Today's Brian Teaser: Collegiality, History and the Law
In advance of the four-part PBS series “The Supreme Court,” which debuts this evening, the News Hour with Jim Lehrer hosted an interview with George Washington University Law Professor Jeffrey Rosen, and ABC news legal correspondent Jan Crawford Greenburg. Both Rosen and Greenburg have recently released books on the High Court.
During the interview, Professor Rosen remarked that through his research on the Justices and the Court:
I learned that personality matters, character matters, temperament matters. Brilliance is not enough.If by "individual ideologies" Professor Rosen means a judge's views on the law, the tug and tension between collegiality, on the one hand, and the judge's obligation to state forthrightly what he or she believes the law to be in a given case, on the other, could have very profound implications. Admittedly, it is not clear from the context of the interview whether Rosen believes that judges who work in panels should make substantive alterations in their positions in order to get along with their colleagues, or rather merely state those positions in ways that avoid clashes with their workmates (I will buy his book and see), but if it is the former, a number of important questions arise.
You see over and over again the brilliant ideologue shooting himself in the foot, the collegial pragmatist creating majorities. The self-serving justice is temporarily vindicated, but ultimately scorned by history, whereas those who get along well with their colleagues are able to reshape the court in their own image.
If I were a president picking a justice, I would, first of all, read a lot of judicial biographies, because it's incredibly fun, and then pick a justice whose character you trust, who's able to find common ground, and realize that the court ultimately, as an institution, is more important than the individual ideologies of any particular justice at any moment in time.
Should the panel members' need for collegiality shape the substantive result for litigants in a pending case?
If the ability of panel members to "split the difference" with each other is a key factor in judicial decision-making, is this really a call for the selection and promotion of judges who have no quarrels with our current body of precedents?
The complete interview with the authors is accessible here.
Lots to think about during the debut of the PBS series tonight.