January 10, 2007

The amazing mileage Jeffrey Rosen gets from an interview with John Roberts.

Lawprof Jeffrey Rosen has an interview with Chief Justice John Roberts. It starts off as a very interesting examination of Roberts's approach to his role on the Court:
Some of the least successful chief justices, Roberts suggested, had faltered because they misunderstood the job, approaching it as law professors rather than as leaders of a collegial Court. Harlan Fiske Stone, a former dean of Columbia Law School, was a case in point. Stone “was a failure as chief, because of his misperception of what a chief justice is supposed to be,” Roberts said, gesturing to the justices’ private conference room through an open door of his office. “It’s his desk out there that is separate from the conference table, and he … sat at his desk, and the others were at the table, he almost called on them and critiqued their performances. They hated that.” Roberts laughed. “As a result, he was a failure as a chief justice.”...

... Roberts declared, he would make it his priority, as [Chief Justice John] Marshall did, to discourage his colleagues from issuing separate opinions. “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”

In Roberts’s view, Marshall’s success in unifying the Court was a reflection of his temperament. “He gave everyone the benefit of the doubt; he approached everyone as a friend. The assumption was … ‘This is someone I’m going to like unless proven otherwise,’” Roberts said. “He was convivial, he took great pride in sharing his Madeira with his colleagues … [He was not] the artificial glad-hander type; it was just in his nature to get along with people. I think that had to play an important role in his ability to bring the Court together, to change the whole way judicial decisions were arrived at, to really create the notion that we are a Court—not simply an assemblage of individual justices … It was the force of his personality. That lack of pretense, that openness and general trustworthiness, were very important personality traits in Marshall’s success,” Roberts observed....

Roberts praised justices who were willing to put the good of the Court above their own ideological agendas. “A justice is not like a law professor, who might say, ‘This is my theory … and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area,’” he explained. Instead of nine justices moving in nine separate directions, Roberts said, “it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”
Keep reading, and you'll see that Rosen is honing these insights into a sword to use against two (or three) Justices. I'm skipping a lot to get to the juiciest part (and adding some boldface):
Roberts recognizes that much of his success or failure will be determined by his colleagues, and their readiness to embrace his vision of consensus and political neutrality....

The focus on justices as personalities—demanded by the public and cultivated by some justices—directly challenges Roberts’s view that justice itself should be impersonal. “What you’re trying to establish—wearing black robes and, in earlier times, wigs—[is] that it’s not the person; it’s the law.” To persuade individual justices to resist the pressures to promote themselves rather than the interests of the Court as a whole, he will have to appeal, in different ways, to their respective self-interests, and to a broader understanding of their judicial role. Roberts understandably declined to criticize his colleagues by name. But when he objected to justices who act more like legal academics than members of a collegial Court, it was hard not to think of Clarence Thomas and Antonin Scalia, who seem more interested in demonstrating their jurisprudential consistency by writing opinions that read like law-review articles than in finding common ground with their colleagues.
Now, Rosen is on his own:
Roberts could, in theory, appeal to justices like Scalia and Thomas—and their counterparts on the liberal wing of the Court—in the following terms: In important cases, on this evenly divided Court, neither the four liberals nor the four conservatives can confidently expect to prevail. Surely it would be in the best interest of each side if it could win half the cases by a unanimous vote, rather than trying to win slightly more often by a 5–4 vote, since a unanimous victory would be harder, in the future, to overturn. Of course, the justice who would be most resistant to this kind of bargain would be the swing justice—at the moment, Anthony Kennedy, who naturally enjoys his unique opportunity to determine the outcome of the most controversial cases on his own. When the swing justice is as self-dramatizing as Kennedy, even the chief’s most skillful appeals to the Court’s common interests may fall on deaf ears. But Kennedy, like most of the justices, also cares deeply about his own reputation as well as the Court’s. So perhaps the best way for Roberts to appeal to Kennedy and his colleagues is by invoking the lessons of history.
I love the way Rosen uses his freshly honed sword against fellow lawprofs:
“I think judicial temperament is a willingness to step back from your own committed views of the correct jurisprudential approach and evaluate those views in terms of your role as a judge,” [Roberts] said. “It’s the difference between being a judge and being a law professor.”...

The history of the Court confirms this insight. On the Court, the brilliant academics are less successful, over time, than the collegial pragmatists. The self-centered loners are less effective than the convivial team players. The resentful braggarts wear less well than the secure justices who know who they are. The narcissists wield judicial power less sure-handedly than the judges who show personal as well as judicial humility. The loose cannons shoot themselves in the foot, while those who know when to hold their tongues appear more judicious.
It's obvious that he means Scalia, and it's just so hilarious that he's insulting the hell out of law professors in the process. But you know, some of us law professors have congenial colleagues. And some of us value pragmatism and balk at over-pure theory.
The ideological purists are marginalized on the Court, while those who understand when not to take each principle to its logical extreme are vindicated by history. Justices who view cases in purely philosophical terms are less sure-footed than those who are aware of a case’s practical effects. And those with the common touch win broader support than those who live entirely in abstractions.
This, of course, resonates with me. (See the uproar I caused when I criticized some people who were too in love with abstract theory.) Rosen seems to say it's all well and good for law professors to be self-centered, resentful, bragging, narcissistic, reckless loners, but something different is needed from judges. I find it objectionable in law professors. (And I'm not the only law professor who does.)

But judges do have their hands on power, and they can do a lot of damage. Still, each Justice is only one of nine, and I think it's good that there are different kinds of judges talking to each other, contributing to a decision. I wouldn't want all nine to be flexible pragmatists. Having a hardcore originalist or two in the mix is a moderating safeguard. But don't give me five of them!

I think it's funny that Rosen is so eager to make Roberts's words into a weapon that he goes on to use so specifically against Scalia and Thomas. Here's Rosen, bringing his argument in for a landing:
Throughout its history, Roberts argues convincingly, the Court has best served itself—and the nation—when its individual justices have been willing to subordinate their own agendas in the interest of building judicial consensus and institutional legitimacy. Whether he will be able to resurrect John Marshall’s vision in a polarized, unbuttoned, and personality-driven age remains to be seen.
Scalia, of course, cares about institutional legitimacy. He just thinks it's founded on a specific interpretive theory. And Scalia thinks adherence to the theory of original meaning is the way to remove personal preference from decisionmaking. But it can't be denied that Scalia goes about in the world calling attention to himself as a personality. And it's not so clear that Roberts refrains from presenting himself as a personality, though certainly the Roberts persona is built on the "modesty" theme and executed in a style that would never fit Scalia.

Anyway, a nicely done article. Read the whole thing. He's got a long, substantial interview with the Chief Justice... and he knows how to use it.


Fritz said...

I love to read Scalia's belittling of the liberals on the Court. I'm just happy they now consist of concurrence with the majority rather than in dissent.

Too Many Jims said...

When asked, at the fairly recent conversation between Scalia and Breyer, about Roberts' aspirations for unanimity Scalia laughed and said "Lots of luck."

Robert said...

So...short and pithy?


Richard Dolan said...

"And those with the common touch win broader support than those who live entirely in abstractions."

Rosen's piece was odd in that, for all the talk of common ground, pragmatism and the rest of those bromides, there wasn't much in the way of practicality to it. Putting aside the generalities, he never suggests how any sharply divided Court (be it the SCOTUS or any other court of last resort) is supposed to coalesce around a common opinion deciding the substantive issuse in the key, politically charged cases -- e.g., abortion, gay marriage, campaign finance, etc., where the members of the Court are in fundamental disagreement. These are institutions that value and supposedly follow their own precedent. Thus today's case, no matter how narrowly decided, impacts on tomorrow's. To say that the Court is divided into liberal and conservative wings is to say that the justices look at constitutional questions in fundamentally different ways, and bring to the decision making process fundamentally different constitutional values.

In that context, the root problem is not the flamboyant personalities of some of the justices, or a too exquisite concern with one's personal reputation. Instead, it's the fact that the members of the Court disagree on first principles, and thus naturally disagree about results.

Compromise and collegiality are, of course, fine as far as they go and at some level are essential in any institution where decision making is by majority vote among a small life-tenured group. Overbearing arrogance or condescension to one's peers are obnoxious in any context, and if that was CJ Stone's approach, it's no wonder that he was a failure. But the opposite doesn't get you to consensus where the individual judges disagree on first principles.

In the end, how does Rosen imagine that the sentiments (after all, that's what they are) about collegiality and pragmatism are supposed to translate into action? In practice, I think it comes down to one of two models. Either it expresses itself as a sophisticated form of backscratching -- you vote with me on this case, and I'll vote with you on that one -- where everyone is too polite, too righteous ever to say anything like that directly. Alternatively, it becomes a situation where the divisions on the Court are resolved by one of the two ideological wings becoming dominant, perhaps because the proponents of that wing's position on the Court have the more forceful personalities or greater political skills.

NO dobut, some aspects of both of those models inevitably come into play in the Court's decision making all the time. But to elevate that reality into an overarching virtue is to get lost in the same airy clouds of abstaction that Rosen was, at least in form, criticizing.

Too Many Jims said...

I love to read Scalia's belittling of the liberals on the Court. I'm just happy they now consist of concurrence with the majority rather than in dissent.

Can you point me to such a concurrence from this or the immediately preceding term where he would not have already been in the majority? Or by "now" do you mean since his colleagues have become more persuaded by his approach, reasoning, writing and general disposition?

Thief said...

The Supreme Court is a lot like a law school... a series of strong personalities, and one guy in the middle (the Dean) who has to not only keep the strong personalities (both the nice ones and the flaming assholes) together, but also has broader responsibilities to the insitution itself.

P.S. And yes, I work at a law school. Veeeery far down the totem pole, though.

paul a'barge said...

The ideological purists are marginalized on the Court.

This is typical Rosen. In fact, the two justices whom Rosen despises have shown themselves to be a lot less ideologically driven than the rest of the liberal, "let's make it up as we go along and legislate from the bench" crew.

In fact, the ideology of which Rosen condemns these two is the simple ideology that the Constitution means what it says, and no more.

You want to talk about a crew willing to subvert the Constitution to their ideology, at all times, geez-ah-maneez, check out Ruth Bader, Souter and Breyer.

Rosen. Folks like him. You just can't make this stuff up. Do these Living Constitutionalists even have a clue as to how illogical their arguments are?

Seven Machos said...

Well, when I think of pragmatism, I think Ruth Bader Ginsburg. There's someone who isn't ideological at all.

AST said...

Not to mention his mixed metaphor of "loose cannons shoot themselves in the foot."

dorkafork said...

Surely it would be in the best interest of each side if it could win half the cases by a unanimous vote, rather than trying to win slightly more often by a 5–4 vote, since a unanimous victory would be harder, in the future, to overturn.

Uh huh. What does a unanimous vote become, "super-precedent"?

Joe said...

A unanimous vote is just slightly harder for the lower courts to screw around with.
7Machos, sarcasm doesn't come through so well in print. Though the sentiment is appreciated.
I agree with a'barge. Why are Scalia and Thomas singled out, when the liberals on the Court are as bad or worse in terms of forming consensus? It would seem to me that originalists are more restricted in what they can accomplish agenda-wise than the living constitution types, who believe that the constitution says whatever they want it to say.

Bill Dalasio said...

Okay, not being a lawyer or law professor, maybe you guys can clue me in: why should I want a "collegial and pragmatic" justice. I mean, for us trusting laymen, the Constitution is supposed to be the ultimate check on things like consensus and politics. The kind of justices Rosen seems to want strike me as ruling to make sure they get invited to the right parties.

Bill Dalasio said...

Okay, I'm not a lawyer or a law professor, so maybe some of you can clue me in here. I don't necessarily see why I'd want a "collegial and pragmatic" justice. To a trusting layman like me, the Court and the Constitution are supposed to be the ultimate check on consensus and the political realm. The sort of person that Rosen (and implicitly Roberts) seem to be looking for stike me as willing to rule based on ensuring they continue to get invited to the right parties.

Bill Dalasio said...

Professor Althouse,

My apologies about the double post. I hadn't realized the first posted.

Anonymous said...

However elaborate Rosen's efforts to disguise it, his attack on the conservative justices is the same tiresome, intellectually lazy tripe you can get anywhere else elite media conventional wisdom is sold; the justices who decide cases according to coherent principles derived from constitutional text and history are arrogant, rigid narcissists, whereas those who just go along for the sake of piling up votes are wiser and more secure.

This isn't analysis, first of all, but instead a personal attack couched in the language of dime-store psychology. Obviously, a Justice who frequently publishes concurrences and dissents may simply be fulfilling his perceived constitutional duty to say what the law is--not just what the result in the case is but why. This isn't vanity. We ought to be glad the Justices care enough about the consequences of their decisions to explain how such decisions fit within some broader philosophical structure. This is useful to serious students of the Court--too bad Rosen finds it such a nuisance.

To the extent he makes an argument here worth taking seriously, it is that because justices wield raw judicial power and law professors merely work in the medium of ideas, the justices shouldn't bother so much with trying to get the ideas right, but should instead focus on how best to leverage their power. The problem is that their duty is not to maximize influence but faithfully to interpret the constitution. If we have to choose between fractured opinions or opinions that reflect political horse-trading rather than honest analysis, I'll take the former.

The Exalted said...

it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record

is it just me or is consistency and coherency exactly what we want from the law, and supreme court justices in particular? what a bunch of baloney.

M. Simon said...

Thomas on Kelo and Raich was just outstanding: clear, concise, a knife to the gut.

I'll take that over go along to get along any day.

I like his - the law is the law approach.

Scalia is too prone to be one of those outcomes judges. Even though the right loves him because he delivers the outcomes they want.

History will show Thomas to be THE outstanding Judge of our time.

Anonymous said...

I find it funny that these comments have already devolved into accusing "liberal" judges and distinguishing "conservative" or "idealogues."

The article attacks idealogy w/o compromise. However, i have to admit, i find the entire premise laid by Roberts strange.

Does the nation really care if the SCOTUS rules in a more "united" fashion?

I suppose having a divided court can have a few negative effects.

1) It leads to more convoluted law, as lower courts tend to try to use dissents in a way to twist out of the original decision.

I think this reasoning is completely flawed. I think a majority opinion that has to deal with arguments by a persuasive dissent tend to be clearer and subsequently able to deal with alternative arguments.

Ironically, i think it is the "consensus" builders who have led to unclear precendents of late. Justice O'Connor's "swing" decisions tended to try so hard to find "common" ground that the decisions tended to become way too narrow and created confusion for lower courts when faced with similar, but not completely on point factual situations.


2) A divided court leads to a divided body politic. Namely, since SCOTUS opinions (especially ones with dissents) are often dialogues, it can lend strength or create divisivness among the public or politicians who read the opinions. Do 5-4 opinions make it easier for COngress to cry foul and fight over issues of judicial supremacy or constitutional questions? I doubt it.

Like it or not, constitutional and legal questions are difficult ones, and reasonable people will differ. I think any "divides" on the Court just shows that there are divides in how to rationally and reasonably approach these difficult questions. Essentially, i think SCOTUS mirrors the body politic, rather than shapes it. If there is only one aspect i agree with in respect to Justice Robert's desires, is that the Justices should be very careful in how they treat each other. I personally find it inappropriate when Judges start accusing each other and bickering over a legal opinion. (the 3rd circuit and some State Supreme Courts come to mind.) We don't need them to be pals for life, but keeping some of the vitriol out of the writing seems more useful than anything.

AlaskaJack said...

An interesting article. But I think Rosen confused Ruth Bader Ginsberg and John Paul Stevens with Justices Scalia and Thomas.

John in Nashville said...

Let's play what if for a moment. If Justice Scalia and Justice Uncle Thomas were originalists in fact and not merely in rhetoric, who would President Gore likely have appointed to succeed Chief Justice Rehnquist and Justice O'Connor?

andy said...

i gave Rosen the benefit of the doubt, and assumed that he wasn't a lawyer. but, alas, upon further inspection, facts reveal that he graduated from yale. how could someone from such a fine institution make such stupid comments? does he actually think justices should "trade" votes so as to bring more unanimity?

I have no explanation for Rosen's commentary except, perhaps, that Yale students are taught to think they are Justices themselves. Sad, really.