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Law, Power & Personality
by Jeffrey Rosen

In an age of tell-all memoirs, the Supreme Court remains the last institution of government to sustain a sense of mystery. Everything about the Court's majestic rituals -- from the marble palace it inhabits to the black robes worn by the justices -- is designed to minimize the human element and to convey the impression that the Court's opinions are the impersonal pronouncements of Delphic oracles. But this ideal, of course, is something of a myth. The Court is and has always been a deeply human institution where quirks of personality and temperament can mean as much as ideology in shaping the law. In an interview for THE SUPREME COURT, the companion book to the PBS series, Chief Justice John Roberts offered one of the best definitions of judicial temperament, which he said involves a judge's willingness to "factor in the Court's institutional role," to suppress his or her ideological agenda or desire for personal attention in the interest of achieving consensus and stability. "It's the difference between being a judge and being a law professor," Roberts said.

Judicial temperament is especially important for chief justices because of the unique demands of the job. The chief, like his colleagues, has only one vote. It is his prerogative when he is in the majority, however, to write the opinion for the Court himself or to assign it to the justice he thinks will best reflect his views and attract votes from his colleagues, as part of his broader effort to build consensus behind the scenes. Chief Justice John Marshall was especially deft at exercising these powers, and his skill in establishing convivial personal relations among his fellow justices helped him to cement the Court's institutional authority. Recognizing the virtues of leading with a light touch, Marshall wore a simple black robe rather than the traditional scarlet and ermine. He insisted that his colleagues room together in the same boardinghouse, so they could discuss cases over glasses of his excellent Madeira. As a result of his appealing personality and sensitivity to the views of his political antagonists (with the exception of Thomas Jefferson), Marshall was able to speak for a unanimous Court on the most divisive issues of the day.

'Those in power need checks and restraints lest they come to identify the common good for their own tastes and desires, and their continuation in office as essential to the preservation of the nation.' -- William O. Douglas

If Marshall's modesty and geniality made him the prototype of a successful chief justice, his successor, Roger Taney, became the antitype. Unlike the outgoing Marshall, Taney was austere and frail, and lacked the common touch. Somehow he managed to hold his badly divided Court together, at least until it fragmented irreparably in the 1850s on the rocks of slavery and sectionalism. Taney's stubbornness and grandiosity were reflected not only in the reviled Dred Scott opinion of 1857, which prevented Congress from deciding the status of slavery, but also in a later decision holding that President Abraham Lincoln had no emergency power to suspend the writ of habeas corpus during the Civil War (Ex parte Merryman [1861]). Taney went out of his way to mock Lincoln, who responded to his arrogance by ignoring the chief justice, and Taney's rigidity and lack of humility ultimately destroyed his reputation.

Portrait of John Marshall Harlan.
In 1896, Justice John Marshall Harlan issued the Court's sole dissent in Plessy v. Ferguson. Thurgood Marshall would later read the dissent for inspiration as he prepared to argue Brown v. Board of Education for the NAACP in the early 1950s.

Reproduction courtesy of the Library of Congress