Rosen’s Crabbed View of Judicial Temperament
I recently finished Jeffrey Rosen’s The Supreme Court (can you say “read” if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen’s analysis of what he took to be his central theme: judicial temperament. In many ways Rosen’s book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as “a judicial lounge act.”
Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and — most of all — John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen’s book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.
Rosen’s problem — and it is one to which constitutional law mavens seem prone — is his Supreme Court-centric view. Judicial legitimacy means the legitimacy of the Supreme Court. Judicial temperament means the temperament of justices who shield that Court. In fairness, Rosen is writing a book about the Supreme Court, but there is more — much more — to judicial virtue than the legitimacy of the Supreme Court.
Rosen’s list of villains nicely illustrates his crabbed view of temperament. Whatever else they were, Holmes, Douglas, and Scalia are very different kinds of judges. It is a fairly easy matter, I think, to dismiss Douglas. His opinions are sloppy, poorly reasoned, and provide minimal guidance to lower courts while maximizing the number of attention grabbing aphorisms. Holmes and Scalia, of course, are also aphorism mongers, but unlike Douglas they have some real respect for the role of judge as an expounder of legal doctrine. Holmes, I think, is a better example here than Scalia. His opinions, particularly on the Supreme Judicial Court of Massachusetts, did a great deal to flesh out the core doctrinal concepts of areas like tort and contract, providing not only answers on hard questions but more importantly a structure and vocabulary in which to debate his answers. Likewise, one of the reasons that Brennan — a little discussed justice in Rosen’s book — was not a judicial lounge act was that in addition to sharing Douglas’s liberal instincts, he was also a doctrinal craftsman, creating an intellectual structure on free speech law, for example, that has largely won the (partial) allegiance even of political opponents like Scalia. It is not simply, however, that Brennan was an effective smoozer while Douglas was not. Rather, Brennan understood that the Court’s decisions were only powerful to the extent that they provided intellectual categories that could guide lower court judges. Douglas’s penumbras are ridiculous not only because they undermined the legitimacy of the Court, but because they told those who had to apply the law virtually nothing about the contours of its demands.
Rosen’s view of judicial virtue, however, has little to say about legal craftsmanship. Fixated on judicial review and the counter-majoritarian difficulty, he focuses relentlessly on the issue of institutional legitimacy. Hence, for example, Sandra Day O’Connor is praised for her judicial statesmanship, yet as any lower court judge or lawyer not practicing before the Supreme Court can tell you, O’Connor’s opinions are a nightmare to apply precisely because of their inattention to doctrinal structure. They may position the Court in a politically advantageous position, but they do little to advance the coherence and consistency upon which the day to day application of the law depends. Of course, even my preference for doctrinally minded judges reveals a law professor’s bias for appellate courts. The temperament of real judges, the kind involved in the concrete resolution of disputes in our society involves an additional catalog of virtues.
In the end, Rosen’s analysis tells us what makes for the continuation of politically powerful courts. I don’t think, however, he has all that much to say about what makes for a good judge.