Roberts Roils Obama as Hughes Stymied Roosevelt in Supreme Times

When Barack Obama takes the oath of office next week, he will look into the eyes of a man who has shaped the 44th president’s legacy like no one else.

Chief Justice John Roberts, in turn, will swear in a president who played a central role in the U.S. Supreme Court’s defining moments over the past four years.

The Obama-Roberts dynamic has grown into the one of the most consequential president-chief justice rivalries in history. Much like Thomas Jefferson, Abraham Lincoln and Franklin Roosevelt, Obama has tangled with a jurist named by a previous president of a different party. At the same time, it was Roberts who cast the vote to save Obama’s signature health-care law.

It’s a relationship “that’s fraught because there are differences in ideology and partisanship,” said Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia’s Miller Center. “But there certainly is a respect between this chief and this president.”

Their fates will become even more intertwined in the next six months as the court decides on social issues that have been the focus of national debate for decades. Obama’s legal team is urging the court to uphold affirmative action in university admissions and reaffirm the 1965 Voting Rights Act, which protects minorities at the polls. In both cases, Roberts’s track record suggests he will oppose the administration.

The two may also find themselves at odds over gay marriage. The president opposes a 1996 law that defines marriage as solely an opposite-sex union, and the administration may take a stance on California’s Proposition 8, which bars gay marriage.

Fumbled Words

Roberts and his colleagues heard arguments on affirmative action in October and could rule any time. The court will consider minority voting next month and the two gay-marriage disputes in March, with rulings scheduled by the end of June.

Until the health-care decision last June, the Obama-Roberts story was primarily one about conflict. In 2005, then-Senator Obama voted against Roberts’s nomination to be chief justice.

Four years later, they collectively fumbled the wording of the oath of office at Obama’s first inauguration, forcing a do-over the following day to eliminate any legal questions.

Tensions escalated in 2010 when, with Roberts and other justices in attendance, Obama used his State of the Union speech to criticize the court’s just-issued decision allowing unlimited corporate and union election spending. Roberts sat impassively as Democratic lawmakers stood and cheered when Obama said the ruling “will open the floodgates for special interests, including foreign corporations, to spend without limit.”

Roberts later called the annual address a “political pep rally” and questioned whether the justices should continue to go. The chief justice nonetheless attended the following year.

‘Judicial Activism’

With health care, Obama made a pre-emptive strike. Saying after the argument that a ruling invalidating the law would be “judicial activism” by “an unelected group of people,” the president suggested he was poised to make the court an issue in his re-election campaign.

Instead, Roberts backed the law, breaking with his four fellow Republican appointees and taking the salience out of the court as a campaign issue.

The two men have a few things in common. Each once walked the halls of Harvard Law School and took a leadership role on the Harvard Law Review. Roberts, now 57, graduated in 1979 while Obama, now 51, got his degree in 1991.

They also share some personality traits, including powerful intellects and reserved demeanors “that some people might say makes them just a tad aloof,” Perry said.

Helping Bush

The similarities stop at politics. Roberts made his mark in Ronald Reagan’s Justice Department, where he argued against racial preferences and derided the reasoning behind Supreme Court decisions that guaranteed the freedom to marry and access to abortion. He went to Florida to help Republican presidential candidate George W. Bush in the legal battle over the disputed 2000 election. Bush appointed Roberts to the court in 2005.

Presidents and chief justices have clashed since the country’s early days. Jefferson loathed John Marshall, the chief justice appointed in the waning days of John Adams’s administration in 1801.

Marshall, who was Jefferson’s cousin, served for the next 34 years, becoming the most influential chief justice in the country’s history. He used his seat to strengthen the national government, giving it powers that, in Jefferson’s mind, threatened the foundation of the republic.

“Marshall and Jefferson really hated each other,” said James F. Simon, dean emeritus of New York Law School who has written three books on presidents and chief justices, most recently one about Roosevelt and Charles Evans Hughes.

Lincoln v. Taney

Many years after Jefferson left the White House, he was still writing letters decrying Marshall’s work, Simon said.

Marshall, for his part, referred to Jefferson as “among the most ambitious and, I suspect, among the most unforgiving of men.”

Lincoln’s rift with Chief Justice Roger Brooke Taney stemmed from a single decision -- the 1857 Dred Scott ruling that said people of African ancestry weren’t U.S. citizens even if they were born in the country. Taney’s opinion helped lead to the Civil War.

It also gave Lincoln ammunition in his campaigns for the U.S. Senate in 1858 and president in 1860. Lincoln accused Taney, an appointee of President Andrew Jackson, of being part of a pro-slavery conspiracy.

The coolness toward Taney continued after Lincoln won the presidency, Simon says. When Taney died in 1864, the president made no public statement and chose not to travel to Frederick, Maryland, for the funeral.

FDR Echoes

The Obama-Roberts relationship bears some similarities to the dynamic in the 1930s between Roosevelt and Hughes.

A Herbert Hoover appointee, Hughes helped thwart parts of Roosevelt’s New Deal program. He also worked behind the scenes to defeat the president’s “court packing” plan, which would have increased the number of justices and improved prospects for favorable Supreme Court decisions.

Still, Hughes cast other votes upholding New Deal laws, ultimately giving Roosevelt pivotal legal victories. He also had the president’s respect, developed years earlier when Roosevelt was New York’s governor, a post earlier held by Hughes.

Before his 1933 inauguration, Roosevelt wrote Hughes a letter expressing his admiration for the chief justice, according to Simon. Although Hughes was less effusive, a photo of him outside the White House after Roosevelt’s 1945 death hints at his fondness for the president.

“He looked absolutely distraught,” Simon said. “I think there was a real feeling between them.”

Polite Formality

No such feelings are evident between Roberts and Obama, who have maintained a polite formality when appearing together at State of the Union addresses and state dinners.

When they meet again next week at the Inauguration, that cordiality in all likelihood will mask deep differences over the legal questions that will define the next four years -- race, marriage and potentially abortion and presidential power later on.

For both men, “it’s professional,” said Simon. “It’s not personal.”

Those disagreements will only be magnified in the event of high court vacancies in the next four years. Obama’s first two appointees, Sonia Sotomayor and Elena Kagan, backed the administration on health care and have suggested that they will support affirmative action.

Should one of the Republican-appointed justices leave -- both Antonin Scalia and Anthony Kennedy are 76 -- Obama could tip the court’s ideological balance and leave Roberts in the minority on the highest-profile issues.

Before it's here, it's on the Bloomberg Terminal.