Lessons for John
Roberts: An Analytical Comparison of Marshall and Rehnquist
William Dong
Dr. Jim Riley
Politics Capstone
27 April 2009
CONTENTS
___________________________________
Introduction 3
Unanimity Under
John Marshall 4
Toward Divisiveness: Stone
through Rehnquist 13
John G. Roberts: Nostalgic
Idealism 20
Conclusion 23
Work Cited 25
Introduction:
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)
Whether
or not
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.”[1]
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.”[2]
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.
Conclusion:
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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