Ask yourself what qualities make for a great Supreme Court justice, and the answers that spring quickly to mind are along the lines of brilliance and consistency and impartiality. (If youre really being honest you might add shares my politics to that list.) But in his most recent book, The Supreme Court: The Personalities and Rivalries That Defined America, Jeffrey Rosen argues for another possibility: temperament. Rosens point is that the Courts most successful juristshe spotlights John Marshall, John Harlan, Hugo Black, and William Rehnquist, and tips his hat to several othershave the same temperamental strengths that one looks for in high-performing kindergarteners. They listen well, are pleasant, and do not whine. They know how and when to go with the flow, and are keenly concerned about the well-being of the group. And they are good sharers: for example, in the early days of the Court, Justice Marshall arranged for the justices to board together, and lubricated their social gatherings with his private stock of Madeira. How nice is that?
But Rosen doesnt stop at arguing that nice justices finish first. As readers of Highlights for Children know well, the character Gallant shines not only because he is good, but because his counterpart, Goofus, is such a jerk. Rosen borrows from this model, sharply contrasting each justice he praises with a Goofus of the same era who may have been a certifiable genius but whose legacy is marred by character shortcomings. Some of the Goofus choices will, at least to nonhistorians, seem surprising and provocative. For example, Rosen casts Thomas Jefferson as John Marshalls aloof and abstracted executive-branch foil, arguing that Jeffersons overcommitment to states rights led him to flail
ineffectively at Marshalls federalizing jurisprudence. And Rosen contrasts the warm and gregarious John Harlan, whose opinions later blazed a path for the civil rights movement, against fellow Civil War veteran Oliver Wendell Holmes. Rosen paints Holmes as a vain and cynical elitist who helped sustain a generation of Jim Crow laws, and who famously authored an opinion permitting the forcible sterilization of a mentally disabled woman, noting that Three generations of imbeciles is enough.
But the book also has considerable shortcomings. For one thing, the Goofus/Gallant comparisons, while fun to read, arent always especially illuminating. In a book about judicial temperament, is it really fair to make invidious comparisons between Chief Justice John Marshall and Thomas Jefferson, whoone almost hates to point this outwasnt a judge? And how useful is it to contrast Hugo Black to his contemporary William O. Douglas? On the one hand, Black was an appealingly principled figure. He kept Truman out of the steel mills, argued that the Bill of Rights should protect individual freedoms against state government action in areas where it had only applied to the federal government, and later in his career tried to restrain certain overreaching excesses of the Warren Court. Opposite him we have Douglas, a brilliant but lazy jurist who wrote sloppy opinions, drank too much, and chased after women who were a fraction of his age. What emerges from this comparison is that we prefer our Supreme Court justices sober, hardworking, and non-lecherous. Who knew?
Rosen also spends the entire last chapter pouring what seems like excessive uncritical adoration on the newly minted chief justice, John Roberts, whom Rosen interviewed at length. Because of his appealing personality and personal thoughtfulness, writes Rosen, its easy when talking to him to forget youre talking to the Chief Justice of the United States. While this is lovely to know, Rosen might have given Roberts a few more years to make his mark before spending twenty pages hinting that he is the Second Coming of John Marshall.
But the bigger problem with this book lies deeper. The Supreme Court appears to be part of a continuing effort by Rosen to help the Court find its way to a constitutional sweet spota mode and style of judging that will enhance the Courts stature and legitimacyby arguing that it should be, in essence, more political. Rosen started down this path in his last book, The Most Democratic Branch, in which he argued that the Courts best and most-respected decisions are ones that align with the deeply held constitutional views of the American people. In saying this, however, he neglected to give a clear sense of how the Court should, as a practical matter, determine these views. Should it follow the political branches? Take its lead from polling data? Or perhaps, on occasion, consult a Magic 8-Ball? In The Supreme Court, Rosen makes something of an effort to fill this hole by suggesting that a lot comes down to the personal instincts of individual justices. Judicial temperament, he argues, influences how and whether the Supreme Court manages to express constitutional values that are recognized by the American people as fundamental or whether it attempts in vain to impose contested values on an unwilling nation.
Rosen is not a strict majoritarian (and indeed he reserves some of his hardest shots for Justice Holmes, who was), but he clearly suggests, both here and elsewhere in his recent work, that things will go better for the Court if it can avoid ticking off big chunks of the country and the political branches of government. That may be right much of the time, and it may also be right that Supreme Court justices who have strong social skills will also be good at minimizing friction between the Court and the political world. But there are situations in which an instinct for comity is not an unalloyed virtue. One of the reasons we prize our independent judiciary is precisely because it can do the right thing even when the political winds are blowing in the opposite direction. While congeniality may have its uses, theres a difference between recognizing that it can help the Court to sail smoothly through its tasks, and suggesting that it should become the Courts defining characteristic. To the extent that Rosen is arguing the former, he comes very close to stating the obvious. To the extent that he is arguing the latter, he flirts with undermining one of the key reasons for the Courts existence. To cast this in terms that Highlights readers will appreciate, Gallant may be an okay guy, but hes not the right fellow for every situation. We ought to think twice before we stack the Court with men and women who dont like to get their clothes dirtyand who may be too quick to walk away from a fight.