By Jeffrey Rosen
Sunday, February 21, 2010; B01
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.
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.
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.