All the President’s Justices

Barack Obama and John Roberts make history as they repeat it.

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Barack Obama

Barack Obama will take the oath of office this week on the same Bible used to swear in Abraham Lincoln in 1861. Lincoln was sworn in by then-Chief Justice Roger Brooke Taney. This means that when Chief Justice John Roberts administers the oath of office, Obama will lay his hand on the Bible once used for the same purpose by the author of the majority opinion in Dred Scott v. Sanford.

It is in some ways the symbolic closing of a constitutional circle. Obama will be the first black president of the United States. Taney, writing Dred Scott in 1857, concluded that blacks could never even be citizens. Taney ranted that blacks were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” It was one of the most shameful court decisions in history, and Lincoln made his opposition toDred Scott a cornerstone of his political career.

The parallels and contrasts between Lincoln/Taney and Obama/Roberts are worth considering, particularly in light of the fact that Obama voted against Roberts’ confirmation in 2005, saying: “I hope that I am wrong. I hope that this reticence on my part proves unjustified. … I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes.” (Obama will be the first president sworn in by a justice he voted not to confirm.)

Is there anything to be learned from the two historic pairings? Taney’s opinion inDred Scott is seen by constitutional scholars as a departure from the careful, pragmatic, and scholarly approach of his early judicial career. And one of the few Roberts decisions seen as extreme and ideological also involves race. In a 2007 opinion in a case invalidating voluntary school programs in Seattle and Kentucky that sought to maintain diversity by taking account of race, the measured Roberts strayed from his reputation as a careful legal minimalist. Comparing voluntary affirmative-action programs to the kinds of Jim Crow segregation proscribed inBrown v. Board of Education, he wrote, “BeforeBrown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again.”

Roberts’ comparison of voluntary affirmative action to forced racial segregation was so uncharacteristically broad and polemical that Justice Anthony Kennedy rebuked him for his “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.” Roberts’ affirmative-action decision is in no way comparable toDred Scott (beyond the way that it is, in places, overheated and ahistoric). More important, the tension between Taney and Lincoln on the issue of slavery has no parallel when it comes to Roberts and Obama. Indeed, Obama’s own opaque pronouncements about affirmative action—including his statement that he would not want his daughters to benefit from it—suggest he and Roberts share a vision of an America in which affirmative action is unnecessary but disagree about how to get there. The Supreme Court has just agreed to hear another hotly contested case about race, which may reveal just where Roberts and Obama disagree.

There are other important parallels between Lincoln/Taney and Obama/ Roberts. Taney loudly opposed Lincoln’s incursions into civil liberties in the interest of national security. In 1861, Taney pushed back against Lincoln’s suspension of habeas corpus with a strongly worded opinion in a case calledEx Parte Merryman, holding that the writ of habeas corpus could be suspended only by legislation, not by presidential order.

It gets better: Not only did Lincoln ignore Taney’sMerryman decision, but he responded with the most famous rhetorical defense of broad executive power in wartime: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” If George Bush owes a debt of gratitude to Lincoln for that line, the Supreme Court’s liberals should thank Taney forMerryman, cited in a 2004 decision rebuking the Bush administration for its assertions of expansive presidential war powers.

Today, the constitutional shoe is on the other foot. Roberts is a proponent of strong executive power in wartime. Since 9/11, he has joined opinions supporting the idea that Congress authorized the president to set up whatever military tribunal he deemed appropriate. And he dissented in a decision last spring that afforded more robust rights to detainees at Guantanamo—insisting that  detainees there enjoyed “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Obama, for his part, lauded that 2008 Guantanamo decision as “a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo.” Whether Obama’s views on presidential war powers will become closer to Roberts’ when Obama dons the commander-in-chief stripes remains to be seen.

Perhaps the most useful lesson to be learned when Obama is sworn in by Roberts—on the Bible last used ceremonially by two men who loathed each other—lies in the fact that Obama and Roberts actually have far more in common than their rhetoric might suggest. Both are gifted attorneys. Both are charismatic and respected by peers across the ideological spectrum. Both claim to seek unanimity and moderation. And both are devoted to putting America’s racial divisions behind us—even if they disagree on the mechanism. Roberts and Obama certainly differ on presidential powers and judicial philosophy. But that will matter not at all this week when they stand side by side and swear on a Bible once held by two men who could never have imagined this day would come.

A version of this column also appears in this week’s Newsweek.