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Correction to This Article
A photograph with the essay showing President Obama talking to Justices John Paul Stevens and Anthony Kennedy, was credited incorrectly. Steve Petteway is a staff photographer for the Supreme Court, not the Associated Press.

Supreme Court Justice Barack Obama?


(Sketch by David M. Brinley)

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By Jeffrey Rosen
Sunday, February 21, 2010

He's too detached and cerebral . Too deferential to Congress. Too willing to compromise . And he's too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.

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These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.

Think about it. Though Obama has struggled to find his footing in the White House, his education, temperament and experience make him ideally suited to lead the liberal wing of the court, especially at a time when a narrow conservative majority seems increasingly intent on challenging progressive economic reforms for the first time since the New Deal. Obama is clearly eager to take on the four truly conservative justices -- Samuel Alito, John Roberts, Antonin Scalia and Clarence Thomas -- as his State of the Union smackdown suggests. But as president, he's constrained by that pesky separation of powers. So what better way to engage the fight than to join the bench?

It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won't run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy. And although as president, Obama has seemed haunted by the example of his political hero, Abraham Lincoln, on the Supreme Court he could take up the mantle of the greatest liberal justice of the 20th century, Louis Brandeis, another community organizer with a background in politics. In the end, Obama's legacy on the court might surpass his legacy in the White House.

Obama's academic credentials for the court -- including serving as president of the Harvard Law Review and teaching constitutional law at the University of Chicago -- are obvious. But it's his even temperament and low boiling point that seem tailor-made for the court at this polarized moment. Obama's patient courtship of the vain and wavering swing votes in the Senate (such as Joe Lieberman) during the health-care debate, for example, is ideal preparation for courting the vain and wavering swing vote on the court (Justice Anthony Kennedy). And Obama's detached and judicious disposition would equip him to challenge the conservative hothead, Scalia, without descending to his name-calling.

In terms of judicial philosophy, too, Obama is well suited to take on the pro-corporate activism of the conservative justices -- on display in the recent Citizens United v. Federal Election Commission decision, which gutted campaign finance laws and which, according to recent polls, strong national majorities oppose.

In his 2006 book, "The Audacity of Hope," Obama wrote that throughout American history, constitutional values have generally been defined by ground-up political activism rather than imposed from above by judges. From the late 19th century to the mid-20th century, it was liberals in the political arena, not conservatives, who defended judicial restraint in the face of activist conservative justices who tried to strike down progressive regulations, from the income tax to the minimum wage. But Obama questioned whether, more recently, liberals had become too ready to let courts fight their battles for them. "I wondered," he wrote, "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."

Obama's commitment to judicial restraint is at odds with the activism displayed by the Supreme Court in its Citizens United decision, which called into question not only the McCain-Feingold campaign finance act but also decades of other federal laws and Supreme Court precedents restricting the free speech of corporations. In defending the ruling, Chief Justice Roberts said: "We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right." This overconfidence in knowledge of the right answer is something Obama didn't display while teaching in Chicago. His students have attested to his mastery in neutrally presenting opposing points of view without revealing his own.

When Roberts joined the court, he told me and other journalists that he hoped to emulate his greatest predecessor, Chief Justice John Marshall, encouraging his liberal and conservative colleagues to avoid polarizing constitutional disputes by converging around narrow, unanimous opinions decided on technical grounds. Now that Roberts appears to have abandoned that vision in Citizens United, Obama could take on the role of Supreme Court mediator, conciliator and master compromiser that Roberts promised to play but has not yet delivered.

It's surprising but true that the least successful presidents are often the most judicious, while the most successful justices are the most pragmatic. Obama's willingness to compromise and listen to opposing points of view, in other words, may hamper him in overhauling health care -- public option, anyone? -- but would make him an unusually effective leader on the Supreme Court. As Obama recognized on the campaign trail when he cited former chief justice and three-time California governor Earl Warren as his judicial hero, the most effective judicial leaders have been former politicians.

During the presidential campaign, Obama was critical of Roberts's self-description as an "umpire" and his likening of the court's role to simply calling balls and strikes. "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom," Obama said. "The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old."

But Warren's success as chief justice came not so much from his ability to empathize with the downtrodden as from his ability to empathize with his colleagues. Because of his political skills, Warren achieved the kind of success that has eluded Roberts: He persuaded a fractious court to reach a unanimous decision in Brown v. Board of Education, the landmark case striking down school segregation, by visiting the wavering justices one by one and persuading them to set aside their doubts. A majority of the justices on the court that decided Brown had a background in electoral politics; no justices on the Roberts court do. In a group of former law professors, prosecutors and trial judges, Obama would look like a political wizard.


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