THE OATHS
So let me ask you this,” Greg Craig said, “does anyone there think he’s not the president?”
It was about 10:30 on the morning of January 21, 2009. Craig was settling into his first day of work as counsel to the president when he received an unexpected phone call.
David Barron was on the line. He, too, had just reported for duty, as the second-in-command in the Office of Legal Counsel, which served as the in-house legal team for the attorney general–designate, Eric Holder.
In the excitement and chaos of the previous day—when Barack Obama was sworn in as the forty-fourth president of the United States—neither Craig nor Barron had paid much attention to the peculiar way Chief Justice John G. Roberts Jr. had administered the oath of office. Early the next morning, Barron had read several newspaper articles about the botched oath and decided to look into the issue. He was concerned enough about what he found to place the call to Craig.
So was Obama really the president?
Barron’s answer was, well, complicated.
The Constitution for the most part speaks in majestic generalities and employs the first person—“I” and “my”—in only a single provision. Article II, Section 1, states: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’ ”
Article I of the Constitution, which defines the powers of Congress, is more than twice as long as Article II, about the presidency. This difference reflected the framers’ belief that the legislative branch of government would be the most powerful. (Article III, which creates the judicial branch, is just 376 words, half again as short as Article II.) Still, the inclusion of a formal oath in the constitutional text reflected the importance of the presidency—and, more to the point, the president. It is the only oath spelled out in the Constitution. In contrast, the vice presidential oath was established by act of Congress, and the current version has been in use only since 1884.
The model for the framers was England’s Coronation Oath, which had been promulgated in 1689, but the differences between the two oaths were as significant as the similarities. The King had to swear before a bishop or archbishop in the Church of England; there was no such requirement in the United States, and George Washington began the tradition of judicial administration of the oath in 1789. New York chancellor Robert Livingston conducted the first inauguration. (At that point, of course, Washington had not had the chance to nominate anyone to the Supreme Court, and it was four years later that a justice, William Cushing, swore in Washington for his second term.) The ecumenical nature of the presidential oath is reflected also in the option of “swear (or affirm).” Some Christian sects, notably the Quakers, did not believe in the use of the word “swearing,” so the Constitution made sure they were not excluded. (Only Franklin Pierce, in 1853, chose to affirm his presidential oath.)
Many of the traditions associated with the inauguration began with Washington, as the first president knew they would. “As the first of everything in our situation will serve to establish a precedent, it is devoutly wished on my part that these precedents may be fixed on true principles,” Washington wrote to James Madison shortly after his inauguration. On the occasion, which took place April 30, 1789, on the steps of Federal Hall, in lower Manhattan, Washington took the oath from a judge, not a cleric; he wore civilian garb, not a military uniform; he placed his hand on a Bible as he recited the words; he gave a brief, inspirational speech immediately after the ceremony; he made sure that any citizen who so desired could attend and view the swearing in. Washington Irving, who was six years old in 1789 but apparently a spectator at the inauguration, recounted in the 1850s that the new president had concluded the oath by saying, “So help me God.” No contemporary account mentioned Washington’s use of that phrase, and it remains unclear whether he did. In any event, all modern presidents have chosen to follow the oath with those words.
Like many other aspects of American government, the administration of the presidential oath evolved in a haphazard manner. In 1797, Oliver Ellsworth became the first chief justice to administer the oath (to John Adams), and thus the tradition began of the nation’s highest legal officer performing the honors. But sometimes he didn’t. (John Tyler and Millard Fillmore were sworn in by lower court judges.) Assassinations led to improvisations. Following the murder of James A. Garfield, in 1881, Chester A. Arthur was sworn in by a judge of the New York Supreme Court; following William McKinley’s death, in 1901, Theodore Roosevelt took the oath from a federal district court judge. Most famously, Sarah T. Hughes, a federal district judge in Texas, administered the oath to Lyndon B. Johnson, on Air Force One, on November 22, 1963. Sentiment sometimes played a part, too. Calvin Coolidge took the oath from a lowly notary public—John C. Coolidge, his father. In 1933, Franklin D. Roosevelt recited the full oath without interruption by Chief Justice Charles Evans Hughes.
Notwithstanding the constitutional text, the precise words of the oath varied over time. When Chief Justice William Howard Taft swore in Herbert Hoover in 1929, he said, “preserve, maintain, and defend” the Constitution. The error was largely ignored at the time, but a thirteen-year-old girl who had been listening on the radio wrote to the chief justice about it. Taft responded, and disclosed still another, earlier mistake. “When I was sworn in as President by Chief Justice Fuller, he made a similar slip,” Taft wrote to the girl, Helen Terwilliger, “but in those days when there was no radio, it was observed only in the Senate chamber where I took the oath.… You are mistaken in your report of what I did say. What I said was ‘preserve, maintain and protect.’ … You may attribute the variation to the defect of an old man’s memory.” In 1945, Harlan Fiske Stone began the oath with “I, Harry Shipp Truman …” Truman, who had a middle initial but no middle name, responded, “I, Harry S Truman …” Twenty years later, Lyndon Johnson forgot to raise his right hand until halfway through the oath, and Chief Justice Earl Warren said “office of the Presidency,” not “President.”
On the morning of January 21, 2009, David Barron had only a brief chance to dip into this peculiar corner of American history. What mattered more to him than these historical curiosities was the law, which was … not entirely clear. A professor on leave from Harvard Law School (one of many in the new administration), Barron recognized quickly that there was no single authoritative source to instruct him about the legal significance of the oath. For starters, it wasn’t even apparent whether the oath mattered at all. Under the Twentieth Amendment, George W. Bush’s term ended at noon on January 20. The electoral college had met and certified Obama as the winner of the election. Thus, Obama may have become president the previous day at noon, even if he never took the oath. But the Constitution also said that “before he enter on the execution of his office, he shall” take the oath. The Constitution, of course, abounds in such ambiguities.
So, like any other good lawyer, Barron looked for precedents. There was no Supreme Court ruling on the subject, but the Office of Legal Counsel issues formal opinions on a variety of matters, and Barron found one from 1985, regarding presidential succession. The Twenty-fifth Amendment to the Constitution, which was ratified in 1967, lays out what happens when a president dies or becomes incapacitated. The OLC opinion noted that, although the Constitution, “which sets forth the Presidential oath, is not entirely clear on the effect of taking the oath, the weight of history and authority suggests that taking the oath is not a necessary step prior to the assumption of the office of President and is not an independent source of Presidential power. It is, nonetheless, an obligation imposed on the President by the Constitution, and should be one of the first acts performed by the new President.” So taking the oath was recommended but not mandatory—probably.
For Barron and his colleagues at OLC, this was not just an abstract legal problem. There was a political dimension as well. Obama had made commitment to the rule of law a centerpiece of his campaign. How would it look if he skirted the rules on the oath? Perhaps more importantly, what would Obama’s political adversaries do? Article II also states that “no Person except a natural born Citizen” is eligible to be president, and a persistent group of critics claimed that Obama was not, in fact, born in Hawaii in 1961. Was it wise to tempt another potential constitutional challenge to his qualification to serve as president?
Barron, too, saw the issue of the oath in the context of larger developments in constitutional law. Starting in the 1960s, liberals on the Supreme Court and elsewhere developed a theory built around the idea of “unenumerated rights.” Even if a right was not specifically mentioned in the Constitution, the Court could draw on the implications of the explicit provisions of the Constitution, prior decisions, and the broader evolution of American society, to expand the liberties of Americans. Most famously (or notoriously) during this period, the Court recognized a constitutional right to privacy, which became the basis for protecting a woman’s right to choose abortion.
In recent years, though, the doctrine of unenumerated rights had come under ferocious attack by conservatives. On the Supreme Court, Antonin Scalia and Clarence Thomas had led the charge for what became known as “textualism,” which said that if the Constitution did not explicitly create a right, it did not exist. A close cousin to textualism was originalism, which asserted that the words of the Constitution must be interpreted as they were understood by the men who wrote and ratified it. Under either textualism or originalism, there was no such thing as a right to privacy and, of course, no constitutional right to abortion.
As Barron knew, textualism was ascendant, and that might have implications for the presidential oath. There might be judges out there who took a literal—a textual—approach to the oath of office. If Obama had not said the precise words mandated by Article II, perhaps—just perhaps—he was not actually the president. And on that ground, any formal action Obama took might be challenged in court. At a minimum, some federal district judge might be tempted to hold a hearing on the issue. Such a legal proceeding would be a distraction, to say the least. That, certainly, was not how Obama wanted to spend his first days in office.
All in all, Barron told Craig, it might be a good idea for Roberts and Obama to redo the oath and get it right.
Greg Craig listened in amazement as Barron spelled out his concerns. It was at that point that Craig realized that he was missing a key fact. At the moment Obama took the oath the previous day, Craig had been standing by the doorway to the Capitol, awaiting the new president, who would sign a ceremonial proclamation before heading inside to the luncheon. Craig had been sufficiently distracted that he barely heard the oath or Obama’s inaugural address.
So almost twenty-four hours later, Craig had to ask himself: What exactly did Obama and Roberts say?
It’s that time again!
In September 2008, well before Election Day, Cami Morrison sent that message to Vanessa Yarnall. Morrison was usually a staffer for the Senate sergeant at arms, but she had been detailed to the newly reconstituted Joint Congressional Inaugural Committee. Yarnall was the assistant to Jeffrey Minear, the counselor to the chief justice and his chief aide for all nonjudicial matters. Morrison and Yarnall had worked together on the presidential inauguration of 2005, and they were now starting to plan the events of January 20, 2009.
Yarnall knew that the late Chief Justice William H. Rehnquist had taken a methodical approach to the oath, and she started reassembling the paperwork he had last used. Rehnquist had sworn in five presidents, and he took an extra step to make sure that he and the president would be on the same page. Shortly before the inauguration, Rehnquist sent the White House counsel a card illustrating how he would divide up the words. In 2001, the card read:
PRESIDENT’S OATH
I, GEORGE WALKER BUSH, DO SOLEMNLY SWEAR//
THAT I WILL FAITHFULLY EXECUTE THE OFFICE OF PRESIDENT OF THE UNITED STATES//
AND WILL TO THE BEST OF MY ABILITY//
PRESERVE, PROTECT AND DEFEND THE CONSTITUTION OF THE UNITED STATES.//
SO HELP ME GOD.
On December 10, 2008, Yarnall sent Morrison a PDF of Rehnquist’s oath card. She removed Bush’s name and left a space for Obama’s name. In her e-mail, Yarnall asked how Roberts should address the new president: With his middle name? Just middle initial? Just first and last? Yarnall and her boss, Minear, assumed that Morrison would forward the card to representatives of the president-elect. They were wrong. Morrison either never noticed the PDF, lost it, ignored it, or forgot about it. In any case, the oath card never reached anyone on Barack Obama’s staff.
On December 15, Senator Dianne Feinstein, the chair of the Congressional Inaugural Committee, formally invited Roberts to administer the oath of office to Obama. The chief justice quickly accepted, and Feinstein’s letter prompted him to sit down with Minear and discuss the ceremony for the first time. They went over Rehnquist’s oath card with care. They added a comma after the word “ability.” They discussed whether “So help you God” was a question or a statement. And since Yarnall’s questions to Morrison had gone unanswered, they wondered what name Obama wanted to use. On December 17, Minear e-mailed Greg Craig to introduce himself and ask about Obama’s name and “So help me God.” Craig wrote back that the president-elect was on vacation, so it might take a few days for an answer.
On December 30, Michael Newdow filed a lawsuit in federal district court in Washington seeking to prevent Roberts from referring to “God” following the oath of office. In 2002, Newdow became famous when he won a ruling in the Ninth Circuit court of appeals that the Pledge of Allegiance in public schools should not include the phrase “under God.” (The Supreme Court later overturned that decision on procedural grounds.) The Justice Department lawyers handling Newdow’s latest case asked Minear to file an affidavit about how the chief justice would be administering the oath. But Minear had still not heard back from Craig. This time, Minear reached Craig by phone. Craig said that Obama wanted to include his middle name in the oath and that Roberts should say “So help you God” as a question. On January 8, 2009, Minear included Craig’s responses in an affidavit in the Newdow lawsuit, which was quickly dismissed by a local federal judge.
Craig’s answers allowed Minear to put Roberts’s presidential oath card into final form. It now read:
I, BARACK HUSSEIN OBAMA, DO SOLEMNLY SWEAR//
THAT I WILL FAITHFULLY EXECUTE THE OFFICE OF PRESIDENT OF THE UNITED STATES,//
AND WILL TO THE BEST OF MY ABILITY,//
PRESERVE, PROTECT AND DEFEND THE CONSTITUTION OF THE UNITED STATES.//
SO HELP YOU GOD?
Vanessa Yarnall e-mailed the revised version to Cami Morrison, who again did not pass it along to the president-elect’s team. Indeed, in the days leading up to the inauguration, neither Obama himself, Craig, nor anyone else associated with them knew that the card existed.
At this point, with the text in final form, John Roberts set about memorizing the oath.
There never was a student like John Roberts at the La Lumiere School in LaPorte, Indiana, a quiet town near Lake Michigan, on the outer edges of the gravitational pull of Chicago. It was a Catholic school, but it was independent of any order or diocese; the founders, all laymen, built the institution around an ideal of academic excellence.
Roberts was not just the valedictorian of the class of 1973. He served as captain of the football team, a varsity wrestler, member of both the student council and the drama club. (He played Peppermint Patty in You’re a Good Man, Charlie Brown; the school was all boys in Roberts’s day.) He continued taking Latin, as a tutorial, after the school dropped the language as a requirement. La Lumiere had a traditional curriculum, but there was one slight novelty. Every year, the students were expected to participate in what was known as a declamation contest, where they would write and memorize their own speeches. In this Roberts excelled, too.
Over time, Roberts became famous for his superb memory. As a lawyer, both in the solicitor general’s office and in private practice, he was known as perhaps the finest Supreme Court advocate of his generation. But it was not just his arguments that dazzled. Roberts’s personality inspired confidence, especially because when he stepped to the podium to argue before the justices, Roberts brought nothing with him—no pad, no notes. He carried the facts and the law of each case in his head.
Roberts relied on his memory—and, as always, hard work—in preparing to administer the oath. He rehearsed many times. He recited the words so often at his home in suburban Maryland that he irritated his wife. “At this point the dog thinks it’s the president,” Jane Roberts told her husband.
On the late afternoon of January 13, 2009, Roberts went to the west front of the Capitol for a walk-through of the inauguration. A handful of congressional staffers showed him his assigned seat and told him when and where he would stand. Toward the end of the meeting, one of the aides offered a card to Roberts with the text of the oath. Did he want to rehearse?
“That’s OK,” Roberts said, declining the text, “I know the oath.”
A week later, on the morning of the inauguration, the justices gathered at the Supreme Court for a small reception, before heading across First Street as a group to the Capitol. The chief justice is a largely invisible figure to most Americans, except for this single appearance every four years. Roberts seemed uncharacteristically subdued as he waited.
A throng of more than a million people filled the National Mall all the way to the Washington Monument. At the stroke of noon, Dianne Feinstein introduced Roberts and asked the audience to stand. (Feinstein called Roberts by his correct title, chief justice of the United States; four years earlier, Trent Lott, in the same role, managed two breaches of protocol in less than a minute. He incorrectly called Rehnquist the chief justice of the Supreme Court and then summoned him to the podium as “Justice Rehnquist.” Rehnquist was a stickler for being called “Chief Justice.”)
“That’s for you,” Obama whispered to his wife, Michelle, as she reached for the “Lincoln Bible,” which had last been used when the sixteenth president placed his hand upon it in 1861.
“Are you prepared to take the oath, Senator?” Roberts said.
Roberts raised his right hand at a crisp right angle. Unlike Rehnquist, Roberts did not carry a copy of the oath in his left hand. The chief justice began, “I, Barack Hussein Obama, do so—”
Obama jumped in and began to recite, “I, Barack …”
Roberts and Obama clearly had different ideas about whether “do solemnly swear” would be included. Roberts’s oath card included “do solemnly swear” in the first line—but Obama had never seen this text.
Recognizing that he had interrupted Roberts, Obama paused to let Roberts continue. Obama then recited correctly, “I, Barack Hussein Obama, do solemnly swear.”
But Roberts—most uncharacteristically—became flustered when he thought that Obama had jumped the gun and interrupted him, and he said next, “That I will execute the office of President to the United States faithfully.” “To” the United States? “Faithfully” after United States? Obama gave a half smile. He could tell it was wrong.
“That I will execute …” Obama said, but then he saw that Roberts was again trying to speak, endeavoring to salvage the situation on the fly.
“The off—” Roberts stumbled again. “Faithfully the office of President of the United States.” This time he had left out “execute.”
Obama was confused. He said, “the office of President of the United States faithfully”—incorrectly putting “faithfully” at the end of the sentence. The two men finally put that troublesome phrase behind them.
“And will to the best of my ability,” Roberts said.
“And will to the best of my ability,” Obama repeated.
“Preserve, protect and defend the Constitution of the United States,” Roberts said quickly, trying to finish without further problems.
Obama repeated.
“So help you God?”
“So help me God.”
“Congratulations, Mr. President,” Roberts said, extending his hand. “All the best wishes.”
Now what? Craig wondered.
Later on January 21—in a few minutes, in fact—Obama was to sign a series of executive orders and presidential memorandums relating to government ethics. He was going to freeze the salaries of White House staffers making more than $100,000 a year and establish new rules to limit lobbying by former government officials. But it was the events planned for January 22 that really worried Craig. Obama was scheduled to sign a lengthy executive order to begin the process of closing the detention facility at Guantánamo Bay. As a private lawyer, staffer to Senator Edward Kennedy, and Clinton-era State Department official, Craig had a long commitment to the cause of international human rights. Obama’s passion for the subject drew Craig to support the young senator over Hillary Clinton in the primaries, even though Craig had known her for decades and served in her husband’s administration. Many times during the campaign, Obama had pledged to close Guantánamo. The last thing Craig wanted to do was undermine Obama’s authority to take this action.
Craig’s deputy, Daniel Meltzer, another professor at Harvard Law School, had not yet arrived in Washington, so Craig called him in Cambridge for his advice. Given the political tensions surrounding everything in Washington, especially Guantánamo, it was possible that someone might demand a hearing on whether Obama was president and thus had the right to close Guantánamo. In the end, the new administration would probably win such a hearing, but legal proceedings had ways of taking on lives of their own. How would they “prove” Obama was president? Would they have to call witnesses? How long would this take? Would there be appeals? What would happen in the meantime?
Meltzer agreed that the safer course was to redo the oath. But that raised other questions. How? When? Where? Perhaps most importantly, by whom? They thought about asking a federal district judge to do it quickly and privately. Craig had been a law partner of Ellen Segal Huvelle, now a judge in Washington, and wondered if he should ask her to come to the White House. On further reflection, though, he and Meltzer decided that the better course was to be open about the whole process—and to ask the chief justice to do it again. (David Barron, at the Justice Department, had largely withdrawn from the discussion. Later he would reflect, with dark humor, that he had probably managed to annoy both the president and the chief justice on his very first day of work.)
Craig went downstairs in the West Wing to talk to David Axelrod, the president’s top political adviser. Axelrod deferred to Craig’s legal judgment about the necessity of the redo and agreed that the process should be open and include the chief justice, if possible. Still, they both wanted to downplay the event’s significance. So Axelrod came up with a phrase to explain what they were doing: “out of an abundance of caution.” Around lunchtime, Craig and Axelrod went up to the residence, where Obama was receiving visitors, to brief him and get his approval for the plan.
At 1:18 p.m., Obama entered Room 450, an auditorium in the Eisenhower Executive Office Building, which is part of the White House complex. When Obama and Vice President Joseph Biden walked into the room, the crowd of about thirty new appointees rose to their feet, which is customary when the president enters a room. At this point, though, Obama was startled by the gesture. “Please be seated,” he said with a slightly embarrassed smile. “I’m still getting used to that whole thing. Please be seated.”
Obama was supposed to sign the orders on government ethics, but he went to the lectern and introduced Biden: “Joe, do you want to administer the oath?”
Biden was surprised and puzzled by the request. “Am I doing this again?” he asked. He was then informed that he would be giving the oath to the senior staff. “For the senior staff, all right,” Biden said. Never one to leave a silence unfilled, he then added, “My memory is not as good as Justice Roberts, Chief Justice Roberts.”
There was no mistaking Biden’s reference. The assembled staffers muttered a collective “woooo,” followed by outright laughter. Biden smiled, and asked for the card with the oath.
Barack Obama had by this point constructed a public image of imperturbability, earning the well-deserved nickname of No Drama Obama. But Biden had irritated Obama. The president scowled, shook his head in clear disapproval, and then reached out toward Biden, almost pushing him away from the microphone. Obama knew—as Biden did not know—that the oath had been botched so badly that his staff was just then asking the chief justice to conduct a do-over. Obama wouldn’t want anyone making fun of Roberts at this moment. Moreover, Obama had better manners than Biden. It was not the kind of joke the new president would ever make. (Biden later called Roberts to apologize.)
Greg Craig had made the awkward phone call to Minear, the aide to Chief Justice Roberts, who didn’t hide his surprise. You want to do what? You want to do it when? Craig made clear that they would like the chief justice to come by the White House as soon as possible. Minear said he would have to check but quickly called back to say the chief justice would be pleased to stop by the White House on his way home from work.
Soon, in other words. Craig then called Robert Gibbs, the press secretary, to tell him that Roberts would be arriving shortly to readminister the oath.
What the fuck did you just say? Gibbs replied.
Craig repeated his news.
Gibbs was flabbergasted. When reporters had asked about the stumbles in the oath, he had directed his staff to check it out with the counsel’s office. That particular game of telephone resulted in word getting back to Gibbs that the White House regarded the gaffes as no big deal. For the last twenty-four hours, Gibbs had been repeating that guidance to anyone who asked.
Now—Craig told him—they were about to redo the presidential oath for apparently the first time in American history. The press secretary was furious with Craig. Did you think that might be newsworthy? When did you think you might get around to telling me this?
Gibbs raced to the office of Rahm Emanuel, the chief of staff, and told him they needed to decide how to tell the press what was happening, and where. And they had to do it immediately.
Gibbs, Craig, Axelrod, and Emanuel made the decisions. The idea was not to keep the redo a secret, but not to call too much attention to it either. They agreed to conduct the ceremony in the Map Room, which is officially part of the White House residence, rather than in a working area, like the Oval Office. Presidents had long used the Map Room as a kind of hybrid, for occasions that they didn’t want to recognize as presidential business but that weren’t personal either. A decade earlier, for that reason, Bill Clinton gave his grand jury testimony to the Kenneth Starr investigation in the Map Room. Later, Obama would meet the Dalai Lama there, because an Oval Office meeting would have offended the Chinese government.
Precisely at 7:00, Craig met the chief justice’s limousine. Roberts and Minear left the car, with Minear holding Roberts’s robe. Craig offered profuse thanks, and Roberts in turn was equally gracious. “I always believe in belt and suspenders,” Roberts said. “This is absolutely the right thing to do.”
Gibbs had decided against television coverage of the event and instead invited only a print pool as witnesses. The pool consisted of representatives of the Associated Press, Reuters, and Bloomberg and a rotating newspaper reporter, who happened on this day to be Wes Allison of the St. Petersburg Times. Gibbs lent the event an air of mystery. He told the quartet of reporters to follow him from his office in the West Wing along the colonnade to the White House residence, but he wouldn’t say why until they arrived in the Map Room.
There Gibbs paused and pulled out the statement that Craig and Axelrod had prepared. It said that the White House believed that the oath had been administered “effectively” the previous day, but “out of an abundance of caution,” Roberts would be doing it again. Stunned, the reporters said nothing until Obama and Craig walked over to greet them. Smiling broadly, the president said, “Hey guys, we decided, you know, that it was so much fun that we’d do it again.” Obama started quizzing the members of the pool about the inaugural balls. “How late did you stay up?” he asked. “Tell the truth.” One reporter asked Obama if he had a good time. “I had a wonderful time with my wife,” he said. “But she had to do it in high heels. That’s something I could not imagine.”
Wes Allison had had the presence of mind to turn on his Panasonic RR-US361 digital recorder, and his audio file remains the only full record of the proceedings.
Roberts put on his robe, and Gibbs and Pete Souza, the White House photographer (the only photographer present), steered Obama and the chief justice to a position in front of the fireplace. The Obamas had not had a chance to put their stamp on the residence, so the portrait above the mantel was more a placeholder than an object of any special significance to the first family. The subject was Benjamin Latrobe, the architect of the Capitol.
Still trying to keep the tone light, Obama said, “I don’t have my Bible, but that’s all right.”
Obama then hesitated. Craig had brought along a copy of the oath, and he felt sure that this time Roberts would read it. Obama waited for the chief justice to pull out his own copy or take the one from Craig.
Roberts had thought about bringing the text with him. It would have been the cautious thing to do. But the chief justice was a proud man. He never publicly blamed anyone but himself for botching the initial ceremony. But he didn’t want to admit defeat and read the oath.
Obama sensed this and said, “We’re going to do it very slowly.” Several onlookers glanced at one another with raised eyebrows. The new president was a polite man, but his remark to the chief justice had an … edge.
The second administration of the oath was completed without incident.
At that moment, standing before the fireplace, Barack Obama and John Roberts had a great deal in common. At the ages of forty-seven and fifty-three, respectively, they were probably the most accomplished members of their shared generation, and both were at the height of their powers. Even their adversaries would concede that each man possessed a powerful intellect and considerable charm. Some of the same influences and experiences shaped both the forty-fourth president and the seventeenth chief justice. Both were products of Chicago and its environs, and both were graduates of Harvard Law School. Both even served on the Harvard Law Review, the student-run scholarly magazine. (Obama was president his year; Roberts was managing editor, effectively second-in-command, during his.) Both were married, neither had had a previous marriage, and each man had two young children.
But the differences between Obama and Roberts were ultimately far more significant than the similarities. Roberts came from a stable, traditional, and prosperous home, where his father was an executive at a steel mill and his mother a homemaker. Obama’s father, a Kenyan, abandoned his family when his son was a toddler and then saw the boy only one more time, when Obama was ten; Obama’s mother, a lifelong free spirit and intellectual searcher who grew up in Kansas, gave birth to Obama in Hawaii, spent a few years with him in Indonesia, and then left him with her parents in a Honolulu high-rise. After going to college first in Los Angeles and then graduating from Columbia, in New York, Obama made his way to Chicago to become a community organizer.
Chicago left entirely different marks on the two men. Obama lived in the inner city, among the poor, desperate, and Democratic; Roberts grew up among Republican burghers who lived in large and sturdy homes well insulated from the winds off the lake. Even their Harvard experiences were different; the institution changed between the time Roberts, law school class of 1979, and Obama, class of 1991, studied there. The large gap between their times in law school was due to Obama’s years as an inner-city activist; it is inconceivable to imagine Roberts spending any time in that field. His years in the private sector were spent representing corporations at the powerful law firm then known as Hogan & Hartson.
But the greatest, and certainly the most important, difference between the two concerned the work of the Supreme Court. Both men gave considerable thought to the Constitution, and they reached different conclusions about its current trajectory:
• One believed in change; the other in stability.
• One looked forward; the other harkened back.
• One was, in a real sense, a visionary; the other was, when it came to the law, a conservative.
And in this crucial realm, the roles of the two men were the opposite of what was widely believed. It was John Roberts who was determined to use his position as chief justice as an apostle of change. He was the one who wanted to usher in a new understanding of the Constitution, with dramatic implications for both the law and the larger society. And it was Barack Obama who was determined to hold on to an older version of the meaning of the Constitution. Obama was the fellow who was, in the words of a famous conservative, standing athwart history yelling “Stop!”
In the previous dozen years, the United States endured a terrorist attack, economic calamity, and several wars. But the Supreme Court’s rulings may leave as important a legacy. The future of politics, business, public safety, individual freedoms—all hang in the balance before the justices. How will our elections be conducted? What is the place of race in American society? How much power may the federal government exercise? On those questions and many more, the Supreme Court will have greater sway than either the executive or the legislative branches of government.
Over those years, the Court has been transformed by the same development that reconfigured American politics—the evolution of the Republican Party. For two generations, since the liberal heyday of Chief Justice Earl Warren, the Court was largely controlled by the moderate wing of the Republican Party. During this period, first Lewis Powell and then Sandra Day O’Connor self-consciously tethered the Court close to the center of the political spectrum. Those justices, and indeed that part of the Republican Party, are now gone. A court now dominated by Roberts, Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. reflects the contemporary Republican Party.
Even in this heady company, Roberts towers above his colleagues, conservative and liberal alike, in savvy, intelligence, and understanding of the place of the Supreme Court in American life. This was especially evident in the stunning conclusion to the Court’s 2011–12 term, when the chief justice joined with the Court’s four liberals to uphold the Affordable Care Act, the signal legislative achievement of Barack Obama’s presidency. Roberts’s vote, at least in the short term, was a shattering disappointment to conservatives, including his four dissenting colleagues. In spite of that vote, Roberts still believes in change—but not always, and not all at once. Roberts understands that sometimes power must be tended as well as expended. The decision in National Federation of Independent Business v. Sebelius may reward Roberts, and the conservative cause, over time. As a man in robust middle age, with life tenure, Roberts has the luxury of playing a long game, and he is.
The conservative ascendency at the Court owes much to Republican victories in presidential elections and to well-funded sponsors but also to the power of ideas. The great conservative project of the previous generation has been originalism—interpreting the Constitution supposedly as its framers understood it. The conservative bugaboo in this process has been the “living Constitution”—the idea, supposedly liberal in origin, that the meaning of the Constitution changes with the times. But in pressing originalism with such intensity and such success, conservatives have proven, perhaps unintentionally, that the Constitution does indeed live—that it responds to and changes with the politics of the day.
Obama and Roberts embody the larger conflict. They are both honorable and intelligent, but they see the Constitution in different ways. The only certainty in the battle between them is the high stakes riding on the outcome.