law School degree as a passport to Wall Street law firms, but the school also produced eminent role models for an aspiring reformer like Obama. Louis Brandeis, class of 1877, practically invented Supreme Court litigation as a vehicle for social change and, in an article in the Harvard Law Review, first identified a "right to privacy." Felix Frankfurter, class of 1906, provided much of the intellectual energy behind the New Deal, as well as many protégés to Franklin Roosevelt, before following Brandeis on to the Supreme Court. Archibald Cox, class of 1937, joined the faculty and went on to serve as President Kennedy's solicitor general and then Watergate special prosecutor. In subsequent decades, untold numbers of Harvard Law graduates moved to Washington, and around the country, to make their marks on the policies of the day. And there was a time, too, when ideas, as well as people, also made the trip from the Ivy League to Washington. In the Warren Court years--the years of Brown--leading law schools provided much of the intellectual firepower behind the Court's most liberal decisions. In Goldberg v. Kelly, in 1970, the Court held for the first time that the government must give an individual a hearing before cutting off his welfare benefits. To do otherwise, Justice William J. Brennan Jr. said, would violate the Fourteenth Amendment, by depriving the individual of "property" without due process of law. But were welfare benefits "property"? In the key passage in the opinion, Brennan wrote, "It may be realistic today to regard welfare entitlements as more like 'property' than a 'gratuity.' Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property." In support of this novel notion, Brennan cited the work of Charles A. Reich, a professor at Yale Law School, and his articles in the Yale Law Journal. At around the same time, Frank I. Michelman, a professor at Harvard (who was still teaching when Obama was a student), suggested that the Fourteenth Amendment might require a right to economic equality, not just freedom from discrimination. The Supreme Court never went that far, but the idea was, at least for a while, plausible. To write for a law review in those days could be seen as an act of genuine political importance. Harvard's influence, though, went in cycles, and there was a down period as the country and the Supreme Court began to turn to the right in the 1970s--a period that coincided with the tenure of John G. Roberts '79 on campus. Richard Nixon famously referred to Harvard as the "Kremlin on the Charles," so faculty members were generally less welcomed in his administration. Conservative Supreme Court justices needed no direction from liberal academics. On the whole, in these days, the Harvard law faculty still tilted left, but the school returned its focus to its mission as a professional school. As managing editor of the Harvard Law Review, Roberts was known by his colleagues as a political conservative--a modest novelty among his fellow editors--but mostly as a skilled and demanding taskmaster. Liberals may still have held sway in Cambridge, but conservatives were gaining in the rest of the world, and following his graduation, magna cum laude, Roberts began his Republican ascent. He clerked first in New York for Henry J. Friendly, a legendary judge of moderate Republican views on the Second Circuit, and then in 1980 for William Rehnquist, who was still an associate justice. From there, Roberts went to the Justice Department and Reagan White House. Clearly, then, the Kremlin in Cambridge could launch a brilliant conservative career as well as a liberal one. Back at the law school, in the eighties, the politics took a peculiar turn. The faculty, and to a lesser extent the student body, became bitterly divided over a movement known as Critical Legal Studies. CLS was a hybrid of traditional Marxism and contemporary literary theory; its adherents purported to expose the contradictions and class biases inherent in all aspects of law. As far back as the 1920s, "legal realism"--which provided the intellectual basis for much of the New Deal--exposed the political nature of most legal rules. But the Crits, as they were known, practiced a kind of legal realism on steroids, taking an almost nihilistic pleasure in showing the meaninglessness of law. They portrayed law as first and foremost an instrument of oppression of the disenfranchised, and they did so in a manner that was both passionate and obscure, with articles full of citations to the work of "poststructuralists" like Jacques Derrida. Crits and conservatives on the faculty battled over tenure appointments, and the fights sometimes spilled into the classrooms, and even into courtrooms. The Kremlin on the Charles became known as Beirut on the Charles. Roberts experienced a pre-CLS Harvard. Obama arrived just after its heyday. So it was notable that, while still in his first year, Obama sought out Laurence Tribe and went to work for him as a research assistant. The choice was a revealing one on the young student's part. Tribe was a liberal but no Crit--a description that also fit his prize student. Tribe had managed to avoid the Crits-versus-conservatives warfare on the faculty, largely because he was a leading modern exemplar of the Cambridge-to-Washington axis. After writing the best single-volume treatise on the Constitution, Tribe became an accomplished Supreme Court advocate and adviser to Democratic politicians. In 1987, Tribe gave damning testimony before the Senate Judiciary Committee against Reagan's nomination of Robert Bork to the Supreme Court. The stand made Tribe a Republican target and doomed his own chance of winning a nomination to the Court. Still, Tribe was more than an academic; he was a player on the larger stage, the real world. Obama excelled in the classroom--he too would graduate magna cum laude--and he succeeded in the writing competition to join the staff of the Harvard Law Review. Students on law reviews edit articles that are submitted by law professors around the country; about forty out of five hundred students in a class make law review at Harvard. Every February, the staff of the law review holds an election to select the president, or editor in chief, of the magazine for the following year. Obama won with broad support. Conservative students, who were a growing presence at Harvard, turned out to be the key to Obama's victory. The Federalist Society--the national conservative legal organization--had been founded at Yale in 1982, but Harvard soon opened a chapter, and its members asserted themselves as a vocal minority on the staff of the Review. The conservatives recognized that Obama was not one of their own, but they felt he would give them a fair shake, especially about which articles to publish. In winning the confidence of conservatives, Obama's maturity proved a tremendous asset. In that tumultuous time on campus, Obama always seems slightly removed from the battle lines, in his customary posture of both observer and participant. He had an innate grasp of the politician's gift for persuading others that you agree with them without ever making an explicit commitment. Obama's earnest style earned him some mockery from his friends. One of them told David Remnick that a group would go to the movies and tease Obama by imitating his solicitude: "Do you want salt on your popcorn? Do you even want popcorn?" Suddenly, then, with his election as president of the Review, Barack Obama was a celebrity of sorts. The New York Times did a story about him. Turner Broadcasting asked Obama to record a "Black History Minute," and the young man, struggling with the teleprompter, gave a brief tribute to Charles Hamilton Houston, one of Thurgood Marshall's legal mentors. Vanity Fair, which does not generally track the leadership of scholarly publications, devoted a full page to Obama's election. "The New York Times ran a 'First Black' headline, which probably won't be the last time that label is affixed to Barack Obama," Elise O'Shaughnessy wrote, before concluding that Obama "responds warily to the assumption that he himself will run for office. 'If I go into politics it should grow out of work I've done on the local level, not because I'm some media creation.' Though, as media creations go, he'd be a pretty good one." In addition, around this time, Jane Dystel, a literary agent in New York, approached Obama with the idea of his writing a book. Obama agreed, and signed a contract with a division of Simon & Schuster. (At that point, people embraced Obama without knowing much about him. One publisher thought he was raised in the Chicago ghetto; Vanity Fair said he grew up in Singapore, not Indonesia. No one seemed to know that his real home was Honolulu.) It was all a rather extraordinary amount of attention to a mere law student, but during his debut as a public figure, Obama demonstrated precocious political skills. "The fact that I've been elected shows a lot of progress," he told Fox Butterfield, of the Times. "But it's important that stories like mine aren't used to say that everything is O.K. for blacks." Likewise, Obama was always careful to show respect for his forebearers in the civil rights movement, whose sacrifices, he said, made his own success possible. He told the Boston Globe, "To some extent, I'm a symbolic stand-in for a lot of the changes that have been made." But for all that Obama showed respect for Marshall, Houston, and their peers, he also made clear in his own way what he expected of the contemporary legal system: not much. Those pioneers had used the courts to break down the legal barriers that oppressed African Americans. But by the time Obama was at Harvard, that work was mostly done. The task of legal progressives of Obama's vintage was to try to hang on to the gains that had been made in the courts--and that wasn't easy, or of particular interest to him. In 1991, Obama graduated from Harvard Law School into the world of the Rehnquist Court, where the social change on the agenda was (almost always) in the conservative direction. If the right was ascendant, the left was distracted--with the baroque inventions of Critical Legal Studies. For someone like Obama, who had spent years working on the real-world problems of poor people in Chicago, theories untethered to reality had no appeal. Later, when Obama was a senator, he explained the nature of his disillusionment with the use of the courts for social change. It wasn't just that things looked bleak at the Rehnquist Court. "I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy," he wrote in The Audacity of Hope. Yes, he pointed out that he believed in the right to privacy and celebrated the legacy of Brown in civil rights, but it wasn't up to lawyers to preserve those rights. "There was one way to ensure that judges on the bench reflected our values, and that was to win at the polls." Unlike his honored forebearers, Obama would devote his life to elections, not lawsuits. Excerpted from The Oath: The Obama White House and the Supreme Court by Jeffrey Toobin All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.