The Oath (4 page)

The conservative ascendency at the Court owes much to Republican victories in presidential elections and to well-funded sponsors but also to the power of ideas. The great conservative project of the previous generation has been originalism—interpreting the Constitution supposedly as its framers understood it. The conservative bugaboo in this process has been the “living Constitution”—the idea, supposedly liberal in origin, that the meaning of the Constitution changes with the times. But in pressing originalism with such intensity and such success, conservatives have proven, perhaps unintentionally, that the Constitution does indeed live—that it responds to and changes with the politics of the day.

Obama and Roberts embody the larger conflict. They are both honorable and intelligent, but they see the Constitution in different ways. The only certainty in the battle between them is the high stakes riding on the outcome.

THE POLITICIAN’S PATH

O
n 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.