The Oath (3 page)

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 (David Barron, at the Justice Department, had largely withdrawn from the discussion.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:

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.