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Sunday, September 18, 2005

The Role of Chief Justice

The New York Times
September 18, 2005
The New Boss

If John G. Roberts Jr. is confirmed as William H. Rehnquist's successor on the Supreme Court, the country will have not only a new chief justice but also a new political entity: the Roberts Court. We speak easily of the Rehnquist Court or the Warren Court, managing to identify those complex institutions with a single individual. But how does a chief justice put his stamp on the court?

At a political moment that is as polarized as any in recent memory, many Americans crave a court that, unlike the current White House and Congress, will follow a moderate path, and they are looking anxiously to Roberts's ideology for hints about the court's direction. A chief justice's judicial philosophy is important; but at the end of the day he has only one vote among nine. The most effective tools that a chief justice has at his disposal for shaping a court have less to do with his ideology than with his temperament, which shapes his personal skills as a cajoler, diplomat and unifier - in other words, as a boss for an unusually independent group of prima donnas.

Throughout history, the chief justices who have been best able to preserve the court's reputation and legitimacy have been those with the most judicious dispositions. A chief justice's responsibilities are mostly procedural and organizational; it's his prerogative, when he is in the majority, to write the opinion for the court or to assign the opinion to a justice he believes will reflect his legal views, as part of his broader efforts to build consensus behind the scenes. John Marshall, who served from 1801 to 1835 and is widely considered the greatest chief justice in American history, was especially deft in exercising these powers. Marshall took office without judicial experience (in fact, 11 of the 16 chief justices have been appointed to the court without previously serving on it as associate justices), but like John Roberts, he had a reputation for an ability to argue both sides of an issue, for his bipartisan friendships and, above all, for a lack of pretense and a good nature. ("I love his laugh - it is too hearty for an intriguer," wrote his friend and colleague Joseph Story.)

Marshall's skill in establishing convivial personal relations among his fellow justices helped him to cement the court's authority at a vulnerable moment in its early history. Recognizing the virtues of leading with a light touch, Marshall wore a simple black robe rather than the scarlet and ermine that were traditional at the time. And he insisted that his colleagues room together in the same boarding house, so that they could discuss cases over glasses of his excellent Madeira. As a result of his sensitivity to the views of his political antagonists (with the notable exception of Thomas Jefferson, whom he detested), Marshall was able to steer the court toward a middle ground and to speak for a unanimous court on the most divisive issues of his age.

If Marshall's modesty and geniality made him the prototype of the successful chief justice, his successor, Roger Taney, became the anti-type. Though an able lawyer, Taney was shy, frail and reticent where Marshall was gregarious, and he preferred to lead through indirection and behind-the-scenes intrigue rather than by cultivating sociable companionship. He was stubborn and had an inflated sense of judicial power, qualities reflected in the infamous and widely reviled Dred Scott opinion, in which he ruled that Congress had no power to ban slavery in federal territories. In a later case, after plausibly holding that Abraham Lincoln could not suspend habeas corpus without Congress's approval, he went out of his way to mock the president, circulating his opinion as widely as possible to embarrass the administration. Under Taney, the justices stopped boarding together, and the collegial and unanimous court fragmented.

Another unsuccessful chief justice was Rehnquist's predecessor, Warren Burger, who fancied himself a political statesman but was not smart enough to win the respect of his colleagues. His insecurity, vanity and pomposity were openly ridiculed by liberal and conservative justices alike (including, apparently, Rehnquist and a law clerk of his at the time, John Roberts). And his habit of changing his vote at the last minute in order to ensure that, as the senior justice in the majority, he could write the most important opinions for himself so infuriated his colleagues that some of them eventually vented their frustrations to the journalist Bob Woodward. The best-selling book that resulted, "The Brethren," exposed Burger and the court to public ridicule.

The most successful chief justices, in short, are modest, likable, efficient, capable of strategic compromise and at least as smart as their colleagues. Rehnquist had these qualities in abundance, which is why even liberal colleagues like William Brennan and Ruth Bader Ginsburg praised him as the best boss they ever had. Does Roberts have what it takes to preserve the court's collegiality and, by extension, its relative moderation? By all accounts, he is self-effacing, funny, affable and extremely intelligent. He has a knack for considering both sides of an argument and for getting along with people on both sides of the political spectrum. The one aspect of Roberts's personality that is hard to discern from the sometimes acerbic memos he wrote as a young Reagan administration official is his capacity for moderation, pragmatism and flexibility. Does he have the ability to temper his own conservative views in order to win majorities and persuade his colleagues to find principled compromises, when necessary, for the good of the court and the country? That's a skill that will be determined by his temperament, more than his ideology, and the success of the Roberts Court will depend on it.

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine.

* Copyright 2005 The New York Times Company