WASHINGTON — They are two of the smartest men of their generation, both magna cum laude products of Harvard Law School, both cerebral and charming and ambitious. They vaulted to the highest offices in the land after just short stints at the next level down, and each was seen initially as a conciliator only to lead on the strength of his own majority.
Many years after their campus days in Cambridge, Mass., President Obama and Chief Justice John G. Roberts Jr. have emerged as the intellectual gladiators in a great struggle over the role of government in American society. In this moment of churning uncertainty and ideological ferment, it is a struggle that is already defining the selection of the next Supreme Court justice and could easily help shape the course of the nation for years to come.
Much more so than last year, when he made his first nomination to the court, Mr. Obama has Chief Justice Roberts on his mind as he mulls his second, according to Democrats close to the White House. For an activist president, the chief justice has emerged clearly in recent months as a potentially formidable obstacle, and Mr. Obama has signaled that he plans to use the political arena and his appointment power to counter the direction of the Roberts court.
“He’s very concerned about the activism of the court in recent terms,” said Senator Patrick J. Leahy of Vermont, chairman of the Judiciary Committee, ticking off a series of cases that angered liberals, most notably allowing corporations to spend freely in election campaigns. “He wants to make sure he puts somebody on there who is not going to take radical steps like that.”
But the chief justice’s defenders said his rulings have simply upheld a textual analysis of the Constitution and they cast Mr. Obama’s focus on the court as opportunistic and ideological. “The president is willing to attack the Supreme Court in a calculated political manner,” said Shannen W. Coffin, a friend of Chief Justice Roberts’s and a former counsel to Vice President Dick Cheney.
Either way, the search for a replacement for the retiring Justice John Paul Stevens is centered on finding a justice who will not just replicate his liberal votes but also bring intellectual heft and powers of persuasion to the court to win the swing vote of Justice Anthony M. Kennedy, according to people close to the search who insisted on anonymity to discuss it. While activists on the left often say they want a liberal Antonin Scalia, the fiery conservative justice, Mr. Obama is looking for a liberal John Roberts, who can forge a five-vote majority rather than write satisfying but ultimately meaningless dissents.
The urgency is greater this year since the Citizens United decision in January, in which the Roberts court threw out precedents to rule that corporations have First Amendment rights to spend money in election campaigns. Advisers said the ruling crystallized for Mr. Obama just how sweeping the chief justice was willing to be. Indeed, some around the president suspect that Chief Justice Roberts, after moving incrementally in his first few years on the bench, has taken a more assertive approach since Mr. Obama took office.
Conflict between the executive and judicial branches, of course, traces its roots to the early days of the republic. Thomas Jefferson and John Marshall wrestled over states’ rights versus federal power. Abraham Lincoln and Roger B. Taney struggled over the extent of the president’s wartime power. Theodore Roosevelt, angry at the position taken by his own appointee, Oliver Wendell Holmes Jr., snapped that “I could carve out of a banana a judge with more backbone than that.”
And then, of course, there was Franklin D. Roosevelt’s open war with the Supreme Court in the 1930s. After it invalidated much of his New Deal program, Roosevelt mounted a frontal assault by proposing to expand the court with new justices — all appointed by him, of course — only to have the so-called court-packing scheme backfire amid bipartisan opposition. Still, Roosevelt argued that he had lost the battle but won the war, as turnover and evolving positions led to a court more disposed to his measures.
By comparison, of course, the struggle between the current president and chief justice so far has been quite tame. But it is conceivable that legal challenges already filed against Mr. Obama’s health care program could eventually wind up before the Roberts court; indeed, Justice Stephen G. Breyer just last week told a House committee that he expected it to within three or four years. And other signature Obama initiatives, like federal regulation of carbon emissions by power plants, may likewise be challenged all the way to the Roberts court.
“This is a very old argument in which they’re engaging,” said Jeff Shesol, author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court.” “It never really goes away but it acquires a particular urgency in times of economic distress.”
The relationship between Mr. Obama and Mr. Roberts, of course, has been strained from the beginning. The two did not overlap at Harvard — Mr. Roberts, 55, went there straight out of college and graduated in 1979, while Mr. Obama, 48, worked as a community organizer first and graduated in 1991. But they soaked in the debates that flavored the campus at the time.
“Obama’s view of the court is by far the more prevalent view at Harvard Law School, or at least it was when we were there,” said Bradford A. Berenson, who studied with Mr. Obama and served as a White House lawyer under President George W. Bush. Mr. Roberts, he added, held the opposite view, even though it was “very much in the minority” on campus.
When the two met in 2005 after Mr. Bush nominated Judge Roberts (then on the United States Court of Appeals), Mr. Obama (then a United States senator) pronounced himself impressed but voted against confirmation.
“There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land,” Mr. Obama said then. He added that Judge Roberts 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 after studying the record, Mr. Obama said, “he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”
The two met up again on the day Mr. Obama was sworn into office. In an embarrassing gaffe, the chief justice fumbled the order of words in the oath of office, forcing a do-over the next day just to make sure no one could question the legitimacy of the new president.
But it was the Citizens case that exposed the tension between the men and their philosophies. Mr. Obama criticized the ruling repeatedly, including during his State of the Union address, with Chief Justice Roberts and other members of the court sitting in the chamber quietly, and Justice Samuel A. Alito Jr. mouthing, “Not true.”
The chief justice later said that he found the political atmosphere of the event “very troubling” and that he was not sure justices should attend.
Mr. Obama and his Democratic allies are preparing legislation to try to counter the effects of Citizens United, and the president plans to make the issue a theme on the stump heading into campaign season. He cited it specifically the day Justice Stevens retired as an example of what he did not want the next justice to support.
The debate between the men, by necessity, takes place in this way — indirectly, and soon through the confirmation hearing of a new nominee. Christopher Edley Jr., an Obama adviser and dean of the law school at the University of California at Berkeley, said it was a shame the two could not have at it one on one.
“Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.