Experts Offer Glimpse into Workings of Supreme Court
[Sorry, the video for this story has expired, but you can still read the transcript below. ]
RAY SUAREZ: Now, two veteran court watchers offer some perspectives on the U.S. Supreme Court.
In “The Supreme Court: The Personalities and Rivalries That Defined America,” George Washington University Law Professor Jeffrey Rosen examines the importance of judicial temperament throughout the court’s history.
Jan Crawford Greenburg, former NewsHour regular and now a legal correspondent for ABC News, looks at the making of the current court in “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.”
I talked with them recently in the Moot Court Room at the George Washington University Law School.
Well, Jeffrey Rosen, Jan Crawford Greenburg, between your two books we get 220 years of court history. Was it always clear that the Supreme Court, Jeffrey Rosen, was going to be the important institution that it became?
JEFFREY ROSEN, George Washington University: Certainly not. When John Marshall, the greatest chief justice, took over, it was a backwater. The court met in the basement of the Capitol. People kept turning down the job of chief justice, because it wasn’t considered important enough. Congress refused to allow the court to meet for two years.
It was not a prestigious job, by any means. And the progress of the court from that embattled backwater to the strong, self-confident institution we know today is largely a reflection of the personalities that made it up. That’s what’s so striking: It really is character and temperament that made the court into the strong institution.
RAY SUAREZ: Well, you put a lot of store in your story in the personal attributes of these men who became both associates and chiefs over the years. Was this something that you even understood at first? How important personality, temperament was?
JEFFREY ROSEN: No, I was so struck by this. I just thought, why not pair justices? Take a pragmatic justice who’s able to compromise with a brilliant justice who’s more interested in ideological purity. And I found in these pairings that the brilliant ideologue was less successful than the pragmatic justice.
And it’s surprising. Take Oliver Wendell Holmes and John Marshall Harlan. Holmes is a great liberal icon. People think he was a great defender of civil rights, but it was actually the opposite.
He was a radical majoritarian, based on his experience in the Civil War. He said, “I hate justice. If my fellow citizens want to go to Hell, I will help them. It’s my job.” He almost never met a law he was willing to strike down, and he upheld some of the darkest laws that were passed by Congress, including those subverting African-American voting rights.
By contrast, John Harlan, a former slaveholder, the only southerner on the court, less brilliant than Holmes. Holmes condescended to him and said, you know, he was the last of the great “tobacco-spitting judges.” He was very emotional and moralistic.
But Harlan, based on his experience in the Civil War as a practical politician, understood the central achievement of Reconstruction, wrote that great dissent in Plessy v. Ferguson, objecting to the court’s decision to uphold railway segregation, and, because of his personal experience, was able to foreshadow the great Civil Rights revolution that the Warren Court wouldn’t recognize for almost a century.
It’s an incredible lesson about the importance of judicial temperament.
Personalities on the bench
RAY SUAREZ: Now, Jan Crawford Greenburg, Jeff Rosen's personalities and also events in history shape, mold the court, and sort of leave it at the doorstep for you to begin your story with the modern court and how the table was set for the struggles of today.
JAN CRAWFORD GREENBURG, Legal Correspondent, ABC News: Right. And I focus on the Rehnquist court, which was together for 11 years, longer than any other Supreme Court of nine justices in history, and how that court, with those justices, came to be and, in many ways, came to disappoint conservatives and the Republican presidents who nominated them.
And personalities had something to do with it. Some of the justices just didn't turn out to be as conservative as conservatives had believed. But others who came on the court with very strong conservative views affected the court in unexpected ways.
One of the most surprising stories that I came across during my research was the role, the real role of Justice Clarence Thomas on the Supreme Court. Now, he came on the court in 1991. And immediately he was portrayed as kind of following in Scalia's footsteps, that Antonin Scalia was his mentor, you know, that he wasn't necessarily just thinking for himself.
But I found all these documents in the Library of Congress that showed just the opposite was true and that, if any justice that year was changing his vote to join the other, it was Scalia changing his vote to join Justice Thomas. That wasn't the storyline that we heard at the time.
Thomas came on the court with such strongly held, clear, independent views. So what happened that term is the court went inexplicably to the left. He replaced this liberal icon, Thurgood Marshall. But that year, the court moved to the left.
And the reason why is that Justice O'Connor, the justice that we look to in the middle, the moderate justice who saw herself as kind of a balanced person, she moved over to the left that term, in response, I argue, to some of Justice Thomas' very strongly argued views.
The importance of 'temperament'
RAY SUAREZ: Well, help me understand better what you mean by temperament, and certainly in the context of these pairings that you use to illustrate it?
JEFFREY ROSEN: The best definition of judicial temperament I encountered came from Chief Justice Roberts. He said, I think judicial temperament is a willing to subordinate your own conception of the proper view of the law toward the interests of the court as an institution.
He said, Justices are not like law professors. They're not supposed to write long articles working the law pure. And he expressed concern that the court in recent years had justices who were acting more like law professors, less interested in achieving unanimity than in pressing their own ideological agenda.
RAY SUAREZ: Well, do you find, in your story, a modern example of a man or woman who was very promising but, because of this lack of temperament, isn't having the kind of influence that it might have been expected going in they would have?
JEFFREY ROSEN: I think one dramatic example is Justice Scalia, Antonin Scalia. When he was appointed, observers predicted, because of his wit and intelligence -- he writes like a dream, he's got so many gifts -- people thought he would remake the court in his own image.
While Rehnquist, who was promoted to chief justice at the same time that Scalia was appointed to the court, they thought, well, he would just be an ideologue and would alienate his colleagues. Actually, the opposite came to pass.
Rehnquist, because of his appealing temperament, inspired liberal and conservative colleagues, so that the liberals said he was the best boss they'd ever had, where Scalia, because of his biting wit, which sometimes has a nasty edge, alienated his colleagues, so that now he says that he writes more with verve and panache to inspire textbook editors than to actually try to transform the court.
We're trained to think that brilliance is the most important quality in a justice, but it's not. Often the more brilliant justice -- Scalia is probably more book smart than Rehnquist, just as Holmes was certainly more brilliant than Harlan -- is less effective than the justice who's collegial, pragmatic, get along with his colleagues, and is able, by leading with a light touch, to actually shape the future of the law.
RAY SUAREZ: And, Jan, in your story, Rehnquist grows through the telling of his colleagues on the bench.
JAN CRAWFORD GREENBURG: That's exactly right. And as Jeff has said, when we were talking about the differences between Rehnquist and Scalia, one of the things that I found, in doing my research, in the papers of the Reagan library, was a memo that suggests that Reagan's advisers had some concerns about Antonin Scalia.
In that memo, they said that Scalia was prone to occasional outbursts of anger, and so he might have a tendency to rub his colleagues the wrong way. This is when they were trying to decide whether to nominate Scalia or Robert Bork. They actually believed that Bork might be the more collegial, congenial colleague.
Now, all these things that Jeff talks about and explains so beautifully in his book, the Bush White House got that, when they were looking at who they wanted to nominate to the Supreme Court. His legal team focused very closely on these ideas of congeniality and collegiality, and so that was a big plus for John Roberts when he went into the process. They believed that Roberts would be a good colleague.
RAY SUAREZ: So are they looking for a new Rehnquist in John Roberts?
RAY SUAREZ: I wouldn't say they were looking for a new Rehnquist. And I think they believe that Roberts will be a more predictable conservative than Rehnquist was.
I mean, Rehnquist over the years frustrated conservatives like Scalia and Thomas, because he did kind of tone down some of his views and take positions that they thought were inconsistent with things that he'd done in the past. I don't think Roberts will do that.
Roberts is very disciplined. He has a clear view of the law. He likes rules. But at the same time, he doesn't have those sharp elbows that Scalia has. So Roberts could be the kind of force, he would be the forceful conservative intellect of an Antonin Scalia, but the collegiality of a William Rehnquist.
Molding the court through opinions
RAY SUAREZ: Have there been cases where justices have been very conscious of their role as a deciding vote or the opinion writer in a controversial decision?
JEFFREY ROSEN: Maybe the best historical example of this is Chief Justice Taney, when he wrote the Dred Scott decision, and later when he wrote an opinion refusing President Lincoln's effort to suspend habeas corpus without congressional approval, was so eager that the opinion get circulated that they actually had, at his own expense, a copy of the opinion printed and widely distributed.
I have a copy of this, and it says, "Distributed under the authority of the chief justice." He really -- there was no Internet, and he wanted to get out his side of the story. Lincoln, of course, responded by ignoring Taney and refusing to respond to him. So self-promotion is not always a virtue on the Supreme Court.
JAN CRAWFORD GREENBURG: Well, Harry Blackmun is a perfect modern-day example. You know, he's the author of Roe v. Wade, and that opinion came to define his life and his career as a justice.
And he was very defensive of that decision. He would get just mail by the bucketfuls, as you can imagine, obviously, on such a controversial topic. And he saved most of it, even cataloging it.
And even when the other justices would write opinions, he was consciously looking for how they might vote or how it might affect Roe. Even language, words the justices would use, in cases that had nothing to do with abortion, say viability -- he once wrote Justice O'Connor a memo in a completely unrelated case and said, "I noticed you used the word 'viability,' and I would appreciate you not use that. My experience with the medical profession in this case has made me quite sensitive to that."
RAY SUAREZ: Are there some decisions that have aged particularly well?
JEFFREY ROSEN: The greatest justice who's aged well is John Marshall Harlan. In his era, he was dismissed as something of a crank, a muddled justice whose political preferences just were enacted into law.
But in the 1960s, some scholars did a list of all the great Harlan dissents that became majority opinions, and these included his dissent in Plessy v. Ferguson, the court decision upholding segregation...
RAY SUAREZ: Yes, remind people what that was about, segregation, separate but equal accommodations.
JEFFREY ROSEN: Separate but equal as equal. The court, in Brown v. Board of Education, overturns this. Thurgood Marshall reads John Marshall Harlan's dissent for inspiration before he argues the Brown decision.
Harlan's decision objecting to the court's decision to strike down a civil rights act in the 1870s, vindicated by the Civil Rights Act of 1874. Harlan's decision objecting to the court's refusal to apply the Bill of Rights against the states, which the court reverses throughout the 1960s.
The opinion striking down the income tax, which is reversed by constitutional amendment. All of the decisions striking down Congress's power to regulate the economy, reversed by the New Deal. It's a stunning list.
And it just shows how part of a justice's success is not only judicial temperament and character, which we've been talking about, but also a justice's success in predicting the future. So nowadays, Harlan is loved, even though he was a former slaveholder. People are willing to forgive his blind spot, the fact that he held slaves, because he was right about all of these issues that the future would care intensely about.
RAY SUAREZ: Jan?
JAN CRAWFORD GREENBURG: Well, even today among the current members of the court, that decision in Plessy, his dissent in Plessy, is something that many find inspirational.
Justice Thomas, for example, who often is alone or only with Scalia in dissent, says to his clerks often that he looks at that dissent and he thinks, "You know, imagine the grief that he took for that." I mean, he draws inspiration from that, and it makes Justice Thomas feel that, if he could, you know, he could withstand criticism, as well.
I mean, he doesn't care what people think about his opinions because his job is to apply the law, to look at the law, regardless of what the critics say, just like Justice Harlan did in that decision in Plessy.
RAY SUAREZ: Was there a finer-grained understanding that you came away with for the court as an institution, for the justices as individuals, Jan?
JAN CRAWFORD GREENBURG: What I walked away from with this is that, you know, these are nine really smart people, and they're all struggling to get what they believe would be the right answer under the law.
They all have different theories, some slightly different than the others, some wildly different than the others. But they're all struggling to get the right answer in a case.
Now, they don't always agree. Sometimes they divide very bitterly. But they're looking to the law. It's very different than the other branches. And the more you get into that, and the research and the documents and interviews, the more it becomes even clearer.
RAY SUAREZ: Jeff?
JEFFREY ROSEN: I learned that personality matters, character matters, temperament matters. Brilliance is not enough.
You see over and over again the brilliant ideologue shooting himself in the foot, the collegial pragmatist creating majorities. The self-serving justice is temporarily vindicated, but ultimately scorned by history, whereas those who get along well with their colleagues are able to reshape the court in their own image.
If I were a president picking a justice, I would, first of all, read a lot of judicial biographies, because it's incredibly fun, and then pick a justice whose character you trust, who's able to find common ground, and realize that the court ultimately, as an institution, is more important than the individual ideologies of any particular justice at any moment in time.
RAY SUAREZ: Well, if I were advising a president making a pick on what to read, I'd suggest your two books. Thanks a lot.
JAN CRAWFORD GREENBURG: Thanks.
RAY SUAREZ: A programming note: Jeffrey Rosen's book is a companion to a four-part PBS series, "The Supreme Court," which debuts this Wednesday, January 31st. Check your local listings for times.