January 11, 2007
Effective Justices
One passage from the interview by Jeff Rosen with John Roberts that I posted just below puzzled me, where Rosen suggests (and I believe he is speaking in his own voice rather than simply channeling Roberts):
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. (A justice often achieves more by saying less.) 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.
It is hard to test this claim without a better sense of the terms (what is it for a Justice to be "successul" or "effect" or to "wear ... well"?), but does it strike readers as true? My first instinct was "not particularly." The first Justice Harlan and Hugo Black seem like two clear counter examples. Sure, John Marshall was a consensus-builder who was of tremendous importance, but Justice Gabriel Duvall was every bit as "collegial" and can't be described as anything other than insignificant.
Obviously one might praise moderation and pragmatism in judicial adjudication for other reasons, but is it at all clear that Rosen is right that moderate Justices, however defined, are the ones who are received well by the history books? Comments (6)
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Marshall v. Jefferson
Via Orin Kerr, I read this very interesting interview with Chief Justice Roberts. He hopes to cut down on separate opinions (alas), and emulates Chief Justice Marshall:
I asked Roberts to contrast Marshall’s temperament with that of Thomas Jefferson, his archrival. “Jefferson certainly did not have the common touch,” he emphasized. “To some extent, maybe affected, and perhaps I’m being unfair to Jefferson but [he had] more of almost like a philosopher’s attachment to the ideas.” Roberts shook his head. “When you look at [Jefferson] side by side with Marshall, Marshall comes across as a more substantial character, certainly more likable. Yes, I think they’d both invite you to share their table and pour you a drink, but you kind of think you’d have a very academic discussion with Jefferson, and you’d have a good time with Marshall.”
Roberts believes that Marshall’s temperament and worldview came from his experiences as a soldier at Valley Forge, where he developed a commitment to the success of the nation. “Some have speculated that the real root of Marshall’s ill feeling to Jefferson was that Jefferson was not at Valley Forge, was not in the fight, and had what Marshall might regard as a somewhat precious attachment to ideas for the sake of ideas, while Marshall was more personally invested in the success of the American experiment.”
Regardless of whether you are Jeffersonian or a Marshallian, that strikes me as about right, and perhaps describes an interesting cleavage among constitutional lawyers, judges, and professors.
UPDATE: I also smiled at this:
Another reason for Rehnquist’s success as a chief justice, Roberts said, was his temperament—namely, that he knew who he was and had no inclination to change his views simply to court popularity. “That Scandinavian austerity and sense of fate and complication,” as Roberts put it, were important parts of Rehnquist’s character, as was his Lutheran faith. “It’s a significant and purposeful mode of worship to get up in the morning to do your job as best you can, to go to bed at night and not to worry too much about whether the best that you can do is good enough or not. And he didn’t: once a case was decided, it was decided, and if every editorial page in the country was going to trash it, he didn’t care.” Roberts said he associated Rehnquist with a certain midwestern stubbornness. “Anyone who clerked for him was familiar with him intoning the phrase, ‘Well, I’m just not going to do it.’” Here Roberts did a spot-on impersonation of Rehnquist’s deadpan drawl. “That meant that was the end of it, no matter how much you were going to try to persuade him. It wasn’t going to happen.”
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