“Ask the Author” with Jeff Rosen: Part 2

This is part 2 of our discussion with Professor Jeff Rosen about his new book, The Supreme Court: The Personalities and Rivalries That Defined America (part 1 is here). The book is the companion volume to the PBS special “The Supreme Court” which premieres this Wednesday, January 31 at 9 PM eastern.

Unlike former Chief Justice Rehnquist, the new chief seems to be much more willing to make public appearances and eager to educate the citizenry about the workings of the Court and of the judiciary; in fact, many of the justices have been appearing in the media with unprecedented frequency. Do you see this as a positive development or a negative one? I ask because you make the case that part of having a judicial temperament involves a complete unwillingness to air the Court’s laundry in public, so to speak, and to subvert one’s own ego for the good of the institution. Is it even possible to maintain a judicial temperament but still write books and appear on late night news shows?

Obviously, I’m delighted that the Chief talked to me and to the PBS series, but I don’t think he should talk to everyone! This isn’t only self-interest: judicial exposure is a delicate balance. As justices increasingly venture out in public, they can certainly enhance understanding of the Court, as I think Roberts did in those illuminating interviews. At the same time, they have to be careful not to promote themselves rather than the institution, and to behave more like pundits than members of a collegial Court. This is why some judicial memoirs are more successful than others: John Marshall’s endearingly modest Autobiographical Fragment (which begins: ”The events of my life are too unimportant . . . to render them worth communicating or preserving”) served him much better than William O. Douglas’s jaw-droppingly indiscreet polemic, where he attacks his colleagues and spouts off on all the political controversies of the day. Similarly, too many appearances on news shows or in the news cycle strike me as risky: when justices are overexposed, they can undermine their authority, as the backlash against some of Justice Scalia’s extracurricular opining suggests. But we’re at the beginning of a sea change in the norms about how much judicial exposure is appropriate and sensible. Some justices will pull off this complicated balancing act much more deftly than others, and their ability to do so will turn, in the end, on their judicial temperaments.

Throughout your book, your view is that many people whose personalities were more academic or philosophical were not able to profoundly influence the direction the law – Jefferson, Holmes, Frankfurter, and Scalia come to mind – but those justices who were first politicians or practicing lawyers turn out to have had a much more lasting influence on the shape of the Court’s jurisprudence. As a law professor yourself, what do you make of this development? In your opinion, does it bode well for the future of the Court that neither of the two new justices spent any extended time in academia? Were there any legal academics who turned out to be exemplary justices?

It was only after reading judicial biographies that I came to realize how few of the most successful justices have been law professors. Like most law students, I was trained to value academic ability and philosophical consistency above everything, and when I started off in journalism, I remember confidently denouncing President Clinton for not appointing more smart law professors to the bench, as President Reagan had done. I’ve come to believe those screeds were wrong: on the Supreme Court, at least, there seems to be almost an inverse relation between academic brilliance and judicial success. Are there any exceptions? One of my judicial heroes, the first Justice Harlan, taught night classes at G.W. Law School. He enjoyed it even more than being a justice, and the students loved him, because he hammed it up and put on a show, as all good teachers should. But Justice Harlan wasn’t a legal scholar. Among the former academics on the current Court, I’m a great fan of Justices Breyer and Ginsburg. But their success reflects their temperaments more than their scholarly backgrounds: in different ways, both are willing to sublimate their own academic ideas about law when they think the good of the Court requires it.

In each era that you discuss in the book, you lay out a few key areas of the law where the most important legal questions needed to be answered and how those justices with judicial temperaments were the ones who ended up having the most influence on how those legal questions were resolved. What do you see as the key legal issues of the nascent Roberts Court, and which justices will use their superior temperaments to win the impending legal battles?

No special insights here: the biggest challenges are obvious to all of us. The abortion and race cases this year will sorely test the Chief’s stated goal of convincing both sides on a polarized Court to converge around a common outcome. It’s not hard to imagine deft compromises in both sets of cases that would give nominal victories to both sides, in the spirit of John Marshall’s “twistifications.” But whether Roberts will be able to convince his colleagues to go along remains to be seen. (Scalia has responded to Roberts’s vision with the equivalent of “Good luck.”) During our interview, Roberts quoted Hughes’s observation that “Marshall’s preeminence was due to the fact that he was John Marshall.” If Roberts succeeds, it will be due to the fact that he is John Roberts. But even if he fails this term, there are many years ahead. Over the long term, moderate minded citizens in both parties should be rooting for him.