THE VERDICT

Dahlia Lithwick

All the Presidents’ Justices

Barack Obama and Chief Justice John Roberts have more in common than their rhetoric might suggest.

Published Jan 17, 2009

From the magazine issue dated Jan 26, 2009

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Barack Obama will take the oath of office this week on the same Bible used to swear in Abraham Lincoln in 1861. Lincoln was sworn in by the then Chief Justice Roger Brooke Taney. This means that when Chief Justice John Roberts administers the oath of office, Obama will lay his hand on the same Bible once used in a ceremony by the author of Dred Scott v. Sanford. It is in some ways the symbolic closing of a constitutional circle. Obama will be the first black president of the United States. And Taney, in writing Dred Scott in 1857, concluded that blacks could never even be citizens. Taney ranted that blacks were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." It was one of the most shameful court decisions in history, and Lincoln made his opposition to Dred Scott a cornerstone of his political career.

The parallels and contrasts between Lincoln/Taney and Obama/Roberts are worth considering, particularly in light of the fact that Obama voted against Roberts's confirmation in 2005. (He'll be the first president sworn in by a justice he voted against.) As Obama put in then: "I hope that I am wrong. I hope that this reticence on my part proves unjustified … I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes."

Is there anything to be learned from the two historic pairings? Taney's opinion in Dred Scott is seen by constitutional scholars as a departure from the careful, pragmatic and scholarly approach of his early judicial career. And one of the few Roberts decisions seen as extreme and ideological also involves race. In a 2007 opinion in a case invalidating voluntary school programs in Seattle and Kentucky that maintained diversity by taking account of race, the measured Roberts strayed from his reputation as a careful legal minimalist. Comparing voluntary affirmative-action programs to the kinds of Jim Crow segregation proscribed in Brown v. Board of Education, he wrote,"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again."

Roberts's affirmative-action decision is in no way comparable to Dred Scott, beyond the fact that it is, in places, overheated and ahistoric. More important, the tension between Taney and Lincoln on the issue of slavery has no parallel when it comes to Roberts and Obama. Indeed, Obama's own opaque pronouncements about affirmative action—including his statement that he would not want his daughters to benefit from it—suggest he and Roberts share a vision of an America in which affirmative action is unnecessary, but disagree about how to get there. The Supreme Court has just agreed to hear another hotly contested case involving racial preferences, which may reveal just where Roberts and Obama disagree.

There are other important parallels between Lincoln/Taney and Obama/Roberts. Taney loudly opposed Lincoln's incursions into civil liberties in the interest of national security. In 1861, Taney pushed back against Lincoln's suspension of habeas corpus with a strongly worded opinion in a case called Ex Parte Merryman, holding that the writ of habeas corpus could be suspended only by legislation, not by presidential order.

It gets better: not only did Lincoln ignore Taney's Merryman decision, but he responded with a strong defense of broad executive power in wartime. If George W. Bush owes a debt of gratitude to Lincoln for that stance, the Supreme Court's liberals should thank Taney for Merryman, cited in a 2004 decision rebuking the Bush administration for its assertions of expansive presidential war powers.

Today, Roberts is a proponent of strong executive power in wartime. Since 9/11 he has joined opinions finding that Congress authorized the president to set up whatever military tribunal he deems appropriate. And he dissented in last spring's decision affording more robust rights to detainees at Guantánamo, insisting that they enjoyed "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Obama, for his part, lauded that 2008 decision as "a rejection of the Bush administration's attempt to create a legal black hole at Guantánamo." Whether Obama's views on presidential war powers become closer to Roberts's when he assumes the role of commander in chief remains to be seen.

Perhaps the most useful lesson to be learned when Obama is sworn in by Roberts on the Bible last used ceremonially by two men who loathed each other lies in the fact that Obama and Roberts actually have far more in common than their rhetoric might suggest. Both are gifted attorneys. Both are charismatic and respected by peers across the ideological spectrum. Both claim to seek unanimity and moderation. And both are devoted to putting America's racial divisions behind us, even if they would disagree on the mechanism. Roberts and Obama certainly differ on presidential powers and judicial philosophy. But that will matter not at all this week when they stand side by side and swear on a Bible once held by two men who could never have imagined this day would come.

Lithwick is a NEWSWEEK contributing editor and a senior writer for Slate. A version of this column also appears on Slate.com.

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Posted By: test10022 @ 02/15/2009 12:14:18 AM

I'm assuming here that all of the minorities currently working after having graduated from college, are eligible for affirmative action.

This group greatly outnumbers the number of minorities applying to college. And this group is not poor.

So the number of privileged minorities eligible for affirmative action outnumbers the number of poor kids eligible, simply due to age.

Now, and to this group the number of not-poor kids eligible for affirmative action, noting that MOST minority families would not be considered poor.

So about 50% of those eligible for affirmative action are working professionals--ie not poor people. And about 50% are kids; but at least 70% of those aren't poor.

And there you have it. The vast majority of affirmative action recipients are privileged people who would not be eligible under a class-based system.

Because affirmative action is NOT a welfare program but rather a merit program that excludes whites, it is natural that privileged minorities???not poor minorities???are the beneficiaries. And because the income differences between races isn???t that great anymore, provided minorities are just plain-old privileged people by any standard???even ignoring their race.
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Posted By: bobmossnj @ 01/21/2009 8:07:21 AM

Dahlia Lithwick's characterization of Chief Justice Taney???s opinion in the Dred Scott case as "rant[ing] that blacks were 'beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect,'" is a base and scandalous libel, of the sort that Roberts and his ilk routinely incorporate into their ideologically-motivated opinions (details upon request) ("All the Presidents??? Justices", Jan. 26). Lithwick omits the critically important material preceding and following the text she quotes:

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

60 U.S. 393, page 407.
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Posted By: bobmossnj @ 01/21/2009 7:58:41 AM

Dahlia Lithwick???s characterization of Chief Justice Taney???s opinion in the Dred Scott case as ???rant[ing] that blacks were ???beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect,?????? is a base and scandalous libel, of the sort that Roberts and his ilk routinely incorporate into their ideologically-motivated opinions (details upon request) (???All the Presidents??? Justices???, Jan. 26). Lithwick omits the critically important material preceding and following the text she quotes:

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

60 U.S. 393, page 407.