This piece is part of a series on Obama’s legacy that The Huffington Post will be publishing over the next week.
Roberts bungled the wording of the oath of office as he administered it to the former senator, who had once opposed his nomination to lead the Supreme Court. The two men, “out of an abundance of caution,” met up for a do-over the next day. The moment marked the start of a historic period for the nation’s highest court ― one that has shaped Obama’s legacy far beyond the courtroom.
A longtime student of the Constitution and the branch that interprets it, Obama didn’t dramatically reshape the Supreme Court, as much as progressives might have wished it. If anything, under Roberts, the institution remained as deeply conservative as it has been for nearly half a century.
But over the course of two presidential terms, Obama and his lawyers found ways to persuade the court to make the law a little more liberal — including progress for same-sex couples, health care for millions and protection for abortion rights and civil rights laws. All of this in the face of a five-justice majority that repeatedly handed Obama notable defeats — as when it rolled back voting rights protections and expanded the influence of corporations and unions in our electoral system.
“I think that the president was able to achieve a very great deal, especially when one considers that he was litigating in front of a court that was decidedly conservative in its jurisprudential inclinations,” said Donald Verrilli, the former solicitor general who argued successfully against the Defense of Marriage Act and twice helped the Obama administration save its crowning achievement, the Affordable Care Act.
In 2012, Roberts’ vote was key to upholding the health care law as constitutional, even as the totality of his majority opinion was decidedly conservative. (For one thing, it freed states from the law’s mandatory Medicaid expansion, which Roberts wrote was akin to putting a “gun to the head” of the states.) The court’s compromise, difficult though it was, wasn’t nearly enough to appease conservatives, whose wrath against the chief justice only grew when they learned that he’d changed his vote in the case, after initially siding with the four justices who wanted to strike down the law.
Republicans still haven’t forgotten how Roberts, a George W. Bush nominee, broke ranks and voted with the court’s liberal bloc. The public may never know exactly what went down at the Supreme Court in the weeks the justices pondered their decision. But the chief is known for resisting partisanship, and another justice has suggested that the desire to safeguard the court’s legitimacy may have led him to hand Obama his biggest legal victory.
“The institution moves you, and perhaps even more a chief justice,” an unnamed Supreme Court colleague told National Law Journal reporter Marcia Coyle for her 2013 book, The Roberts Court: The Struggle for the Constitution.
For all the highlights, including a second watershed victory for Obamacare in 2015, there were lowlights. Verrilli points to the court’s invalidation of a key section of the Voting Rights Act of 1965 as his biggest loss as solicitor general — one that continues to reverberate today.
“I was concerned with what would follow if it were invalidated, that it would open the doors to enact aggressive voting suppression measures. And that’s what happened,” Verrilli said of the Roberts-written decision, which was joined by the late Justice Antonin Scalia, as well as Justices Anthony Kennedy, Clarence Thomas and Samuel Alito. Three years on, Congress is yet to answer Obama’s call to restore the full law.
Dissenting in this and other cases with civil rights on the line were the two individuals who are probably Obama’s biggest contribution to the Supreme Court: Justices Sonia Sotomayor and Elena Kagan. Even if the president ultimately could not tilt the court’s ideological balance — Republicans successfully stalled his third and final nominee — Sotomayor and Kagan will continue shaping the law in ways that long outlast his presidency.
Don’t call the 111th and 112th justices Obama loyalists — at least not yet. Lee Epstein, a law professor at Washington University in St. Louis who has studied how “loyal” Supreme Court justices are to the presidents who appoint them, said “it’s actually hard to know” where Sotomayor and Kagan fall — in part due to their relatively young tenures under just the one president so far.
Yet Epstein’s preliminary assessment may surprise skeptics of judicial independence and maybe even please Obama, who holds such independence in high esteem. “Sotomayor and Kagan appear to be disloyal, voting in favor of Obama only around 50 percent of the time when the average is close to 66 percent,” she said.
As the first Latina justice, Sotomayor has already carved out a distinctive place both on and off the court. Off the court, she’s often referred to as “the people’s justice”: The Bronx-born Sotomayor draws bigger crowds than anyone else on the Supreme Court, and she likes to mingle with them and demystify the law with a populist warmth that her more elite colleagues wouldn’t dare attempt. On the court, her decades of experience as a prosecutor and a trial judge in New York have come in handy as she has developed into one of the bench’s strongest voices on criminal justice issues. She’s even opened up about her personal life during oral arguments.
On the law, Sotomayor has stood up to the court’s more conservative members — including Roberts himself — when the Constitution’s promise of equality has been under fire.
“The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination,” Sotomayor wrote in a strongly worded dissent to a 2013 ruling that upheld Michigan’s decision to outlaw affirmative action at the ballot box.
She was on the losing side in that case, but the spirit of her words — a riff on Roberts’ views in a 2007 school integration case — was vindicated in 2016, when the Supreme Court upheld the constitutionality of the University of Texas at Austin’s limited consideration of race in its admissions process. Obama heralded the outcome, which his administration had supported before the court.
“We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody,” the president said this past June after the ruling came down.
Kagan, it turns out, recused herself from that case due to her previous role as the president’s first solicitor general. In 2009, that job found her arguing before Sotomayor, in the latter’s debut as a justice, in a little case called Citizens United v. Federal Election Commission, which ushered in a new era for money in politics.
Although she lost the Citizens United case back then, Kagan has asserted herself as an intellectual force on the court, both in her written opinions and during oral arguments. Some even suggest she is moving into the space created by the death of Scalia. The late justice happened to be an early Kagan fan, and the pair developed a bond over duck hunting.
“I have no illusions that your man will nominate someone who shares my orientation. But I hope he sends us someone smart,” Scalia reportedly told Obama senior adviser David Axelrod during a White House correspondents’ dinner. “Let me put a finer point on it. I hope he sends us Elena Kagan.”
Since her confirmation in 2010, Kagan has drawn praise for her wit and clear, lively prose. She’ll draw from popular culture, children’s books and other unlikely sources to get her point across. And court observers like to point out that the former Harvard Law School dean is one of the sharpest questioners at oral argument.
“The thought [Obama] put into each of those selections will pay large dividends,” said Laurence Tribe, a Harvard law professor who taught Kagan in law school and was her early booster for the Supreme Court. Tribe didn’t feel as positively about Sotomayor at the start, but now he said both have “proven to be remarkably able justices, each in her own distinctive way.”
According to Sotomayor, Obama once asked Justice Ruth Bader Ginsburg, “Are you happy with the two sisters I brought you?”
Ginsburg, the court’s second-ever female justice, had been several years without a female colleague at the court before Sotomayor’s arrival. Her response to Obama perfectly captures the size of this step after the court’s two centuries of male dominance: “I’m very, very happy. But I’ll be even happier when you give me five more.”
If his public statements about the Supreme Court’s role mean anything, Obama didn’t pick Sotomayor and Kagan specifically because they were women, let alone because he expected they’d vote for a particular policy.
“I don’t have litmus tests around any of these issues,” Obama once told a group of reporters when asked if a judge’s position on women’s rights was a prerequisite for his Supreme Court nominees. He was more thoughtful. It’s probably not an overstatement to say he was a nerd about how he approached his nominees. And if he had to rely on the nerdy SCOTUSblog — a go-to source for lawyers and academics for all things Supreme Court — to explain his thinking to the American public, so be it.
Indeed, years before he was elected president, Obama was thinking long and hard about the role of judges in a constitutional democracy. He disliked the idea of courts being used as an avenue for partisan politics.
“Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents,” Obama wrote in his 2006 bestselling book, The Audacity of Hope, “it behooves a president ― and benefits our democracy ― to find moderate nominees who can garner some measure of bipartisan support.”
Obama was talking then about Senate norms around the judicial confirmation process, which broke down, perhaps irreparably, during his eight years in office. But his words could equally well apply today to Merrick Garland, the highly respected appellate judge the president wanted to fill the seat left vacant by Scalia’s death.
After passing him over in 2009 and 2010, Obama settled on Garland the third time around. The highly qualified nominee came with two decades of experience on a powerful federal appeals court in Washington ― the same court where Scalia, Roberts, Ginsburg and Thomas once served.
Garland didn’t break the mold like Sotomayor and Kagan, however, and liberals were disappointed that a moderate, older, white man got the nod instead of someone younger or with more progressive bona fides. And yet to Obama, all three nominees shared a critical characteristic: empathy for those on the receiving end of the law.
“He understands the way the law affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times,” Obama said of Garland, echoing the words he used in announcing his other two nominees. Words he repeated when he laid out his vision for Scalia’s replacement on SCOTUSblog.
“A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court,” Obama wrote last February.
Obama’s legacy at the Supreme Court is historic and complicated. And under his successor, there’s no telling what an invigorated conservative majority will do to it. (As of this writing, yet another potentially fatal Obamacare challenge is inching its way to the court.)
Verrilli, the former solicitor general, said he hopes Americans remember how Obama’s administration fought for what it believed in under the law and the Constitution.
“What I think and what I hope is that what the public will see and what history will see is that we fought for progressive causes and progressive ideals and that we did so in a manner that was consistent with our profound respect for the rule of law and the highest and best traditions of advocacy before the Supreme Court,” Verrilli said. “That’s what I hope and that’s what I believe.”