January 18, 2009
Two Stars, Meeting Across a Bible
By LINDA GREENHOUSE
WASHINGTON — A few pairings stand out in the history of chief justices swearing in presidents.
Roger B. Taney swore in Abraham Lincoln four years after writing the Supreme Court’s opinion in the Dred Scott case, the pro-slavery ruling that Lincoln denounced and that inflamed the passions that were leading to civil war.
William H. Rehnquist swore in Bill Clinton for a second term a week after the Supreme Court heard arguments on whether Paula Jones could pursue her sexual harassment suit against the president. (“Good luck,” Chief Justice Rehnquist murmured audibly. Is it fanciful to suppose that he had to bite his tongue to keep from adding, “You’ll need it”?)
Chief Justice Rehnquist also swore in George W. Bush — six weeks after the court’s decision in Bush v. Gore effectively handed Mr. Bush the presidency.
When Chief Justice John G. Roberts Jr. administers the oath on Tuesday to Barack Obama, the fleeting personal intersection between these two late-baby-boom superstars may not appear equally fraught. But there will be electricity in the encounter nonetheless.
For a start, Mr. Obama was one of 22 Democratic senators to vote against the confirmation of Judge Roberts to the Supreme Court in 2005. In his remarks at the time, Senator Obama said his decision had not been an easy one. Judge Roberts had a stellar record and ample qualifications, he said. But the nominee’s “overarching political philosophy” troubled him, Mr. Obama continued, adding, “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”
Tough words, but that is not where the real drama on the inaugural platform lies. After all, Chief Justice Roberts had the last laugh in that first encounter, and at 53 can look forward to a tenure that could easily far outlast the Obama presidency.
What is most striking about the two men who will meet at arm’s length, the Lincoln Bible between them, is the difference in the paths that brought them to this moment. In this tableau, they represent two faces of a generation that grew to adulthood after Vietnam, after the fantasies and tragedies of the 1960s, after the civil rights marches were over, when the cities were still smoldering but no longer burning.
Those who set out on their adult journeys in the 1980s, as both John Roberts and Barack Obama did, inherited an ambiguous legacy that required them to assign their own meaning to the unfulfilled promises of the era that faded with their adolescence.
Their early years had little in common: John Roberts was raised in suburban Indiana and sent to a small Catholic boys’ boarding school that was started five years earlier by Chicago and Indiana businessmen much like his own father, a steel company executive; Barack Obama, fatherless, struggled to construct a personal identity at a famous school in Hawaii founded in 1841 to educate the children of white missionaries and where no one looked quite like him.
Still, their intelligence and drive took these two, from such different beginnings, to the same place, Harvard Law School. They did not overlap there, but their shared experience was one of achievement and recognition: both were named to the law review, where John Roberts served as managing editor and Barack Obama was elected president, and both graduated magna cum laude.
Having gone directly from college to law school, John Roberts continued on what could be seen as the conventional path to success in the law: a clerkship for an esteemed federal appeals court judge, Henry J. Friendly; followed by a Supreme Court clerkship for William Rehnquist, then an associate justice; followed by responsible staff positions in the Justice Department and White House counsel’s office as well as partnership in a large law firm. For the government and private clients, he argued 39 Supreme Court cases and was considered by both justices and competitors to be one of the very best.
Doing well in all the right places — a huge achievement but in some ways a career path without risk to a sense of identity — offered great rewards and appears to have left him with few doubts about how the world works, or should work, if his legal writings are the measure. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” was his uncomplicated explanation in a 2007 opinion on why Louisville and Seattle could not constitutionally use student assignments to keep their public schools from resegregating after finally having achieved a measure of integration.
Mr. Obama’s path, more circuitous, led him to spend five years between college and law school working as a community organizer, and to return to community development work, along with part-time law teaching, after he left Harvard and before he finally migrated to electoral politics. It was an unconventional path full of risk, driven in no small part by the search for “a workable meaning for his life,” as “Dreams From My Father,” the memoir he published at 34, describes his journey.
With the economic wreckage of the last year, with major law firms shrinking or disappearing and business institutions that once seemed destined to last forever lying in ruins, a number of the old conventional paths can no longer be considered particularly safe for talented young graduates. An unconventional path, on the other hand, might offer something of a template for those half a generation behind the chief justice and the president-elect: a new Democratic member of Congress from Virginia, Tom Perriello, 34, a Yale Law School graduate, spent a career in community service before going into politics and winning improbably against a longtime Republican incumbent. In a recent interview, he described himself and a growing number of young politicians with similar biographies as “the service generation.”
Inaugurations are about the future, not the past, of course, and after they leave the inaugural platform, John Roberts and Barack Obama will be very much entwined with each other’s future. The Obama administration has some immediate decisions to make about cases pending in or on their way to the Supreme Court, and the court itself has hardly been reticent in recent years about speaking back to both Congress and the president. And Chief Justice Roberts must know that Mr. Obama’s choices to fill any Supreme Court vacancies in the next four years are most unlikely to bolster the fragile conservative majority that the chief justice can most often — although not always — call upon. For Chief Justice Roberts, the current alignment may be as good as it gets for the foreseeable future.
Perhaps the chief justice and the new president can wish each other good luck, until their paths cross again. When the two met Wednesday in the Supreme Court’s west conference room at Chief Justice Roberts’s invitation, they were dwarfed by a huge portrait of Chief Justice William Howard Taft — the only president ever to become a Supreme Court justice.
Even if President-elect Obama were to serve two terms, he would be only 55 when he left the White House. Is it completely implausible to suppose that the Roberts Court lies in this one-time constitutional law teacher’s future in more ways than one?
Linda Greenhouse, former Supreme Court correspondent for The Times, is a senior fellow at Yale Law School and author of “Becoming Justice Blackmun.”
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