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Law, Power & Personality

by Jeffrey Rosen

In an age of tell-all memoirs, the Supreme Court remains the last institution of government to sustain a sense of mystery. Everything about the Court's majestic rituals -- from the marble palace it inhabits to the black robes worn by the justices -- is designed to minimize the human element and to convey the impression that the Court's opinions are the impersonal pronouncements of Delphic oracles. But this ideal, of course, is something of a myth. The Court is and has always been a deeply human institution where quirks of personality and temperament can mean as much as ideology in shaping the law. In an interview for THE SUPREME COURT, the companion book to the PBS series, Chief Justice John Roberts offered one of the best definitions of judicial temperament, which he said involves a judge's willingness to "factor in the Court's institutional role," to suppress his or her ideological agenda or desire for personal attention in the interest of achieving consensus and stability. "It's the difference between being a judge and being a law professor," Roberts said.

Judicial temperament is especially important for chief justices because of the unique demands of the job. The chief, like his colleagues, has only one vote. It is his prerogative when he is in the majority, however, to write the opinion for the Court himself or to assign it to the justice he thinks will best reflect his views and attract votes from his colleagues, as part of his broader effort to build consensus behind the scenes. Chief Justice John Marshall was especially deft at exercising these powers, and his skill in establishing convivial personal relations among his fellow justices helped him to cement the Court's institutional authority. Recognizing the virtues of leading with a light touch, Marshall wore a simple black robe rather than the traditional scarlet and ermine. He insisted that his colleagues room together in the same boardinghouse, so they could discuss cases over glasses of his excellent Madeira. As a result of his appealing personality and sensitivity to the views of his political antagonists (with the exception of Thomas Jefferson), Marshall was able to speak for a unanimous Court on the most divisive issues of the day.

If Marshall's modesty and geniality made him the prototype of a successful chief justice, his successor, Roger Taney, became the antitype. Unlike the outgoing Marshall, Taney was austere and frail, and lacked the common touch. Somehow he managed to hold his badly divided Court together, at least until it fragmented irreparably in the 1850s on the rocks of slavery and sectionalism. Taney's stubbornness and grandiosity were reflected not only in the reviled Dred Scott opinion of 1857, which prevented Congress from deciding the status of slavery, but also in a later decision holding that President Abraham Lincoln had no emergency power to suspend the writ of habeas corpus during the Civil War (Ex parte Merryman [1861]). Taney went out of his way to mock Lincoln, who responded to his arrogance by ignoring the chief justice, and Taney's rigidity and lack of humility ultimately destroyed his reputation.

The most effective chief justices have had a pragmatic concern for the good of the Court, while the least effective ones have often been the most ideologically rigid. One unsuccessful chief, Harlan Fiske Stone, who served from 1925 to 1941 as an associate justice and from 1941 to 1946 as the chief, was a former Columbia law professor who infuriated his colleagues by sitting behind his desk at the justices' private conferences and calling on them as if they were his students. Under Stone, the conferences meandered and the justices feuded openly, sometimes taking their personal rivalries into the newspapers. By contrast, many of the most successful chiefs have been former politicians, such as Chief Justice Earl Warren, who served as Governor of California and was the Republican candidate for vice president in 1948. When Warren joined it in 1953, a fractured Court was in the midst of deciding the landmark case Brown v. Board of Education, with at most only four confident votes to strike down school segregation. But Warren made a fifth vote -- and then visited the skeptical justices one by one, winning them over with his unpretentious style and convincing them that the Court and the country would benefit if the opinion were unanimous. Thanks to Warren's light-handed leadership, he was able to read the unanimous Brown opinion to a spellbound courtroom in 1954.

Chief justices are not the only members of the Court who may succeed or fail because of their judicial temperament; associate justices too are often hampered or aided by their inability or ability to get along with their colleagues. Personal and intellectual insecurity, for example, has often limited a justice's influence over time. Justice Harry Blackmun is both lionized and vilified as the author of Roe v. Wade (1973), but he was often unable to persuade his colleagues to join his opinions because of his difficulty producing them on time: he agonized over his drafts and called them "inadequate and hesitant," ignoring the advice of Justice Hugo Black, who had urged him to "go for the jugular." By contrast, some of the most successful justices have also been the most self-confident. Justice Sandra Day O'Connor often spoke for majorities of the Court during her service from 1981 to 2006, defining the Court's positions on the most controversial questions of American life, from religion to affirmative action. Although she liked to keep her options open, once she made up her mind, she refused to be budged. In her chambers, she sat on a hand-stitched pillow embroidered with the motto: "Maybe in Error but Never in Doubt."

Of course, a justice doesn't have to win majorities to wield lasting influence: some of the most respected justices in history made their marks through dissenting opinions, which tried to keep their colleagues intellectually honest and were eventually vindicated by history. Justice John Marshall Harlan, who served from 1877 to 1911, was known as the "great dissenter" because of his prescient and often lonely dissents from opinions refusing to recognize the civil rights of African Americans after Reconstruction. Harlan alone dissented in Plessy v. Ferguson, the 1896 opinion upholding railroad segregation; more than 50 years later, as Thurgood Marshall prepared to argue Brown v. Board of Education before the Court, he would return to Harlan's dissent for inspiration. (Like many justices before and after him -- including Louis Brandeis, Oliver Wendell Holmes, and Ruth Bader Ginsburg -- Marshall was eventually appointed to the Court after earning a reputation arguing cases before it.) On the Court today, Justice Antonin Scalia is noted for his stylish and often biting dissenting opinions, which he hopes will influence future generations. History suggests, however, that justices like Scalia, who view departures from ideological principles as a sign of heresy, have tended to be less successful than justices like William Rehnquist, a more pragmatic conservative who was willing to modulate his views when he thought the good of the Court and the country required him to. As a result, Rehnquist as chief won the affection of his liberal as well as conservative colleagues and helped to reshape the law in his own image -- a testament to the centrality of judicial temperament.