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?
Some publicity of course is unavoidable. There are no cameras in federal courtrooms, but if Chief Justice Rehnquist gets so exasperated at Scalia’s interruption of other justices’ questions that he shakes his finger at him, then members of the public who are in the chamber can see that and tell everyone else. Equally, if Justice Scalia directs a dissenting opinion against what he thinks is a disingenuous legal position adopted by one of his fellow judges, we may not know how much it hurts, but we can tell from the page that it is vitriolic.
The other time we get to see the justices on public display is of course at their nomination and at confirmation hearings. The heart of Greenburg’s book is her account of the nomination process. For Roberts and Alito, she tells it very much from the nominee’s point of view: the rushed return from European vacations, the waiting for phone calls, the checking into hotels under false names provided by the White House, the isolation of indiscreet members of the family, the determination not to be disappointed if an anticipated nomination does not materialize. She is at her best in her account of the fiasco of the Harriet Miers nomination. Two things stand out here. One is how disgracefully ill-prepared Miers was to take on the role of responsibility for the Constitution of the United States. She had not been a judge, she had no experience in constitutional litigation, and though all sorts of experts were rolled out to coach her in the finer points of constitutional law that she would be expected to talk about at her confirmation hearings, it proved to be impossible. “It was like teaching someone French in three weeks and then expecting her to pass a fluency exam.”
The other is a story about assurances the White House gave that, with Miers’s nomination, the right wing would not once again be burned by a conservative who turned out to be a liberal. Grassroots conservatives were told that their fears were groundless. The nominee was a devout Christian and Texans like Bush and Miers valued loyalty and courage above all. “If she ruled in ways contrary to the way the president wanted her to rule, it would be a deep betrayal.” But those assurances only served to enrage the conservative constituency:
Judicial conservatives were offended by the suggestion that Miers’s religious views or personal loyalty to Bush would cause her to vote the “right” way on the Court. That was the kind of result-oriented approach they’d accused liberals of practicing. They believed true judicial conservatives…looked to the Constitution and its words instead of relying on personal views or feelings that there was a “right” way to vote in a case.
One need not agree with the philosophy of judicial conservatism to see at least some honor in this discomfort.
This brings us back to Rosen’s propositions about temperament. I said that the worry about his view is that it downplays exactly the features that seem to distinguish courts from other political institutions: adherence to principle and a steady focus on the law. Obviously there is something in what Rosen says. The Supreme Court is a collegial institution and justices of different personalities and ideologies have to get along well enough to transact its business. Not only that, but sometimes it is going to be impossible for an individual justice to do anything for the principles that he thinks his role commits him to without some sense of strategy.
On April 2, the Supreme Court announced its refusal to hear habeas corpus applications from detainees at Guantánamo Bay.9 There was a strong dissent from Justices Breyer, Souter, and Ginsburg, but Justice John Paul Stevens, the Court’s leading liberal, did not join it. Instead he joined a separate opinion with Justice Kennedy, saying that before turning to the writ of habeas corpus, the Court should wait until existing procedures were exhausted under the 2006 Military Commissions Act. Apparently Stevens did not want to see the Court split into two hard-line camps at this stage, in a way that would make it difficult for Kennedy to join a later opinion upholding the rights of detainees once proceedings before the military commissions were completed. Linda Greenhouse of The New York Times made the observation that
Justice Stevens, who will turn 87 later this month, is…a strategic and canny inside player who knew that providing a fourth vote to hear the cases without assurance of Justice Kennedy’s position risked putting them on track to the wrong destination.10
Still one feels uneasy about the strategy: maybe the Guantánamo petitioners are entitled to expect that any justice who thinks they have a right to a hearing at this stage should stand up now and say so, even if he is in a 4–5 minority and even if this does damage the prospects for striking down the legislation at some later date. After all, it is their liberty that’s at stake: for them, Stevens’s compromise (if that’s what it is) is measured in months or years of further incarceration, not in anything the justice has to lose. But one can see the other side, too. There is no prospect for a successful habeas petition at this stage; the only hope for ever vindicating the petitioners’ rights is for Stevens to reach a deal for the time being with Kennedy.
My problem with Rosen’s book is that he never really explores both sides of this issue. He assumes that the virtues of the politician, the strategic player, and the pragmatic deal-maker are what we want in the courtroom and that it is practically always a mistake for a justice of the Supreme Court to think of himself as bound by rigid principles in reaching his decisions.
Would it be desirable, then, for justices to engage in log-rolling, in the sense of agreeing to vote against what they believed to be the clear rights of petitioners in one case in order to maximize the chances of forming a majority to uphold the rights of a different set of petitioners in another case? That’s what legislators are reputed to do: I’ll vote for your bill (which I actually oppose) if you’ll vote for my bill (which you oppose). It is hard to tell whether Rosen thinks it would be wrong for judges to reach similar bargains. He certainly criticizes Justice Scalia for insisting rigidly in one case on a reading of the Constitution that is dictated by what Scalia takes to be the only legitimate principles of interpretation at the cost of alienating other justices who might have formed a coalition with him in another case. That sounds a bit like criticizing him for refusing to engage log-rolling. And he condemns as “legalistic” Justice Scalia’s uncompromising insistence in one of the 2004 Guantánamo cases that unless Congress has suspended habeas corpus, any American citizen held as a terrorist suspect must be tried as a criminal or released.11 A pragmatist, one infers, a man of judicial temperament, would not make such a fuss about these rights.
I suspect Rosen thinks it is undesirable—inappropriate for the judicial temperament—if the individual justices actually have strong principles about the rights they are adjudicating, or about the antiquated document they are interpreting, or about the proper role of a judge in a democracy. If a judge thinks through these issues in advance and commits himself to one approach or another as a matter of principle—this is a way of making one’s judging rigid and ideological. Maybe there is something to be said for just muddling through from case to case without a defined theory; certainly a justice who takes that approach will never be a loner; he will never lack for colleagues coming in and out of his chambers.
I don’t altogether want to lampoon this possibility or underestimate the difficulty of arriving at principled positions on these matters. Figuring out the proper role of a judge in a democracy, figuring out how to read a document drafted in 1787 in relation (say) to the exigencies of the war on terrorism in 2007, figuring out how to maintain a steady commitment to individual rights when common sense tells us that some rights just do have to be compromised—these are among the toughest tasks in the study and practice of law. And even when you have figured it out, you have to be aware that your colleagues—reasonable men and women like you—have come up with different principles, different ways of approaching these assignments. They think your principles are as wrongheaded as you think theirs are; and you can’t both be right. It simply isn’t clear what is required or permitted in the way of principled compromise in these circumstances.
Still, there are good reasons for insisting that a justice must have principles and stick to them. The assignments I mentioned—figuring out what rights individuals have, figuring out the proper role of a judge in a democracy, figuring out how it is appropriate now to interpret a document from 1787—are posed against the background of a certain standing danger. Judges like anyone else have their own moral and political views about the matters that come before them. As a citizen, a judge is Republican or Democrat, liberal or conservative, security-minded or liberty-minded, a Bush supporter or an opponent. We work on the assumption that it is wrong for a judge to decide cases simply on the basis of his or her political views. It happens of course, but we want to prevent it. The principles I have been talking about are supposed to be ways of disciplining oneself in this regard. One figures out a way of interpreting the Constitution precisely so that one’s decision in a particular case is not simply at the mercy of one’s political instincts. And the trouble with repudiating all such principles as “legalistic,” the problem with allowing justices to pursue whatever compromises and strategies seem sensible, is that it seems to undermine this discipline.
It does not follow from this that the conservatives are right in their originalist approach to the Constitution or in their philosophy of judicial restraint. Liberals should have principles too, in this account—principles that explain, for example, why they are required to stick up for certain rights even when it seems impolitic to do so. Rosen criticizes Scalia’s ideological rigidity, and for all I have said he may be right if he means that Scalia’s originalism is misconceived as an approach to interpretation. But that is the level at which Justice Scalia should be criticized—for having the wrong principles, not for having a temperament that commits him to principles above all.
Many people around the world and some people in the United States believe it is a bad thing for courts to have the power that they have in our system.12 They believe that hard political decisions (about issues like abortion) should be made in legislatures, by people elected for that purpose and regularly accountable to their constituents. They worry that by allowing nine unelected justices to decide momentous issues for them, there is a danger that, in the words of Abraham Lincoln, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”13
Any discussion of how the justices of the Supreme Court should deal with one another must assume that this argument can be answered. Personally I am not convinced that it can. But the best hope for an answer is that our political system needs an institution of a special sort, an institution that comports itself quite differently from the more democratic branches of government, an institution whose members bind themselves to the mast of principle to ensure that individual rights and other constitutional considerations are given their proper due. If there is anything in that response, then we should link our account of appropriate judicial temperament specifically to the idea of acting on principle, rather than drawing it from a more generalized sense of what makes a person an effective and congenial politician.
May 10, 2007
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992). ↩
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). ↩
Christopher E. Smith, Justice Antonin Scalia and the Supreme Court’s Conservative Moment (Praeger, 1993), pp. 98–100. ↩
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. ↩
“Forum of principle” is Ronald Dworkin’s phrase from A Matter of Principle (Harvard University Press, 1985), p. 33. ↩
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. ↩
Montesquieu, The Spirit of the Laws (1748), edited by Anne M. Cohler et al. (Cambridge University Press, 1989), Book 11, p. 158. ↩
Contempt of Court Act 1981 (UK), section 8. ↩
Boumediene et al. v. Bush (06-1195), April 2, 2007. ↩
Linda Greenhouse, “Supreme Court Denies Guantánamo Appeal,” The New York Times, April 3, 2007. ↩
Hamdi v. Rumsfeld 542 US 507, 554-79 (2004). ↩
These skeptics include the present writer: see Jeremy Waldron, “The Core of the Case Against Judicial Review, The Yale Law Journal, Vol. 115, No. 6 (April 2006). See also Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999) and Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004). ↩
Abraham Lincoln, “First Inaugural Address” (1861). ↩