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.
Page 2 of 2   <      

Supreme Court Justice Barack Obama?


(Sketch by David M. Brinley)

There's another distinctive perspective that he would bring to the bench: economic populism. After a long flirtation with the Tim Geithner, pro-Wall Street, "too big to fail" wing of the Democratic Party, Obama has at last thrown in his lot with the view, espoused first by Brandeis and now by former Federal Reserve chairman Paul Volcker, that huge corporations should be broken up before they threaten another crash. And this view badly needs a stalwart defender on a Supreme Court that seems on the verge of confronting an economically progressive Congress.

On the Roberts court, the liberal and conservative justices share a pro-business orientation, or at least a suspicion of regulation by litigation: Business cases in recent years have made up 40 percent of the court's docket, and, according to the U.S. Chamber of Commerce, 79 percent of them are decided by a 7 to 2 majority or greater. None of the current liberal justices, moreover, had a strong record as an economic populist before joining the court. At a time when liberals need a passionate voice to oppose conservative economic judicial activism, Obama seems well prepared to transform the debate.

Louis Brandeis, who served on the high court from 1916 to 1939, offers a good model for Obama. Known as "the people's lawyer," he was an economic populist, criticizing the "curse of bigness" that led oligarchs such as J.P. Morgan to threaten the entire financial system by taking reckless risks with "other people's money" and then to demand government bailouts after their bad bets. But Brandeis opposed bigness in government as well as in the private sector, and during the New Deal he preferred regulations that prevented companies from getting too large in the first place -- such as the Glass-Steagall Act separating commercial from investment banking -- rather than the creation of huge federal bureaucracies to regulate the economy.

On the high court, Brandeis generally stood for judicial restraint, denouncing conservatives for striking down progressive state economic regulations. But he also believed fiercely in the First Amendment and freedom from unreasonable searches. Both a pragmatist and a civil libertarian, he provides a judicial ideal for Obama, whose record resembles his in many respects.

So, could it actually happen? David Gergen, the CNN commentator who served as an adviser to Presidents Nixon, Ford, Reagan and Clinton, recently reflected on Obama's State of the Union speech in an appearance on Comedy Central's "Colbert Report." Although he praised Obama's intellectual abilities and presidential campaign, he lamented his "detached" and "professorial" attitude once in office. "There was some sense last night when watching Barack Obama and the Supreme Court sitting in front of him, [that] he'd be great on the Supreme Court," Gergen said.

But could Obama get confirmed? As a senator, he voted against the confirmations of Roberts and Alito, and GOP lawmakers might hold that against him in his own confirmation hearing. Yet, although it would be hard for a Brandeis to be confirmed in today's polarized age, Obama might get some deference as a former president, at least from senators who would rather have him on the court than in the White House.

Whether Obama would be bored by the Supreme Court is another question. Justices with presidential ambitions have often chafed at the isolation of the marble palace. For example, William O. Douglas -- who wanted the presidency, according to his friend Tommy Cochran, more than Don Quixote wanted Dulcinea -- never stopped complaining that the court was too removed from the political action. But having seen the frustrations of the White House, perhaps Obama would instead come around to the view of William Howard Taft, who became chief justice after serving as president and decided that leading the court was a far better job than leading the country. The summer vacations are longer, and nothing beats life tenure.

Jeffrey Rosen, a law professor at George Washington University, is the legal affairs editor of the New Republic and the author of "The Supreme Court: The Personalities and Rivalries That Defined America." He will be online to chat with readers on Monday, Feb. 22, at 11 a.m. ET. Submit your questions and comments before or during today's discussion.


<       2

© 2010 The Washington Post Company