As the President begins one-on-one interviews with replacements for David Souter, his eventual choice will be only the start of a four- or eight-year struggle for the soul of the Supreme Court in the 21st century.
The lines are clearly drawn. In voting against the confirmation of John Roberts, then-Sen. Barack Obama acknowledged the Chief Justice’s intellect and scholarship but questioned “what is in the judge’s heart. It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”
In his tenure, Roberts has justified Obama’s doubts. As Jeffrey Toobin observes in the New Yorker, “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff…Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
President Obama’s choice now will not alter the philosophical makeup of the Court but may go some distance in shifting its tone.