The Future of the Court

by Jeffrey Rosen

For the next few decades, responsibility for leading the Supreme Court is likely to fall to John G. Roberts, appointed Chief Justice in 2006. How will the Court be transformed under his leadership as it confronts a vexing range of issues, from new technologies of human reproduction to new technologies for identifying and punishing suspected terrorists? I met with Chief Justice Roberts in July 2006, soon after the end of his first term on the Court. In an exclusive interview for THE SUPREME COURT, the companion book to the PBS series, he shared with me his thoughts about his new job, including his judicial models and leadership style.

In particular, Roberts expressed concern about the degree to which justices in recent years have acted more like individual law professors than members of a collegial court, and also about the way that the public focuses on the Court's narrowly decided decisions rather than on the far greater number of unanimous ones. Roberts looked to his greatest predecessor, John Marshall, for a model of how to unify a fractious group of justices, and said that he hoped to encourage his colleagues to decide cases narrowly rather than broadly, in order to foster as much unanimity and consensus as possible. And he suggested that Marshall's success was due not only to his judicial philosophy but also to his judicial temperament -- the conviviality, good humor, modesty, and moderation that led even his philosophical opponents to admire and respect him. By leading with a light hand, Roberts suggested, Marshall was able to remake the Court in his own image, and he suggested that he would try to emulate his greatest predecessor's example.

Whether Roberts will be successful in his goals, of course, depends not only on his own temperament but also on those of his colleagues, and the degree to which all of the justices are willing to compromise and achieve consensus for the good of the institution. But history suggests that the more institutionally minded justices will be more successful over the long run than the brilliant loners and those who promote themselves and their agendas at every turn. The pragmatic Chief Justice John Marshall repeatedly outfoxed his more radically philosophical relative Thomas Jefferson, and this pattern has held for the past two centuries. The evangelizing civil rights crusader, John Marshall Harlan, had more dissenting opinions vindicated over time than the radical majoritarian, Oliver Wendell Holmes. The politically shrewd Hugo Black remade the Court in his own image, while his friend and fellow liberal icon, William O. Douglas, limited his long-term influence because of his self-indulgence and reluctance to persuade his colleagues. More recently, the pragmatic conservative William Rehnquist was more successful in winning over his colleagues than has been Antonin Scalia. In each of these pairings, which are examined in the series and which I explore in THE SUPREME COURT, it was judicial temperament -- defined as a willingness to put the interests of the Court above the interests of an individual justice -- that made the difference between success and failure.

Roberts, of course, has strong views, and some conservatives hope that he and his fellow Bush appointee, Samuel J. Alito, will lead the Court in a more conservative direction. But history once again suggests that the Court tends to move to its own rhythms, which are seldom in lockstep with those of any single president. Franklin D. Roosevelt, with nine appointments, solidified the death of conservative laissez faire judicial activism and the growth of judicial deference in economic affairs. By contrast, Richard M. Nixon, with four appointments, never succeeded in rolling back the Warren Court tradition of vigorously protecting civil rights and liberties. Indeed, since 1968, Republican presidents have pledged to appoint justices who will uproot the legacy of Earl Warren but have been only partly successful. Under William Rehnquist's leadership, the Court continued to protect individual rights -- striking down federal and state laws at a higher rate than any other Court in history -- while showing slightly more concern about states' rights than its more liberal predecessors.

Constitutional futurology, of course, is always an inexact science. The issues that transfix one generation are seldom the ones that will seem most important to the next one. This is why Supreme Court confirmation hearings have a knack for fighting the last battle. When he was nominated for chief justice in 1986, for example, William Rehnquist was asked extensively about memos he had written as a law clerk for Justice Robert Jackson in 1952 that seemed to question whether the Court should strike down school segregation. In the process, the Senators largely missed the great issue that would come to define the Court during Rehnquist's tenure -- the proper balance between the states and the federal government.

Although it is impossible to predict with confidence the precise subjects the Court will face over the next 25 years, they are sure to look different from the ones that excite us today. For example, concerns about the legal status of abortion may be overshadowed by new issues engendered by increasing access to in vitro fertilization -- which may potentially allow parents to select not only the sex of children but also their intelligence, eye color, sexual orientation, and height. It is easy to imagine fierce battles over the extent of reproductive choice outside the womb, battles that may well end up before the Court. By the same token, as fears of terrorism continue, we will continue to see battles between the president and Congress about the scope of appropriate surveillance technologies, and also about which branch is entitled to use them and under what circumstances. As brain-imaging technology becomes more precise, it is even possible to imagine attempts to profile or even imprison suspects based on their apparent propensity to commit future acts of violence. How, precisely, the Supreme Court would divide over these vexing issues -- and others that escape our current vision -- is hard to imagine.

Although the Court is not an explicitly political institution, its legitimacy has always depended on the degree to which the public ultimately accepts its decisions. This is why the justices have been wise, over time, to reflect the views of national majorities more often than challenging them, recognizing that intensely high-handed decisions may provoke popular backlashes. Part of the success or failure of the Roberts Court will rest on its ability to produce decisions that are accepted by a majority of the country as being rooted in constitutional principles rather than partisan politics. Roberts is right to try to lead the Court toward decisions that will be accepted in precisely this way. His success in doing so will turn not only on his judicial philosophy and that of his colleagues but also on their judicial temperaments. It is too early in Robert's tenure to evaluate his success, but it will become clear over time whether Roberts, like many of the Court's most effective leaders before him, will be able to use his intellectual and personal skills to unite the Court around him.