Temperament: chances are, you have one. No, it’s not down there. Up a littttttllle higher…there! Stop, that’s it, right there. In fact, it is probably the only thing that keeps you, a lucid, amicable person from becoming a disagreeable douchebag. For a Supreme Court Justice, temperament can make or break a judge’s credibility. Did you realize, for example, that Warren Burger was hated by his colleagues for changing his vote at the last minute in order to write the most important opinions for the Court? Or that Earl Warren personally persuaded the dissenters in Brown v. Board of Education to join the majority’s condemnation of segregation in order to become the unanimous decision that we know today? It should come as no surprise that judicial temperament—a combination of how a judge views the law and how effectively he is able to convince others to adopt a pragmatic solution—is key to building coalitions in a business where five votes can change everything from free speech limitations in wartime to who becomes president.
In his book, The Supreme Court: The Personalities and Rivalries That Defined America, law professor Jeffrey Rosen compared the stories of influential individuals during each of the defining moments in the Court’s history to not only show their outlook towards the law (we generally define this in terms of liberal or conservative), but to what degree they were able to mold their Court around that set of beliefs. It should come as no surprise that the more friendly and persuasive a judge is, he will be able to earn the esteem of colleagues more often than by harsh criticism and unwillingness to consider others’ views. Really, this is true of any job, but when these people are appointed from the ranks of legislatures, lobbying groups, the White House, and lower courts—each with different life experiences, agendas to push, and egos to stroke—coalitions can be valuable.
Take our third Chief Justice, John Marshall, as a case study. Before his tenure on the Court he was a minuteman in Washington’s army during the Valley Forge winter, John Adams’s Secretary of State, and a Federalist representative of Virginia to Congress. Marshall was elected in a primarily Republican district but his personality won over voters and would continue to win over colleagues. He was an unpretentious man who wore black robes to court rather than the customary crimson and who once, as Chief Justice, carried his own turkey through his hometown of Richmond, whereupon he was mistaken for a servant and was tossed a sympathetic coin for his troubles. Marshall insisted that the Justices room together in Washington, D.C., and they would socialize over a box of his Madeira. Starting with the Marbury v. Madison decision of 1803, Marshall sought to expand the power of the federal judiciary to review and deny congressional acts and executive orders that did not accord with the Constitution.
His main rival was Thomas Jefferson, who, aside from being an elite philosophical loner, took very personally Marshall’s affronts against his administration. Jefferson was horrified that, of the three Republican Justices he appointed to the Court, there were only nine dissents between them during their tenures. He urged Congress to impeach Justice Samuel Chase for personal attacks against him. He lauded Marshall’s “twistifications” of the law as the antithesis of majority rule. And he hated that John Marshall issued only one opinion for the entire Court, for the purpose of giving the institution one mighty voice. Jefferson called for the Court to issue opinions seriatim, or separately; which is strange considering that this was the practice of British courts and Jefferson was suspicious of all things British. In the end, the Court came to reflect Marshall’s legal outlook more so than Jefferson’s because Jefferson, known more as a respected philosopher than an accommodating politician (the Declaration of Independence, proposal of secession, the “revolution” of 1800—all were products of Jefferson’s penchant for majority rule) whose personal ideology trumped the legitimacy of the institution.
A similar situation arises with the more recent pairing of Chief Justice William Rehnquist and Antonin Scalia. Scalia is the longstanding punching bag of liberals, the media, and even his own colleagues because of a militantly linear conservative ideology. Furthermore, he, unlike his colleagues, craves media attention and is not shy about making controversial statements in public, including a Sicilian gesture to a reporter that many interpreted as lewd. His dissenting opinions are filled with apocalyptic and accusatory statements toward the majority, complaining that they dictate what “the political branches ought to do.” The more he has hawked his philosophy of original intent the more vulnerable he is to criticism for hypocrisy, such as when he sided against congressional and state prerogative to decide the 2000 presidential election in order to install a Republican president, although in clear opposition to pure conservative ideology.
Rehnquist, by contrast, largely stayed out of the media’s eye except when discussing one of his books. Like Marshall, he was unpretentious and, when attending a judges’ convention in New Orleans, stopped by a Lutheran church to join in the services. When each person had to stand and introduce himself, Rehnquist merely described himself as a “government lawyer.” He was not afraid of moderating his ideology to form consensus and his dissenting opinions showed no anger towards the majority. Although as an associate justice under Warren Burger he was more independent minded and ideologically driven (and still reeling from criticism over a pro-segregation memo), as Chief Justice he built a coalition among the pragmatically-minded on the Court, Stephen Breyer and Sandra Day O’Connor.
Thus it is no surprise that the most effective judges are not the ones who make the most noise, but those who build the strongest coalitions. That is not to say that one must compromise their beliefs, but rather do their best to persuade and convince others to adopt the point of view without being bombastic and apocalyptic.
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