Bench Memos

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The Consensus Thing


The new Atlantic Monthly carries a long article by Jeffrey Rosen based on a July interview with Chief Justice John Roberts.  Rosen’s true calling, I think, is as a journalist, not as a scholar of the Court or the Constitution (see here for my review of his last book).  The article constructs a highly interesting portrait of the chief justice, who seems to have been quite at his ease with his interlocutor.  There are moments when one is entitled to suspect that Rosen is imputing to his subject certain thoughts that are his, Rosen’s, and not those of Roberts—as, for instance, when Rosen several times suggests that Roberts is critical of justices with “ideological agendas” but cannot manage to capture that phrase within quotation marks as one the chief himself uses.

Nevertheless, if read carefully, the article still provides enough evidently accurate information about Roberts’ views to make one . . . worry about the new chief justice’s priorities.  The central theme of Roberts’ unburdening of himself to Jeffrey Rosen seems to be that the Supreme Court needs to act more as a court, with one voice, rather than as “simply an assemblage of individual justices.”  Multiple concurrences and dissents, fragmented opinions and crisscrossing coalitions—these trouble the chief justice, who wishes the Court were more like it was in John Marshall’s day, when unanimity was the norm and discord the aberration.

Now it is the most normal thing in the world for a new chief justice to set himself the goal of uniting the disparate voices of the justices into a unified chorus.  Persuasion, the framing of issues, the strategic assignment of opinion-writing, and the tactical joining of others’ opinions, are the only real tools that a chief justice has to be, well, chief among equals.  The rest of the duties that come with the title are merely bureaucratic, supervising the scut work of running the Court as an architectural and administrative institution, not as a judicial one.  So naturally every chief yearns to be a uniter overcoming the dividers.

Roberts understands that unity isn’t and can’t be an end in itself.  But this interview gives no indication that he thinks about the proper end toward which the Court’s unity is a means.  A fractured court, with too many lone rangers among the justices and too much discord, is “going to lose its credibility and legitimacy as an institution,” says Roberts.  This too is worth worrying about, and from the standpoint of the framers is likewise a natural concern; they expected that any officeholder would identify his own interest with the vitality and strength of the institution in which he served.

But there is a still higher end, served by the Court’s “credibility and legitimacy,” and that is the integrity of the Constitution.  If consensus among the justices contributes to public confidence in the Court as an institution, which in turn strengthens the Court’s capacity to make, and persuasively to explain, sound constitutional and legal decisions, then so much the better.  That would be the best of all possible worlds—and in Marshall’s day, the nearest thing existed to that best of all possible worlds.  In an era in which contention over constitutional issues was as rancorous as it is today, Marshall’s success at unifying his Court helped to strengthen its ability to hand down decisions that were for the most part widely accepted, and which outlasted their critics.  But the crucial point is that this was all in the service of sound constitutional law—correct decisions, to put it bluntly.  (For something still more blunt—and downright unfashionable—try this: you could never go wrong agreeing with John Marshall about the meaning of the Constitution.  That, and not any of his other considerable gifts of conviviality, was the true key to his success.  It was certainly not owing, as Rosen claims, to his choosing “not to press his philosophy in cases he knew he couldn’t win.”  I doubt Rosen could name a single instance of such a case.)

What is worrisome about Chief Justice Roberts is that he may, on the evidence of this article, be willing to sacrifice the Constitution’s integrity to the will-o-the-wisp of the Court’s reputation.  And he gives no sign of knowing that the real cause of any loss of “legitimacy” the Court has suffered in recent decades is not that it has handed down too many divided decisions featuring the preenings of prima donna justices.  It is that the Court has been playing ducks and drakes with the Constitution, and expanding its power illegitimately at the expense of other institutions.  John Marshall, who never pushed his Court to grasp more power than it was entitled to, would have understood the problem perfectly.  Thing one, he knew, is to get right with the Constitution.  The rest will fall into place of its own accord.

Tags: Franck


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