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Authors: Jeffrey Toobin

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On the other hand, Rehnquist stood on the rightward fringe of the Court in 1980, when Roberts joined him. Rehnquist came of age politically as a westerner, an Arizonan, and he had little in common with the gradualism of northeastern Republicans like Friendly. Rehnquist was skeptical of government efforts to promote civil rights and downright hostile to the Court’s effort to broaden individual rights. (In his second year on the Court, Rehnquist was one of only two dissenters in
Roe v. Wade
. Byron White, who was appointed by John F. Kennedy, was the other.) Rehnquist’s ideology never changed, and it left a deep impression on Roberts.

Years later, Roberts gave a speech about Rehnquist that illustrated as much about Roberts as about his mentor. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and
wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.”

At the time Rehnquist joined the Court, its liberals had reigned for two decades. Through the Warren and even the Burger years the justices expanded civil rights protections for minorities, established new barriers between church and state, encouraged civil litigation to challenge business and government practices, and, of course, recognized a constitutional right to abortion for women. This “fluid and wide-ranging” jurisprudence, in Roberts’s contemptuous phrase, had become the new status quo at the Supreme Court. In Roberts’s telling, Rehnquist had been responsible for a “seismic shift” away from these liberal excesses, but that wasn’t precisely accurate. Most of the Warren Court precedents were still on the books; there had been no seismic shift—yet. It was Roberts’s mission to lead the counterrevolution that his mentor had begun.

In the middle of Roberts’s clerkship, Ronald Reagan was elected president. “I was trying to decide what to do next,” Roberts later recalled in a speech at the Reagan Library. “Then he spoke these words and, like so many of the president’s words, I felt he was speaking directly to me. He said, ‘I do not believe in a fate that will befall us no matter what we do; I do believe in a fate that will fall on us if we do nothing.’ And that is what Ronald Reagan was and is and remains today to me: a call to action.” Roberts put off more lucrative options and joined the new administration, first as an assistant to William French Smith, the attorney general, and then in the White House counsel’s office. In his speech, Roberts recalled his first day of work at the White House. “Could I hold for the President? Well, yes, I could. This was an example of the President’s famous charm, with all he had to do, calling a new staffer on his first day to wish him well. I did, I think, what most people do when they get a call from the President at their desk: I stood up. A few minutes went by, but of course that’s understandable, he’s the President, he’s probably finishing up a call with Brezhnev or something. A few more minutes went by … I sat down. I figured that I’d stand up when the President came on the line … A few more minutes went by. Then I heard the muffled laughter outside my door … I put the phone down
and went to the little anteroom. In there, of course, were my new colleagues in the White House Counsel’s office, who had placed the phony call from the President. They had a betting pool how long I would stay on hold … 
Whoever had the 15- to 20-minute slot won that money.”

Roberts was not a policy maker, of course, but his memos from that era reveal a self-assured and loyal member of the Reagan team. He referred in one memo to Smith to an article that mentioned the “so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution.” For someone who was only twenty-seven when he joined the White House staff, Roberts wrote with unusual confidence. When a Democratic congressman proposed a conference on power sharing among the different branches of government and a report on the subject, Roberts dismissed the idea this way: “There already has, of course, been a ‘Conference on Power Sharing.’ It took place in Philadelphia’s Constitution Hall in 1787, and someone should tell [Congressman] Levitas about it and the ‘report’ it issued.” In the eighties, the Supreme Court was deciding as many as 150 cases a year, and the justices were laboring under the weight of the caseload. Warren Burger advocated a proposal to add a kind of super-appeals court above the circuit courts, to relieve the justices of some of their burdens. Roberts was not impressed with the idea, writing to his boss, the White House counsel: “While some of the tales of woe emanating from the Court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

Roberts spent the last few years of the Reagan presidency beginning his career at Hogan & Hartson, but he returned to government at the start of the first Bush administration, when Kenneth Starr recruited him to be his deputy at the solicitor general’s office. Starr had a genteel style as the government’s principal advocate before the Supreme Court—he was nicknamed the Solicitous General—but the office took a series of strongly conservative stands on the merits. Again, Roberts was following administration policy, but he had no problem signing briefs that called for overruling
Roe v. Wade
and limiting traditional civil rights remedies. As was customary, Starr himself argued the most high-profile cases for the government in this period, but Roberts also became a regular presence before the justices. His earnest midwestern manner—matched, of course, by his keen intellect, sharp wit, and great
memory—made him an immediate favorite of the justices. Roberts made such a powerful impression in the S.G.’s office that Bush nominated him for the D.C. Circuit in 1992, when he was only thirty-seven years old. The Democratic blockade of Roberts’s nomination was a tribute of sorts as well. Both sides knew even then that he might well be destined for the Supreme Court. Roberts never received an up-or-down vote in the Senate, so he returned to private practice in 1993.

For much of the Court’s history, cases were often argued by the lawyers who originally represented the clients in the lower courts. Lawyers in the solicitor general’s office were almost the only Supreme Court specialists. But Roberts came of age at a time when Supreme Court advocacy became its own niche in the legal profession. Starting in the 1990s, a Supreme Court bar began to expand, and
Roberts was the leading figure in his generation. In all, Roberts had thirty-nine arguments at the Court, and he won about twenty-five of them. (The number is not precise because some cases had mixed or inconclusive results.)

The professional background of a justice invariably shapes his or her approach to the job. Temperamentally, Rehnquist never left the Nixon Justice Department, where he was the assistant attorney general charged with building a tough-on-crime agenda; O’Connor, the former Arizona state senator, never stopped being a politician; Scalia and Stephen Breyer remained forever the law professors they once were. John Roberts was a litigator whose primary responsibility was to figure out ways to win. For Roberts, the law, ultimately, was all about winning.

The modern Republican Party put judicial issues near the top of its agenda. The priorities included the recognition of Second Amendment gun rights, the end of constitutional protection for the right to choose abortions, and the lowering of barriers between church and state. Democrats paid less attention to these issues, or the courts generally—as Obama himself demonstrated in his campaign.

Obama declared his candidacy for president on February 10, 2007, on the steps of the Old State Capitol, in Springfield, Illinois. The themes of his speech—hope, change, and an end to the war in Iraq—were central to his effort over the next twenty-one months. Through the many long days leading up to his victory in the Iowa caucuses, the four months
of head-to-head combat with Hillary Clinton, and the general election campaign against John McCain, Obama limited his discussion of the Constitution to generalities. (“I believe in the Constitution, I’ve taught the Constitution, and I will obey the Constitution,” he often said in his stump speeches.) Obama and Clinton differed on very little, including legal issues. Against McCain, Obama’s message of change, which resonated even more strongly after the economic collapse, clearly seemed to be working. Obama’s very existence, as the first African American to approach the presidency, said more about equality than any invocation of the Fourteenth Amendment. Still, it is at least worthy of note that Obama, who was, as he often mentioned, a law professor, managed to campaign for nearly two years without saying much of anything about the Supreme Court or the laws that it interpreted.

McCain took a different approach, at least once. Throughout his long political career, the Arizona senator had never shown a particular interest in legal issues; his signature causes were national security and campaign finance. But McCain felt obligated to express his fealty to the contemporary Republican vision about the Constitution. In a speech at Wake Forest University, in Winston-Salem, North Carolina, on May 6, 2008, he said, “The framers of our Constitution had a knack for coming right to the point, and it shows in the 35-word oath that ends with a pledge to preserve, protect, and defend the Constitution itself.”

McCain had already clinched the Republican nomination, so he was in general election mode. He avoided direct mention of incendiary topics like abortion, and he spoke in a code familiar to those who follow constitutional law, leaving them in no doubt where he stood. He addressed what he called “the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.” This, of course, was a view functionally identical to President Bush’s often-expressed contempt for judges who “legislate from the bench.” McCain then cited what he saw as an example of such abuse. “Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri,” he said. “As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’ These meditations were in the tradition
of ‘penumbras,’ ‘emanations,’ and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.”

McCain did not reveal the subject matter of this supposed judicial outrage. The case was
Roper v. Simmons
, in which a seventeen-year-old boy was sentenced to death for murdering a woman after breaking into her home. Kennedy’s 2005 opinion overturned the sentence and held that the Constitution forbade the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” referred to the justices’ observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 were China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen.

Nor were McCain’s references to “penumbras” and “emanations” accidental. Those words came from Justice William O. Douglas’s 1965 opinion for the Court in
Griswold v. Connecticut
, in which the justices recognized for the first time a constitutional right to privacy and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It came from the Court’s 1992 opinion in
Casey
, which reaffirmed the central holding of
Roe v. Wade
and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a kind of dog whistle—a signal (to those who could hear it) that he would appoint justices who would eliminate the right to privacy, permit states to ban abortion, and allow the execution of teenagers.

Rather than challenge McCain or present an alternative vision for the courts, Obama chose to discuss only the subjects that had been working for him. When it came to the Constitution, it was clear that Obama’s agenda was the opposite of change. In an interview with the
Detroit Free Press
, just one month before Election Day, he displayed characteristic caution. In the course of a single short answer, it was possible to watch Obama’s mind in action. He was asked which justices would serve as models for his own Supreme Court appointments. “There were a lot of justices on the Warren Court who were heroes of mine, Warren himself, Brennan, [Thurgood] Marshall,” Obama said, but then he appeared to realize that he might be endorsing an unduly liberal agenda, so he added: “But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”

Obama went on: “Generally, the court is institutionally conservative. And what I mean by that is, it’s not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn’t give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.”

But times were different now, Obama said. “I’m not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology. I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges.” To some, this answer looked like political caution. Embracing Souter and Breyer, instead of Brennan and Marshall, was unlikely to cause offense or cost him votes. It is true that the answer was very, very careful—but it did accurately reflect Obama’s temperament as well as his views about the Supreme Court. After Obama became president, some of his supporters urged him to nominate the kind of judges he “really” wanted—outspoken liberals. But that supposition misread the man. He “really” wanted judges like Souter and Breyer.

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