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.
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