• Email
  • Single Page
  • Print

Temperamental Justice

Do we have Justice Antonin Scalia to thank for the fact that Roe v. Wade was not overturned in 1992? For a while, in the run-up to the decision in Planned Parenthood v. Casey1—a decision upholding Roe v. Wade—it had seemed as though there were six votes on the Supreme Court for saying that the central holding of Roe was wrong and that women did not have a constitutional right to abortion. Scalia himself, Chief Justice William Rehnquist, Justice Clarence Thomas, and Justice Byron White clearly thought this. It appeared that Anthony Kennedy and Sandra Day O’Connor also shared this view, both having expressed reservations about Roe in earlier cases.2 Indeed at one stage there might even have been seven votes. During David Souter’s confirmation hearings, pro-choice advocates held up placards saying “Stop Souter or women will die,” so strong an impression did he give of being skeptical about abortion rights. But Souter quickly confounded the hopes of the constitutional conservatives. By 1992, it was just the votes of Kennedy and O’Connor they thought they could secure.

But that was until Justice Scalia ruined everything. “Some scholars,” says Jeffrey Rosen, “argued that Scalia’s relentless personal attacks on O’Connor and Kennedy dissuaded them from overturning Roe v. Wade.” An endnote in Rosen’s book reveals that “some scholars” is Christopher E. Smith, who teaches in the School of Criminal Justice at Michigan State University. Smith had this to say about the failure of the conservatives to secure O’Connor’s and Kennedy’s support in Casey:

Kennedy switched positions only after Justice Scalia attacked his conservative allies for not being forthright in their actions and after Scalia openly advocated immediate reversal for the sake of his vision of the Court’s role in the governing system…. Their attempt to encourage O’Connor to join their efforts to overturn Roe was hampered, if not torpedoed, by Scalia’s decision to make O’Connor the focus of sustained personal attacks and public derision in his Webster concurring opinion…. O’Connor was not likely to feel persuaded to adopt Scalia’s viewpoints when his means of convincing her was to implicitly accuse her…of hypocrisy, disingenuousness, and cowardice…. By forcing the issue in a strident and personal way, Scalia pushed his colleagues away by offending them.3

Rosen does not say explicitly that he accepts Smith’s account. But he gives the impression that he thinks it is correct and it is grist to the mill of the thesis of his new book: that judicial temperament is all-important and that Justice Scalia is seriously deficient in this regard.

Rosen’s portrait of Justice Scalia is very unflattering, in my opinion scurrilously so. He tells us that Scalia is “an intellectual pit bull who is more concerned with ideological purity than building coalitions,” and “more interested in stirring up controversy outside the Court than building coalitions inside of it.” He is a “maverick and a loner.” He has “no volume knob.” “By repeatedly inserting his own personality into the public debate, he call[s] his impartiality into question.” Rosen acknowledges that the justice has a formidable intellect, but he harps on what he calls Scalia’s “know-it-all performances.” Worst of all, Scalia is just not pragmatic enough. He’s a bad politician; he doesn’t know how to make a deal or hold a coalition together. His opinions are not only rigidly principled, they are “legalistic.” No worse condemnation of a judge can be imagined, in Rosen’s book.

Rosen contrasts Scalia, in all these regards, with the late Chief Justice William Rehnquist, as well as with the present chief justice, John Roberts (for whom Rosen appears to have high regard). People predicted at the beginning of his tenure that Rehnquist would be the ideologically motivated loner that Scalia turned out to be. But in fact Rehnquist “was never a doctrinaire conservative”; he was a “master tactician” with “a knack for getting along with his ideological opponents.” Rosen feels it necessary to tell us also that Rehnquist was a quiet Lutheran who rented movies, not a vociferous Catholic who thinks America is going to hell in the culture wars. (In an egregiously silly aside, he quotes another commentator as saying that Justice Scalia’s originalism is a version of the way pre-Vatican II Catholics approached the Latin Mass.4 ) The net result is that although Scalia and Rehnquist had similar ideological commitments, Rehnquist was able to do more on the Court for his vision of conservatism than Scalia has done for his. Scalia is “happiest in the martyr’s role of principled defeat,” whereas in Rosen’s view a judge is more influential and effective the more willing he is to “moderate the appreciation of his principles in the name of the broader good of the Court and the country.”

The contrast between Scalia and Rehnquist is the last of four contrasts that Rosen pursues in his book between judges with judicial temperament and those who for some reason lacked it. The other pairs are Hugo Black (judicial temperament) and William Douglas (intelligent but “self-destructive”), John Harlan (judicial temperament) and Oliver Wendell Holmes Jr. (brilliant and self-promoting), and John Marshall (judicial temperament) and Thomas Jefferson (remote, impractical, and intellectually intense). The fact that Thomas Jefferson was never a judge poses a slight difficulty for the architecture of Rosen’s book, but, undeterred, he tells us that Jefferson with his radical defense of majority rule squandered the opportunity to have a formative influence on this counter-majoritarian institution.

The conceit probably works better on TV than in a book: The Supreme Court is a companion volume to a recent PBS series. It is never quite clear what exactly Rosen means by judicial temperament. (He sometimes substitutes the phrase “judicious temperament,” without any explanation.) The judicial vices that he charts are heterogeneous. Jefferson was too abstract in his thinking and took ideas to an extreme. Harlan Fiske Stone behaved at conferences like the John Houseman character in The Paper Chase, calling on his fellow judges like a law professor. William Douglas was a womanizer and wrote an article for a pornographic magazine. Oliver Wendell Holmes “fretted that he was not as celebrated and fawned over as he thought he should be.”

If anything emerges in the way of definition it is that judicial temperament involves a willingness to think strategically rather than rigidly and a readiness to compromise, not to insist always on one’s own position as a matter of principle. It involves “humility and common sense, and the ability to interact well in groups.” These virtues have proved to be more effective, Rosen says, than academic brilliance or philosophical consistency. (When he commends the virtues of judicial temperament, Rosen sometimes gives them a disturbingly self-serving gloss: justices who moderate their principles are likely to do better for themselves, for their own influence and reputation, in the long run.)

Rosen writes as though all this were self-evident, as though it were obvious that consistent adherence to principle should be condemned in a judge as an unpleasant form of “legalism.” But one only has to state that view in order to see that the matter surely bears a little more discussion than this.

We already have institutions in our political life that are characterized by compromises, deals, log-rolling, and strategic thinking as their normal mode of operation. Don’t we value the power of the judiciary (if we do) because it operates differently from a legislature? Don’t we value it precisely as a forum of principle?5 Do we really want Supreme Court justices to compromise their constitutional principles in order to enhance their personal effectiveness and their popularity among their colleagues? Isn’t legalism and holding fast to consistent principles, come what may, what we do want from our judges, even if that strikes a hardened observer as a justice “playing the martyr”?

One initial response might be to ask whether it is better for us not to know what goes on among the justices behind the scenes—who annoys whom, how majorities are manufactured, what happens when they knock on one another’s doors. When Edward Lazarus, a former clerk for Harry Blackmun, published a behind-the-scenes exposé of the Court’s decision-making in 1998, many felt that a sacred trust was violated,6 and we might feel the same, if not about Rosen’s book (whose material, as we have seen, comes mostly at third- or fourth-hand), then perhaps about Supreme Conflict, Jan Crawford Greenburg’s study of the struggles within the Court over the last two or three decades. Greenburg’s account is based on extensive background interviews with nine of the eleven justices who served on the Court in the period she has studied (roughly 1986–2006), most of whom continue to serve today. More than any other recent writer on the Court, she seems to have mastered the arts of Kremlinology that are necessary to appreciate what goes on in this secretive institution.

Supreme Conflict is fascinating to read. Greenburg’s theme is the disappointment of the constitutional conservatives in the early 1990s, and what now appears to be their triumph with the appointment of Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006. She too seems to be a believer in the virtues of judicial compromise; her expectation that the Roberts Court will be more effective for conservatives rests on the knowledge that Roberts and Alito are “collegial and savvy.” They know how to hold a coalition together. “They both have an abundance of people skills and political instincts that can help keep moderate Kennedy in check.” But Greenburg has the good grace to present this as a political desideratum—“This White House wanted justices who could build alliances and working majorities”—not as the distinctive virtue of a judge.

I think she also gives a more evenhanded account of the events that Rosen describes. Though Greenburg says that Scalia is known as “the Court’s preeminent master at the art of burning bridges,” she doesn’t flatter him with responsibility for Justice Kennedy’s change of heart in Planned Parenthood v. Casey. The Kennedy she describes is perfectly capable of changing his position on an issue like abortion under the influence of his own restless intellect. The issue is hard—we all know that—and it is evident that he was tormented to the last minute by difficulties and uncertainties in the constitutional positions on both sides, much more than by any annoyance that came from the Scalia chambers.

Still one wants to ask: How much of this do we need to know? The portrayal of a vacillating Kennedy, a Kennedy given to what Rosen describes as “theatrical displays of indecision,” a Kennedy who compared himself to Caesar crossing the Rubicon, who said he needed a moment “to brood” before going downstairs to join the plurality opinion in Casey, a Kennedy whose clerks sang him the theme song from Flipper at their annual skit—I suppose all this casts some human light on the pressures that the tasks of a Supreme Court justice impose on the flesh-and-blood men and women who actually wear the robes. We have a longstanding fantasy that we are ruled by laws, not by men. Maybe one way of sustaining it would be to follow Montesquieu’s suggestion that the power of judging, “so terrible among men,” should be as far as possible “invisible and null.”7 Faceless, anonymous, and without personality, the judge would be simply a spokesman for the law, the law incarnate. (The English do this with their juries. Legislation there makes it a criminal offense to solicit or disclose any information about what was said in the “sanctity of the jury room.”8 I remember how horrified I was when I came to the US and saw jurors being interviewed on TV about their deliberations in a case.) Lamentations 1:8 says of ruined Jerusalem, “All that honoured her despise her, because they have seen her nakedness.” Is this true of the Court—when we expose its naked human functioning, the personalities, the bickering, and the hurt feelings, do we diminish the honor in which the rule of law is held?

  1. 1

    Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992).

  2. 2

    Justice O’Connor in City of Akron v. Akron Center for Reproductive Health, Inc. 462 US 416 (1983) and Thornburgh v. American College of Obstetricians 476 US 747 (1985), and both justices in joining an ambivalent opinion of Chief Justice Rehnquist’s in Webster v. Reproductive Health Services, 492 US 490 (1989).

  3. 3

    Christopher E. Smith, Justice Antonin Scalia and the Supreme Court’s Conservative Moment (Praeger, 1993), pp. 98–100.

  4. 4

    George Kannar, “The Constitutional Catechism of Antonin Scalia,” The Yale Law Journal Vol. 99, No. 6 (April 1990), p. 1314. Kannar in turn cited Garry Wills, Bare Ruined Choirs: Doubt, Prophecy, and Radical Religion (Doubleday, 1972) for the general form of this observation.

  5. 5

    Forum of principle” is Ronald Dworkin’s phrase from A Matter of Principle (Harvard University Press, 1985), p. 33.

  6. 6

    Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Random House, 1998). The same was said of an earlier exposé by Bob Woodward and Scott Armstrong in The Brethren: Inside the Supreme Court (Simon and Schuster, 1979), though neither of them had been a Supreme Court clerk.

  7. 7

    Montesquieu, The Spirit of the Laws (1748), edited by Anne M. Cohler et al. (Cambridge University Press, 1989), Book 11, p. 158.

  8. 8

    Contempt of Court Act 1981 (UK), section 8.

  • Email
  • Single Page
  • Print