(President Dwight Eisenhower, a Republican, nominated Warren, the former Republican governor of California, but, working with William Brennan and, later, Thurgood Marshall, the Warren court embraced a liberal activist agenda that included school desegregation, expanded rights of due process and the privacy ruling that established precedent for Roe v. Wade in 1973.)
This shifting of roles among Democrats and Republicans gives Toobin room to plausibly, and effectively, characterize Obama, the Democrat who rose to the White House on a campaign of hope and change, as a man of stasis, at least in a constitutional sense. The president, as the book makes clear, seeks to preserve affirmative action, a woman’s right to choose on the issue of abortion and, most notably, the government’s authority to mandate everyone have health insurance.
Obama and other Democrats want to hold the line on the gains made decades ago; their opponents have a much more ambitious agenda. The litmus test for almost any Republican candidate is to reverse Roe v. Wade, to end or severely limit affirmative action, to remove any strictures on gun ownership and so on. Roberts, inheriting the mantle of 30 years of Republican campaigns to shift policy by reinterpreting the constitution, has proved himself a formidable force since becoming the seventeenth chief justice of the United States in 2005. And, as Toobin and many others always mention, at 57, Roberts seems likely to have one of the longest and most influential tenures in the court’s history.