Lessons for John Roberts: An Analytical Comparison of Marshall and Rehnquist
Dr. Jim Riley
27 April 2009
Unanimity Under John Marshall 4
Toward Divisiveness: Stone through Rehnquist 13
John G. Roberts: Nostalgic Idealism 20
Work Cited 25
Almost immediately after being confirmed by the Senate, Chief
Justice John G. Roberts began a battle within the Court to enhance Court
unanimity that was, according to Jeffery Rosen in “Roberts’ Rules,” destroyed
decades ago by the “personalization of judicial politics” (106). This has
become one of the principle goals of our seventeenth Chief Justice, and it
reflects a sense of nostalgia for
Unanimity under John Marshall:
When John Adams appointed
Little or nothing would need to be done though to lessen
the authority of the Supreme Court. In Federalist No. 78, published in 1788,
Alexander Hamilton had written that “the judiciary is beyond comparison the
weakest of the three departments of power; that it can never attack with
success either of the other two; and that all possible care is requisite to
enable it to defend itself against their attack” (Hamilton). Nothing
substantive had since been done to improve the prestige and authority of the
Court, which explains why ex-Chief Justice John Jay declined a second tenure.
Between 1790 and 1800, only sixty-three cases were reported to the Supreme
Court, and only a handful of these were significant in any way. (Smith 282).
But most importantly, especially considering the subject of this essay, the
Court had not yet affirmed its role as interpreting the Constitution. Indeed,
the Constitution proclaims, “the judicial Power of the
Other Justices were even more
involved in partisan politics—and specifically, Federalist causes. Each and
every Justice presiding at the time of
This preliminary discussion of the Court’s initial
standing is necessary for understanding John Marshall’s supreme importance and his methodology for guiding the Court. “Of
importance of the judiciary at all times, but more especially the present I am
very fully impressed,” wrote Marshall in a letter to Charles Cotesworth Pinckney on the morning of Jefferson’s
inauguration, “I shall endeavor in the new office to which I am called not to
disappoint my friends” (Marshall 89).
Substituting “public” for “friends” gives a fairly accurate description of
His primary goal being to remove the Court and its
members from partisan politics and to establish judicial authority, John
Marshall started slowly. Black robes would symbolize institutional oneness. By
wearing black and requiring that his colleagues do the same, Marshall was
making a subtle gesture to the American public. He had witnessed the
Federalists “self-destruct electorally through an excess of hubris, and he
recognized the Court was on shaky ground” (Smith 286). But formalities aside,
the new Chief failed to make substantive progress in his first session, albeit
the February 1801 term offered little opportunity. Black robes might help bring
the Court above partisan politics and assert judicial stature, but Marshall
knew that more would be needed to reverse the damage his predecessors had done.
When Marshall returned to Washington the following August, he arranged for his
colleagues to stay at Conrad and McMunn’s
boardinghouse. In this subtle move to advance the cohesiveness and change the
identity of the Court, the Chief brought the other Justices together under one
roof. A few years later, Justice Joseph Story, a
My brethren are very interesting men with whom I live in the most frank and unaffected intimacy. We are all united as one, with a mutual esteem which makes even the labors of Jurisprudence light…We moot every question as we proceed, and familiar conferences at our lodging often come to a very quick and, I trust, a very accurate opinion in a few hours. (Story 217)
With the exception of Thomas Jefferson, political opponents had a difficult time finding unlikable qualities about Marshall. Justice Story once proclaimed, “I am in love with his character, positively in love” (Yarbrough 32). Humble in his professional and everyday life, Marshall was both crafty and appealing. In the first line of his short “Autobiographical Sketch,” which he wrote at Story’s request in 1827, Marshall claimed modestly, “The events of my life are too unimportant, and have too little interest for any person not of my immediate family, to render them worth communicating or preserving” (Rosen 32). Only a person of Thomas Jefferson’s temperament—“romantic and visionary…[insisting] on carrying most disputes back to first principles, [tending] to stake out radical and extreme positions in the name of ideological purity—could force himself to dislike someone of Marshall’s demeanor (Rosen 32). Fellow soldiers at Valley Forge describe him as the best-natured person they ever met, lighthearted even in the midst of adversity and always willing to entertain. He was a self-sufficient man, who would do his grocery shopping even while serving as Chief Justice. On one occasion, a fellow townsman saw the shabbily dressed Marshall at the market and mistook him for servant. The man tossed a coin to Marshall, asking that Chief Justice carry his own bird home. Marshall accepted (Rosen 34). Similar anecdotes demonstrate the extent of Marshall’s modesty and friendliness. With such an appealing personality, Marshall could easily remain in good standing with his fellow Justices, even those less moderate than he.
But while Marshall seemed to lack any blaring personality flaw, some of his political contemporaries had a more moderate and reserved assessment of his character. Speaker of the House Theodore Sedgwick did not approve of Marshall’s moderated and often malleable views. As a young congressman, Marshall sought approval and good favor of his colleagues. This eager yearning to be liked caused Marshall to fashion his decisions in the shape of public opinion. In a letter to Federalist leader Rufus King, Sedgwick wrote:
He is attached to pleasure, with convivial habits strongly fixed. He is indolent, therefore; and indisposed to take part in the common business of the House. He has a strong attachment to popularity but [is] indisposed to sacrifice to it his integrity; hence it is that he is disposed on all popular subjects to feel the public pulse and hence results indecision and an expression of doubt…He is disposed to…express great respect from the sovereign people, and to quote their opinions as evidence of truth. (Novick 205)
So at times, in making decisions, he would leave himself ample room to alter his stance. To avoid losing favorability, the congressman would not make definitive claims about contentious matters. Ever the politician, he would temper his conclusions in response to public opinion, which may explain how he was able to win every political election in which he ran (Rosen 33). Sedgwick lamented the young Marshall’s strong desire to please. But without his personality, Marshall would never have been able to strengthen and expand the role of the Supreme Court.
Speaker Sedgwick may have had an unfavorable appraisal of Marshall’s character, but it pales in comparison to Thomas Jefferson’s scathing remarks. “So great is his sophistry,” once claimed Jefferson, “you must never give him an affirmative answer or you will be forced to grant his conclusion. Why, if he were to ask me if it were daylight or not, I’d reply, ‘Sir, I don’t know, I can’t tell’” (Menand 62). Jefferson believed Marshall would often employ illogical arguments with the intention of distorting the issue and deceiving his opponents. The “state has suffered long enough from the want of any counterpart to the rancorous hatred which Marshall bears to his country and from the cunning and sophistry within which he is able to surround himself” (Rosen 35). For the President, Marshall’s modesty and moderation were part of calculated plan to mislead his opponents. While some of his claims are unsubstantiated, to some extent Jefferson accurately characterizes Marshall’s judicial decisions. As in Marbury v. Madison, some of the Chief Justice’s opinions appear to give his political opponents an immediate victory but then utilize crafty legalisms to prevent any long-term consequence (Rosen 36). He would appear at first to endorse Republican ideals, but then after dancing back of forth, he would reach the opposite conclusion, claiming that this can be the only logical option. Whether or not Jefferson accurately characterizes his primary political opponent, the Chief Justice became a unifying force during his tenure on the Court, in part due to his crafty opinions. By granting small and inconsequential victories to the opposition, Marshall could coax his opponents into accepting his opinion.
When the Supreme Court convened in early August for Marshall’s second term as Chief Justice, the highly contentious case Talbot v. Seeman (1801) was first on the docket. At issue in this case was the constitutional status of an incident that happened in the quasi-war with France. During the two-year Undeclared War, the French military vessel la Diligente captured the German merchant vessel Amelia, but the vessel was soon intercepted by the USS Constitution under the command of Captain Talbot, who claimed salvage rights over the recaptured ship. Positions in the case were drawn sharply along partisan lines. Representing the appellant Talbot, two prominent Federalist lawyers—Congressman James A Bayard of Delaware and Jared Ingersoll of Philadelphia—claimed that the Captain was justified in seizing the merchant vessel, for it was armed and flying French colors. Two successful Republicans, John T Mason and Alexander Dallas, represented the respondent, emphasizing the neutrality of Amelia and the legal status of the quasi-war. Under international law, an enemy vessel captured during times of war may be condemned legally, but there was no formal declaration of war between France and the United States. With partisan politics motivating the arguments, the final opinion would make or break the Court’s stature. That is to say, the Court would have an opportunity to stand above partisanship, pursuant of Marshall’s vision (Smith 292).
Four days of oral argument and another week of deliberation later, the Court handed down its first opinion. John Marshall had a very distinct notion of what the opinion should represent. On a different occasion, the Chief Justice claimed,
The course of every tribunal must necessarily be, that the opinion which is delivered as the opinion of the court, is previously submitted to judges; and if any of the reasoning be disapproved, it must be so modified as to receive the approbation of all, before it can be delivered as the opinion of all. (Smith 282)
The Court’s opinion in Talbot certainly fit this ideal and became the first Supreme Court Case to be labeled as “The Opinion of the Court”—a unanimous decision with no concurrence and no dissent. Armed with his likeable and tempered personality, Marshall convinced his colleagues about the importance of speaking with a single voice. Indeed, a split decision would have reaffirmed public perception of the Court as an instrument of partisan politics. By resolving such a complex and politically contentious case under a single opinion written by the Chief Justice, the Supreme Court demonstrated its institutional solidarity and affirmed a more prominent role in American politics.
Marshall believed that the “Opinion of the Court” should be written by the Chief Justice, as such would advance the institution’s authority. Over a four year span, the Court delivered 46 written opinions, all of which were unanimous. Marshall participated in all but four of these, and if he participated, he also announced the opinion, without fail. Even with strong-willed characters as colleagues—e.g. Chase and Paterson—Marshall could broker a consensus that would reflect the collaborative will of the Court. Achieving unanimity and speaking in unison was as important as the actual, effective outcome. Talbot demonstrated Marshall’s unique leadership abilities. The Court did not decide in favor of either side, and instead allowed Captain Talbot to collect only one-third of the original amount claimed. The Opinion also upheld the authority of Congress: “The whole powers of war being, by the Constitution of the United States, vested in Congress, the Acts of that body can alone be resorted to as our guides in this enquiry.”<![if !supportFootnotes]><![endif]> Without any statutory basis for its opinion, the Court relied instead on standards of reasonableness, a testament both to Marshall’s cunning and to the beginning of a new era in US politics. The “Opinion of the Court” finds its origins in the Marshall Court—specifically, in Talbot. In the first written opinion of the August term, the Supreme Court had established its broad authority to interpret law and, at the same time, won the favor of Congress by recognizing that it alone possessed war powers (Rosen 293-295).
At the same time the Marshall Court was considering Talbot, a new and potentially more heated battle was brewing, one that could make or break the new direction of the Court. Thomas Jefferson was inaugurated on March 4, 1801. But on March 1, just three days before leaving office, John Adams continued presidential business late into the night, signing “midnight appointments” of federal judges and other officials. Some of the commissions, however, did not reach the intended recipients, including one heading for William Marbury which would have made him justice of the peace for District of Columbia. Personally offended by Adams’ act, Jefferson attempted to purge the government of Federalist officeholders appointed after Adams had been defeated, as well as those guilty of misconduct. The newly elected Republican Congress eliminated the Judiciary Act of 1801, which created the new judgeships and changed the size of the Supreme Court. By order of the President, the new Secretary of State James Madison held back the commissions that had not yet been delivered to Adam’s appointees. Eight months later, in December 1801, Marshall asked the Secretary of State to defend his actions before the Court. To this Jefferson responded vehemently, claiming that the Federalists “have retired into the judiciary as a stronghold” and “from that battery all the works of republicanism are to beaten down and erased” (Yarbrough 6). Jefferson and Madison ignored Marshall’s request (Rosen 30).
William Marbury responded by petitioning the Supreme Court to force James Madison to deliver the commissions. On February 14, 1803, the Supreme Court heard oral arguments, which focused on the following constitutional questions: Did Madison have an obligation to deliver Marbury’s commission and, if so, did the Supreme Court have the authority to require it? When first considering the case, Marshall would no doubt have rather abstained from issuing an opinion. If he sided with the Federalists and ordered the Secretary of State to deliver the documents, the executive branch would ignore the command, thereby demonstrating the Court’s weakness and lack of authority. But if he ruled against Marbury, the Federalists would criticize him for bowing to political pressure. With all of these difficult issues in mind, Marshall handed down a unanimous decision which demonstrated his cunning and his leadership capabilities: “The province of this Court is, solely, to decide the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion. Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this Court.”<![if !supportFootnotes]><![endif]> According to Marshall, the Secretary of State had an obligation to deliver Marbury’s commission, but the Supreme Court could not require it because the statute authorizing the Court to issue such orders was itself unconstitutional.
Republicans did not contest the holding as it gave them a short-term victory. But by asserting its power of judicial review, which before Marbury was not a widely accepted function of the Court, Marshall strengthened judicial prestige and establish an important precedent for later opinions. William Marbury never received his commission, but the Court claimed something far more profound—an authoritative position in American politics. In helping to facilitate this assertiveness, John Marshall instilled in the Court deference for the Constitution as a core document of central government and a source of authority for the institution.
Towards Divisiveness: Harlan Fiske Stone through William H. Rehnquist
The “Heroic Courts”—a designation used by Peter Charles Hoffer in The Supreme Court: An Essential History to describe the Court from Chief Justice John Marshall through Chief Justice Salmon P. Chase—changed the role of the Court and the significance of the Constitution. This would not have been possible without Marshall’s strong leadership capabilities. Political and legal change and uncertainty continued to feed into the “ideology of the High Court well into its fourth and fifth generations” (Hoffer 13). But by the early twentieth century, the Court had well established its authoritative position in American society; institutional solidarity no longer served the role it once did. In the early 1940’s, when the era of “free-wheeling dissent” began, the justices started to exert their individuality without any debate and arguably without any realization that such an evolution was occurring. Some attribute this era to the leadership deficiencies and lack of judicial experience of Chief Justice Harlan Fiske Stone, who highly valued dissent and whose “professional life as a law professor and law school dean…inclined him to value free, individual expression more than institutional solidarity” (Schwartz 9). Others blame the makeup of the Court under Stone, which was comprised mostly of Roosevelt loyalists who lacked judicial experience and who saw the Court as a tool for establishing public policy. In any case, since 1941, when Stone was confirmed, the Supreme Court has become increasingly fractured, dissenting and concurring opinions abounding. Each justice since that time has been socialized into an environment where consensus and institutional solidarity has little value.
Since Stone, each Chief Justice has accepted this departure from the dynamics of the Marshall Court and, in many ways, facilitated institutional discord. Elevated to Chief Justice in 1986, William Hubbs Rehnquist would preside over a particularly fractured and, in some cases, contentious Supreme Court. For most of his tenure, the Reagan nominee could count on three conservative votes (one being his own), four liberal, and two swing votes. But to characterize the Rehnquist Court in this way would be an oversimplification. He most often sided with his conservative colleagues, but Rehnquist would often pursue a middle ground for the sake of legal consistency (Rosen 179). For example, while he shared Justice Scalia’s distain for the Court’s position in Miranda v. Arizona, which requires police offices to read suspect’s rights, Chief Justice Rehnquist voted to uphold the 1966 decision. In Dickerson v. United States (2000), Rehnquist observed: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” To this position, Justice Scalia responded vehemently, claiming in his dissenting opinion, “Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance.” In typical fashion, Scalia anchored the conservative minority with his sharp words as Rehnquist sought to uphold the law.
Liberals often lump Rehnquist with the conservative bloc of his Court, while conservatives resist him for never being one of their own, but Rehnquist had an interestingly sensible constitutional philosophy, one that would often push him toward pursuing a pragmatic deference for both principle and law. Of course, he led a Court “that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country”—which generally sides with economic liberals (classic liberals) and against social or cultural conservatives (Rosen 180). Unlike his conservative friends on the Court—e.g. Scalia and Thomas—Rehnquist possessed a strong devotion to preserving tradition and majority rule. But he also held true to federalism and judicial conservatism in those cases that would not require a fundamental shift in well-established legal principles.
In terms of efficiency as Chief Justice, Rehnquist was extremely effective, and he is often revered as one of the most successful of the twentieth century. According to Jeffery Rosen, he “proved to be a master tactician, unlike his inept and pompous predecessor, Warren Burger, who infuriated his colleagues by changing his votes in order to seize the best opinions for himself and then often losing his majorities” (193). An entirely different work could examine the Court’s deficiency in leadership post-1940s, but for the purpose of assessing Roberts’ future, more focus on Rehnquist is necessary. Much like John Marshall, Rehnquist had a unique ability to get along with ideological opponents; he could strongly disagree without being disagreeable. When he first joined the Court in 1972, William O. Douglas, who in Rehnquist saw a younger version of himself, took the young conservative under his wing (Boles 131). Other liberal colleagues saw him as fair and good-natured: Thurgood Marshall referred to Rehnquist as “a great chief justice,” and William Brennan called him “the most all-around successful” chief he had ever known (Rosen 194).
Fellow Justices, even those with whom Rehnquist disagreed, had a particularly favorable attitude toward him, similar in terms used to describe Marshall. In a television interview with Charlie Rose, Rehnquist acknowledged his own ability to deliberate peacefully and get along with strong personalities, which demonstrated a “relatively passive nature,” a “high boiling point,” and a unique ability to compromise (Rosen 194). One of Rehnquist’s former law clerks remembers him as sensitive and kind:
He was very concerned about hurt feelings among the justices, and he was very careful and observant of the way that certain memos or interactions would make other justices react or feel. He always avoided invective in his own memos, and smoothed over hut feelings when other justices used it. (Rosen 194)
Both Marshall and Rehnquist possessed this unique talent and sense of cordiality, but whereas Marshall used his gift to unify the Court and strengthen its authority, Rehnquist only attempted to run a smooth operation and facilitate a comfortable work atmosphere. This disparity between two great Chief Justices is in part due to the times and to the changing nature of the institution.
Also unlike Marshall, Rehnquist favored efficiency over deliberation, and he expected Justices to have studied extensively on the fact of a given case before discussion. One hallmark of Rehnquist’s tenure was his intense organization skill—certioraris would be discussed according to specific guidelines, oral arguments would adhere to schedule, and opinions would be produced quickly. Rehnquist referred to himself, in that same television interview with Rose, as a good Court administrator who ran “a relatively smoothly functioning Court.” In filing briefs with the Court several weeks before an oral argument was scheduled, the parties would be required to follow strict rules as to content and format. In his work on The Supreme Court, Rehnquist describes the criteria prescribed by the Court. In a particular font, on relatively small pages, with indexes listing each case and other authorities cited, the briefs could not exceed fifty pages in length. The petitioner’s briefs would have a blue cover; the respondent’s, red. Amici curiae briefs could not exceed thirty pages in length, and had a green cover. While this may seem entirely formalistic, Rehnquist explains that “the bundle of briefs that a justice pulls out in a particular case may well include eight or ten separate briefs, and it is very handy to be able to identify them by color without having first to read the legends on the cover” (239). In this way, Rehnquist adhered to strict operational criteria to ensure efficient handling of the case in question. Jean Edward Smith compares John Marshall to Ulysses S. Grant—who wore his general’s stars on an army private uniform—for his preference of simplicity and understatement and his keen sense of humility (286). While Rehnquist may have possessed these qualities in some fashion, he resembles Grant in an entirely different way: He led the Court with an almost militaristic efficiency and with high organizational standards.
Presiding over oral arguments, Rehnquist showed the same managerial qualities—highly organized with a strict adherence to rules. For two weeks during the months of October and April, the Court sat on the bench from ten o’clock until noon on Mondays, Tuesdays and Wednesdays. Each day, the Court heard four cases, and in each case, one half hour was allotted to the lawyer arguing each side. Rehnquist sat on the Court for over three decades, two as Chief, and only in complex cases or those of particular importance to the public would he allow lawyers to run overtime. His experience reaffirmed his original view of oral arguments—that a good lawyer should be able to make his argument in on half hour. He held certainly held true to his beliefs as he would often cut lawyers off in midsentence when the red stop light began to flash. While some lawyers questioned his rigidity, Rehnquist’s “clockwork discipline looked appealing in retrospect when Justice John Paul Stevens…let one advocate have extra time and was then compelled to grant an extension to his opponent” (Rosen 81). Rehnquist himself contrasts this approach to extensive format used by the Marshall Court:
If we go back in time to February 4, 1924, to the little courtroom in Washington where the great case of Gibbons v. Ogden is about to be argued to the Court, there are no rules limiting the length of oral arguments and counsel take full advantage of this fact…Five full Court days—four hours each day—were devoted to the arguments of this important case.” (Rehnquist 242).
Whatever the reason, Marshall’s preference for lengthy deliberation at each stage of the judicial process no longer has a place on the Supreme Court. While oral arguments now play a much smaller role in the decision-making process, the arguments brought to the Court sometimes alter the opinions of the Justices—albeit in a minority of cases and to a small degree, as a Justices rarely make full 180 degree turns. But for Rehnquist, even if oral arguments had no effect on the outcome of cases, they still force judges and lawyers to meet and discuss facts and desired outcomes.
When Rehnquist first went on the Court, he possessed a young sense of idealism; he was surprised and disappointed in the level of discussion between Justices on each case. In order of seniority, each Justice would state his views, and when the most junior Justice finally had his chance to express agreement or disagreement, most issues were already on the table, so discussion soon ended. Rehnquist believed in his first years on the Court that it would be far more desirable to have a roundtable discussion on the issues, but by the time he became Chief Justice, he realized that his ideas as a junior Justice would have contributed little or nothing to deliberation and decision. He notes, “Each member of the Court has done such work as he deems necessary to arrive at his own views before coming into conference; it is not a bull session in which off-the-cuff coming into conference, but instead a discussion in which considered views are stated” (Rehnquist 255). Each has access to the same briefs and the same facts as the other. Each has listened to the primary arguments from each side and had a chance to ask clarifying questions. Therefore, each has usually formulated an opinion on the case before arriving in conference. So unlike Marshall, who would attempt to reach a unanimous decision and to construct a single opinion to demonstrate the Court’s solidarity, Rehnquist would not discourage dissent and did not use institutional pressure to change the opinions of his colleagues.
Sharing some time on the Court with William O. Douglas and having had the opportunity to clerk for Robert Jackson while Felix Frankfurter served on the Court, the young Rehnquist had inside looks at the conferences presided over by Chief Justice Charles Evans Hughes and those by Chief Justice Harlan Fiske Stone. According to Frankfurter, Hughes practically “radiated authority”; he prepared extensively for each case and could express his views rather convincingly. Justices would not speak without preparing in similar fashion to avoid being embarrassed by the well-studied Hughes, who encouraged both discipline and restraint (Rehnquist 256). In contrast, when Stone became Chief Justice after Hughes’ resignation, he abandoned his predecessor’s modus operandi, opening up the floor to more discussion. But Stone could not drop his professorly persona: He would start discussion with a statement of his own views, and then he would proceed to open up discussion to the most senior Associate Justice, after which Stone would critique the analysis (Rehnquist 256).
Under Warren Burger, Associate Justices could expect conferences to resemble a melding of the two styles. But when Rehnquist became Chief Justice, he sought to make his opening presentation much shorter than his predecessor’s somewhat lengthy, Stone-like statement of ideas. Rehnquist thought it particularly desirable to give all members of the Court an opportunity to voice their views before any further discussion or cross-examination. So in presiding over conference, Rehnquist fashioned his leadership style somewhat after Hughes but with more openness to reflection by fellow Justices (Rehnquist 256). But he did not believe conference discussion could have much influence on the opinions of his colleagues. Indeed, his years on the Court convinced him that the primary purpose of the conference discussion is “not to persuade one’s colleagues through impassioned advocacy to alter their views, but instead, by hearing each justice express his own views, to determine therefrom the view of the majority of the Court” (258). Having learned this as an Associate Justice, Rehnquist as Chief limited the duration and depth of discussion in his conferences. Openness and efficiency carried the day.
After conference discussion on each case, Rehnquist would indicate what he believed was the position of the Court, and he would allow his Associates to correct any mistake he had made. If in the majority, Rehnquist as Chief Justice had the authority to assign the written opinion; if not, the most senior Associate Justice in the majority chooses. Having been an Associate himself, Rehnquist understood how important each assignment was to each member of the Court, as singed opinions are the only truly visible record of the Justice’s work (260). This is an important responsibility, often used for purposes beyond the mere expression of opinion. At the beginning of each October term, Rehnquist attempts “to be as evenhanded as possible as far as numbers of cases assigned to each justice, but as the term goes on I take into consideration the extent to which the various justices are current in writing and circulating opinions that have previously been assigned” (260). That is to say, Rehnquist possessed a high regard for efficiency and timeliness, and he would often reward his colleagues for being proficient in this respect by conferring more written assignments as the term progressed. On the other hand, if a Justice did not produce his opinions in a timely manner, Rehnquist could punish him by withholding new assignments. Whereas Marshall showed due regard for extensive reflection and exchange of ideas, Rehnquist sought to improve the Court’s efficiency and discipline. Perhaps due to the changing nature of the institution, Marshall-style leadership was for Rehnquist no longer effective or desirable.
John G. Roberts: Nostalgic Idealism?
As quoted in Jeffrey Rosen’s article “Robert’s Rules,” our current Chief Justice recognizes Harlan Fiske Stone as one who lacked chiefly qualities. For Roberts, Stone failed as Chief “because of his misperception of what a Chief Justice is supposed to be” (Rosen 105). Because of the condescending atmosphere in his conference discussions, Stone is considered a failure as Chief Justice, at least from Roberts’ point of view. A successful Chief Justice should, according to Roberts, have a moderated and amicable temperament similar to John Marshall.
In more ways than one, Roberts hopes to model his tenure on the court after John Marshall. That is to say, he ultimately intends to unify the court, and he understands that this can only be achieved by exhibiting a temperament conducive to consensus building. With an underlying sense of aspiration, Roberts characterizes our fourth Chief Justice in common terms as his contemporaries:
He gave everyone the benefit of the doubt; he approached everyone as a friend.…‘This is someone I’m going to like unless proven otherwise…He was convivial, he took great pride in sharing his Madeira with his colleagues…[He was not] the artificial glad-hander type; it was just in his nature to get along with people. I think that had to play an important role in his ability to bring the court together, to change the whole way judicial decisions were arrived at, to really create the notion that we are a Court—not simply an assemblage of individual justices…It was the force of his personality. That lack of pretense, that openness and general trustworthiness, were very important personality traits in Marshall’s success. (Rosen 106).
In what amounts to be a eulogy to John Marshall, Roberts identifies the personal characteristics that make or break the Chief Justice’s tenure on the court. By adopting an overall openness and collegiality, the Chief can build relationships with the other justices that may eventually lead to an open aura of trust, which is the first step toward unanimity.
For a modern day example of how sharp elbows lead to a fractured court, look no further than Justice Antonin Scalia. Roberts recognizes the dangers associated with this type of personality, and he hopes that by, in a sense, resurrecting John Marshall, he can establish the Court once again as an institution that values consensus. For Jeffrey Rosen, “it’s easy when talking to [Roberts] to forget that he is the Chief Justice of the United States,” similar terms used to describe Marshall (105).
Roberts believes that the most successful Chief Justices unify “the nine” under the single voice of the “one supreme court.” Unanimity leads to greater stability in the law and it establishes “constitutional Truth.” On the other hand, a divided court creates the public perception that a decision is not an unbiased interpretation of the law, but that it is just one man’s understanding, subject to personal ideology and motives. In this way, our Chief Justice recognizes the dangers associated with a fractured court: “5-4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics” (Rosen 105). Out of this concern, Roberts discourages the other justices from writing separate opinions because of the effect that this kind of activity has on the Court as an institution.
In a very subtle manner, which can perhaps be attributed to his personality, Roberts tries to promote unanimity by establishing the principle as a “matter of routine,” especially in the less visible cases in which justices will be more likely to accept a unanimous decision for the sake of the Court. In this way, Roberts recognizes that, once a culture is established that strives towards consensus, the justices will be more likely to work towards sources of agreement in larger, more influential cases. Furthermore, the Chief Justice uses his “only power” to assign cases to the “consensus-minded” justice rather than one “who is just dead set on ‘My way or the highway’”—a policy that does not bode well for Scalia and Thomas (Rosen 110). In Roberts’ own words, he would assign opinions to the justice who would be likely to attract the most support with the obvious goal being to unify the Court. In contrast to the Rehnquist court, Roberts would not rush conference sessions to promote efficiency; he would instead allow all necessary discussion of a topic to increase the mutual respect between the justices.
In conference and in his opinions, Roberts tries to “define the principle in question as narrowly as possible” because “people will be less concerned about it” (Rosen 110). Sweeping decisions are commonly rejected because of their widespread implications. On the other hand, a narrow decision only applies to cases like the one in question, and for this reason, justices are more likely to subscribe to these opinions because the effect is immediately apparent and it presumably does not subvert large areas of the law. Using these tactics, Roberts was able to establish a high level of consensus during his very first term. According to Jeffrey Rosen, fifty-four percent of decisions were unanimous, which is well above the Court’s norm in recent decades.
In the article “Our Fractured Supreme Court,” however, Michael W. Schwartz doubts whether John G. Roberts can facilitate this kind of consensus for an extended period of time. Indeed, the chief has “presented his effort to reestablish Supreme Court consensus as an attempt to persuade individual justices to subordinate their individuality to the best interests of the institution,” which seems to suggest that “the question of whether the Court decides cases institutionally of as the sum of nine distinct voices is a matter for the members of the Court themselves to decide” (Schwartz 13). In this way, Schwartz implies that the multiplicity of written opinions has become a normative principle of the contemporary Court just as unanimity was for the Marshall Court. To revert back to a consensus driven mode, suggests the author, is essentially beyond the control of the individual justice—even the Chief—as a new socialization process has become embedded in the institutional fabric of the Court.
Roberts’ vision may be problematic in yet another, more profound way. For Schwartz, “to leave the reinstitution of consensus to the very men and women who have jettisoned it, and who benefit from the regime of self expression” will prove to be a fruitless and futile effort (13). This is really a reflection of the author’s belief that institutional change will only be accomplished by congressional act that restricts the Courts total control over the agenda. But it also states that the nine individual members of the Supreme Court will not abandon a practice that services their personal interests. That is to say, the justices wield a great deal of political power, and every stroke of the pen can have a profound impact on the future of American society. As a Supreme Court justice, the individual can have a very meaningful—perhaps the most consequential in comparison to other institutions—impact on the direction of public policy. When the role of a single justice presented is this way, the current campaign towards institutional consensus is shown in negative light.
As presented by Michael Schwartz, at a recent conference as Pepperdine School of Law, Jeffery Rosen reported that Scalia “snarled sweetly ‘Good Luck’” when asked about Roberts’ nostalgic campaign for consensus (Schwartz 13). Even with Robert’s outspoken advocacy of unanimity, the resurrection of a consensus-minded Court seems unlikely especially given the direction of the Court in recent terms. Indeed, the “ink was hardly dry on a June 12, 2007 New York Sun editorial congratulating the Court on deciding a number of cases unanimously and expressing satisfaction that ‘the nine justices often see their duties to the law in similar ways,’” when a flood of 5-4 decisions came pouring down the steps of the Supreme Court building (Schwartz 13). The relatively high degree of unanimity that Roberts accomplished in his first term on the bench and again in the 2007 term eventually gave way to the normative dynamics that have beset the Court since the early 1940s.
In his article “Inside the Incredible Shrinking Role of the Supreme Court. Why John Roberts is O.K. With That,” Von Drehle explains, the Chief Justice’s “speeches on judicial role suggest a man more interested in the steady retreat of the court from public policy then in a right-wing revolution” (Von Drehle 45). If nothing else, John Roberts views the role of the Supreme Court as limited: it should be primarily concerned with interpreting the laws and should leave the writing of laws to the legislature. Within this proper judicial framework, “working toward broader agreement should be one of the shared aims” of the Justices, said Roberts in a 2006 speech delivered at Georgetown University (Von Drehle 45). The tale of the Roberts court to this date has been one of great disparity between should be and is. Thus far the Chief Justice, while claiming to be concerned with consensus, has been relatively unsuccessful in guiding the court towards unanimity.
Perhaps the makeup of the Court is such that Roberts’ vision is impossible or at least unnecessary. During the early 19th Century, a time when the Supreme Court had a minimal role in American politics, John Marshall sought to promote institutional solidarity to improve the prestige and authority of the Court. When Rehnquist was nominated as Chief Justice, the Court’s role had already been firmly established, and the era of individual expression was well under way. Perhaps unanimity is no longer necessary; Roberts vision, overstated. “Perhaps” is all we can say in these early years of the Roberts Court. One thing is certain: written opinions are the only visible proof of a Justice’s worth throughout the term, so in this sense, Justices benefit from contemporary Court dynamics. To be successful in his pursuit of greater unanimity, Roberts will need to demonstrate to his colleagues the value of unanimity and solidarity. His attempts to reward consensus-minded Justices may produce the desired results, but to facilitate the ascendency of Marshall Court dynamics, the Chief Justice will need to change the Supreme Court culture.
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Novick, Sheldon. Honorable Justice. Rosemount: Laurel Publishing, 1990.
Rehnquist, William H. The Supreme Court. New York: Alfred A. Knopf, 2001.
Rosen, Jeffery. “Rehnquist the Great?” The Atlantic (2005): 79-90.
Rosen, Jeffery. “Robert's Rules.” The Atlantic (2007): 104-113.
Rosen, Jeffery. The Supreme Court. New York: Times Books, 2006.
Schwartz, Michael. “Our Fractured Court.” Policy Reivew (2008): 3-16.
Smith, Jean Edward. John Marshall: Definer of a Nation. New York: Henry Holt and Company, 1996.
Story, William W. Life and Letters of Joseph Story. Boston: Little, Brown, 1851.
Von Drehle, D. “Inside the Incredibly Shrinking Role of the Supreme Court. And Why John Roberts is O.K. With That.” Time (2007): 43-49.
Yarbrough, Tinsley E. Judicial Enigma. New York: Oxford University Press, 1995.
<![if !supportFootnotes]><![endif]> Talbot v. Seeman, 5 U.S. (Cranch 1) 1 (1801).
<![if !supportFootnotes]><![endif]> Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803)