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Obama v. Roberts

Globe and Mail Blog Post

The most interesting moment of the day was not the speech, the spectacle or the subject.

The inaugural address was stirring in rhetoric, but grim in subject. A friend noted to me the recurrent theme of American exceptionalism that dominated, and how those elements of the speech could have been delivered by a Bush or Reagan.

The spectacle was appropriately American: big to the point of one notch below crazy. Aretha Franklin sang. Cannons were fired. Huge crowds assembled. I half expected a guy on a motorcycle to jump the length of the reflecting pool during the musical interlude.

The subject was a bit underwhelming. Since he secured the nomination last spring, Obama fought to outrun the weight of history on his shoulders. Today, it finally caught up to him and he seemed less than the times demanded. But all presidents are trapped by expectations in the inauguration, and the psychic weight of everything from Lincoln's bible to Kennedy's speech to Roosevelt having nothing to fear but fear itself.

No, the most telling moment of the day was the oath.

Chief Justice of the Supreme Court John Roberts muffed the pledge of fealty to the Constitution, rather astonishing given its 35 word simplicity. The oath is the same pledge taken by every single federal office holder from the president to a bureaucrat in the OGS in De Moines to the raw recruit on Paris Island.

Somehow with just this one job all day, Roberts employed a bizarre cadence that left Obama injecting "I, Barack Hussein Obama" as Roberts continued.

Then Roberts misplaced the word "faithfully" which obliged Obama to incorrectly follow.

It was a fitting beginning to the power struggle that will shape American domestic politics for the foreseeable future.

The some of the greatest presidencies were struggles between a progressive president and a conservative Supreme Court Chief Justice.

Thomas Jeffeson lamented the growing power of the Supreme Court and John Marshall's introduction of the power of judicial review.

Lincoln battled Roger B. Taney, the despicable author of the Dred Scott decision.

Franklin Roosevelt waged war on the court of Charles Evans Hughes, leading him to eventually attempt to stack the court.

It is entirely likely that Obama's greatest obstacle in the next four or eight years will not be the Republicans in Congress, Sarah Palin, the netroots, Osama bin Laden or the economy, but the blandly handsome conservative jurist who administered his oath so poorly today.

The Supreme Court is an almost uniquely powerful body in the history of the United States. Its rulings, from Marbury v. Madison to Bush v. Gore, had a greater impact on that nation than any but a few legislative or executive accomplishments.

The Warren and Burger Courts were the most powerful single forces of liberalism from the 1950s to the 1980's, greater than any president in that era save perhaps Johnson for signing the Voting Rights Act.

But judicial activism is not the provision of liberals. In fact, for much of its history, the U.S. Supreme Court could be seen as an agent of conservative activism.

Cases like Lochner v. New York are clear examples of a conservative court striking down progressive legislation (in this case, maximum hours of work) due to ideological belief in the sanctity of property rights.

We could be entering another such era where a progressive majority in Congress and a progressive President are stymied in their efforts by a deeply ideological and conservative Supreme Court majority.

If so, Justice Roberts' damage to Obama's moment of glory is only the beginning of the impact the jurist will have on the new President's term in office.