It is 2010 and we have an important contest evolving between Barack Obama, the President of the United States, and John Roberts, the Chief Justice of the Supreme Court.Two brilliant men, both magna cum laude graduates of Harvard Law school, hold the most powerful positions in the country. Major issues between them are the balance of power between the executive and judicial branches of our federal government, and whether the “originalist” interpretation of The Constitution has validity in today’s world.

This is not the first time in our history that there have been sharp conflicts between the executive and judicial branches of government. In the earliest days of the republic, Thomas Jefferson argued with John Marshall over states’ rights versus federal power. Andrew Jackson defied the Supreme Court ruling for Cherokee nation sovereignty and ordered their removal from their lands. Abraham Lincoln and Roger Taney were at odds over the wartime powers of the presidency during the Civil War. When Theodore Roosevelt found that his own appointee, Oliver Wendell Holmes Jr. , did not agree with him on executive powers, he declared, “I could carve out of a banana a judge with more backbone than that!” Franklin D. Roosevelt was so incensed when the Supreme Court struck down much of his New Deal program, that he tried to“pack the court.” However, his plan to increase the number with appointees of his choice backfired with the public and bipartisan opposition in the Congress. The number of justices remained intact at nine.

John Roberts, during his confirmation hearing before the Senate, described a Supreme Court Justice as an umpire calling balls and strikes with a “fair reading” of The Constitution. David Souter, recently retired from the High Court, took the umpire metaphor apart in his commencement address at Harvard in June. He struck at the heart of the originalist interpretation of The Constitution that bases decisions on the original words and intent of the men who wrote the document. Souter said, “The reason that constitutional judging is not a mere combination of fair reading and simple fact extends way beyond the recognition that constitutions have a lot of general language in order to be useful over long stretches of time.” Souter said that justices had to understand the “meaning” of facts in a case. “The meaning of facts arise elsewhere and judicial perception turns on the experience of the judges and their ability to think from a point of view different from their own.”

Justice Roberts also emphasized at his hearing the importance of adhering to long established precedents. Since he became Chief Justice, that has not been evident in some of his most important rulings. The Conservative bloc in a 5 to 4 decision last June overturned part of the historic Brown v. Board of Education decision that declared segregated schools, “inherently unequal.” In January 2010, the Roberts court reversed long-standing precedent in the Citizens United decision that corporations have First Amendment rights to spend money in election campaigns. Senator Patrick Leahy, Democrat of Vermont and chairman of the Judiciary Committee, spoke of President Obama’s reaction to the direction of the Roberts court – and his two nominees, Sonia Sotomayor and Elena Kagan, “He’s very concerned about the activism of the court in recent terms. He wants to make sure he puts somebody on there who is not going to take radical steps like that.”

There is no question that Barack Obama is an activist president. When he inherited two wars and the worst recession since the 1930s, he embarked on a full-scale series of programs to restore economic stability and to pass laws that had been vetoed by former president Bush. His major accomplishment of passing Health Care legislation has already been challenged legally by several states and will wend its way upward to the Roberts Supreme Court in the years ahead.

When Roberts was nominated in 2005, Obama was in the U.S. Senate. He said at the time, “There is absolutely no doubt in my mind that Judge Roberts is qualified to sit on the highest court in the land.” He added that Roberts had told him “he doesn’t like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.” But Obama voted against confirmation because he said he had studied Roberts’ record and found “he has far more often used his formidable skills on behalf of the strong in opposition to the weak.” To Obama, the Citizens United decision appeared to exemplify differences in their philosophies. In his State of the Union address, with the Chief Justice and other justices present, he repeatedly criticized the ruling.

Liberals have been labeled as “activists” by Conservatives ever since the Warren court of the ‘50s struck down school segregation and Congress in the ‘60s passed landmark legislation, Civil Rights and Voting Rights Acts , while the High Court banned prayer and Bible reading in the schools and upheld criminal defendants’ rights. After the Bush years and now into the Roberts Court, Conservatives are being called the “activists” as they whittle away at the Warren decisions and overturn precedents that have been in place for over a half a century. What we apparently have is an activist president and an activist chief justice.

Jeff Shesol, author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court,” said, “This is an old argument in which they’re engaging. It never really goes away, but it acquires a particular urgency in times of economic distress.”

Joyce S. Anderson is the author of “Courage in High Heels,” “Flaw in the Tapestry,” “If Winter Comes” and “The Mermaids Singing.” She can be reached at JSAWrite@aol.com.