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. During his first term, he was surprised to find some justices talking openly about how to protect the legitimacy of the Court. His colleagues “are concerned about having new justices on the Court,” he said, and “don’t want the Court to seem to be lurching around because of changes in personnel.” And he felt that his success in achieving an unusually high number of unanimous opinions was due to the other justices’ eagerness to be helpful to a newcomer, much like a fiancé meeting his in-laws for the first time at Thanksgiving. “I do think people were being particularly helpful and accommodating in the first term,” he said. “Maybe they won’t feel the same way the second. We’ll see.”
But even if Roberts’s honeymoon lasts a little longer, he will confront a series of challenges that Marshall never faced. In an age when we insist on seeing public officials as personalities and evaluating their actions in personal terms, Roberts faces an uphill battle in persuading his colleagues to resist the spotlight.
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.
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 asked Roberts to define the qualities of judicial temperament that he thought successful justices like Marshall embodied. “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,” he said. “It’s the difference between being a judge and being a law professor.” In other words, Roberts said, judicial temperament involves a judge’s willingness to “factor in the Court’s institutional role,” to suppress his or her ideological agenda in the interest of achieving consensus and stability.
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.
Two of the most ambitious constitutional philosophers in American history—Thomas Jefferson and Oliver Wendell Holmes Jr.—achieved greatness in public life because of, not in spite of, their philosophical inconsistencies. Jefferson was a relatively successful president because he was willing to abandon his strict constructionist ideals and approve the Louisiana Purchase: he understood that America’s future depended on it. And Holmes is a liberal and libertarian hero today largely because toward the end of a career staked on judicial restraint, he belatedly embraced judicial activism in Supreme Court cases involving free speech. The examples of Jefferson and Holmes suggest that a coherent judicial philosophy is important, but so is a degree of flexibility. At the same time, Jefferson and Holmes were repeatedly outfoxed by the less scholarly John Marshall and John Marshall Harlan—judicial thinkers whose conviviality, practicality, and sense of the possible allowed them to transform the law in their own image.
Marshall, after all, had a strong philosophy of his own, rooted in vigorous protections for national power and property rights, but he chose not to press his philosophy in cases he knew he couldn’t win. (Remember his axiom: “I am not fond of butting against a wall in sport.”) Although conservative Federalists charged that he was too fond of popularity, Marshall was not noted for his willingness to compromise—but he articulated his principles in ways that his opponents were able to accept. Part of what made Marshall trustworthy, Roberts told me, was that “he was not a deal maker, not a broker. That’s not how he facilitated consensus. He had strongly felt principles, principles for which he had risked his life … But he was willing to explain, to talk it out with people, and he had a prodigious intellect but he didn’t scare people off with it … He was friendly, open—people trusted him—and [he] was able to bring people along.” As for Marshall’s willingness to disappoint his ideological supporters, Roberts says that even if Marshall had the votes to push the Federalist agenda harder than he did, he thought it “better to proceed in a way that … wasn’t going to alienate people on the Court and turn the Court into another battleground.”
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. But his ultimate success will depend not only on his colleagues but also on his own temperament and character. Roberts approvingly quoted the observation of Chief Justice Charles Evans Hughes that “Marshall’s preeminence was due to the fact that he was John Marshall.” If Roberts succeeds, his success will be due to the fact that he is John Roberts.
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