The Oath by Jeffrey Toobin Page A

Pan American World Airways—and they took a progressive attitude toward the racial struggles that were convulsing the country. On the Supreme Court, this group was represented by John Marshall Harlan II, a frequent dissenter during the liberal heyday of the Warren Court. Friendly believed in respect for precedent, gradual change, and almost scientific expertise in the law. Friendly was as far from a Scalia-style conservative as he was different from a Brennan-style liberal. The politics of Friendly’s law clerks ran the ideological gamut.
    On the other hand, Rehnquist stood on the rightward fringe of the Court in 1980, when Roberts joined him. Rehnquist came of age politically as a westerner, an Arizonan, and he had little in common with the gradualism of northeastern Republicans like Friendly. Rehnquist was skeptical of government efforts to promote civil rights and downright hostile to the Court’s effort to broaden individual rights. (In his second year on the Court, Rehnquist was one of only two dissenters in
Roe v. Wade
. Byron White, who was appointed by John F. Kennedy, was the other.) Rehnquist’s ideology never changed, and it left a deep impression on Roberts.
    Years later, Roberts gave a speech about Rehnquist that illustrated as much about Roberts as about his mentor. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid andwide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.”
    At the time Rehnquist joined the Court, its liberals had reigned for two decades. Through the Warren and even the Burger years the justices expanded civil rights protections for minorities, established new barriers between church and state, encouraged civil litigation to challenge business and government practices, and, of course, recognized a constitutional right to abortion for women. This “fluid and wide-ranging” jurisprudence, in Roberts’s contemptuous phrase, had become the new status quo at the Supreme Court. In Roberts’s telling, Rehnquist had been responsible for a “seismic shift” away from these liberal excesses, but that wasn’t precisely accurate. Most of the Warren Court precedents were still on the books; there had been no seismic shift—yet. It was Roberts’s mission to lead the counterrevolution that his mentor had begun.
    In the middle of Roberts’s clerkship, Ronald Reagan was elected president. “I was trying to decide what to do next,” Roberts later recalled in a speech at the Reagan Library. “Then he spoke these words and, like so many of the president’s words, I felt he was speaking directly to me. He said, ‘I do not believe in a fate that will befall us no matter what we do; I do believe in a fate that will fall on us if we do nothing.’ And that is what Ronald Reagan was and is and remains today to me: a call to action.” Roberts put off more lucrative options and joined the new administration, first as an assistant to William French Smith, the attorney general, and then in the White House counsel’s office. In his speech, Roberts recalled his first day of work at the White House. “Could I hold for the President? Well, yes, I could. This was an example of the President’s famous charm, with all he had to do, calling a new staffer on his first day to wish him well. I did, I think, what most people do when they get a call from the President at their desk: I stood up. A few minutes went by, but of course that’s understandable, he’s the President, he’s probably finishing up a call with Brezhnev or something. A few