John G. Roberts and the leadership of America’s great chief justices

Reactions to Chief Justice John G. Roberts, Jr.’s opinion for the Supreme Court, which upheld major provisions of the Affordable Care Act, divided along a predictable political fault line. Liberals applauded it; conservatives denounced it. Beyond the immediate result, however, Roberts’s opinion raises an intriguing, and potentially historic, question: In abandoning the hard-driving conservative wing of the court, has Roberts finally become the chief justice of the United States in both title and spirit?

The chief justice, after all, holds only the most tenuous reins of court leadership. He has only one vote, like the court’s other members, and few additional perks of office—he speaks first in conference, for example, and assigns the majority opinion when he is in the majority.

Loading...

Comments

• Weigh In
• Corrections?

Personal Post

Gallery

Iconic leadership moments in presidential history: The best and the worst leadership moments of recent U.S. presidents.

Gallery

Leadership rankings for federal agencies: The 20 large federal agencies that got the highest leadership scores in the 2011 Federal Employment Viewpoint Survey.

But for the extraordinary chief justice, even these meager duties afford him the subtle instruments of leadership.

The great chief justices in constitutional history—John Marshall, Charles Evans Hughes, and Earl Warren—have each used these tools to lead, building majorities that transcend partisan lines. Their leadership is dependent on their ability to persuade a majority of colleagues to join them.

Whether Roberts joins their ranks will depend on how effectively he can continue to persuade his colleagues to rise above party politics.

The first great chief justice, John Marshall, by force of his commanding personality and brilliant legal mind, was able to convince his colleagues to join him in even the most controversial decisions. In the famous 1803 case of Marbury v. Madison, Marshall demonstrated that he well understood the tools—and perils—of judicial leadership in a time of intense political partisanship.

The Marshall court, dominated by Federalist party members like the chief justice himself, was asked to decide whether Secretary of State James Madison, appointed by Republican president Thomas Jefferson, had acted illegally. He had refused to deliver to William Marbury, a loyal member of the Federalist party, a judicial commission (an official document appointing him a justice of the peace). Marshall was well aware that a decision ordering Madison to deliver the commission would invite confrontation with the president and the Republican-controlled Congress that the court would not win.

Marshall was up to the challenge. In his opinion, he stressed the legality of the commission, but concluded that the court lacked jurisdiction to decide the case because the congressional statute authorizing it conflicted with the Constitution. His opinion avoided an ill-fated confrontation with the Jeffersonian Republicans. At the same time, using judicial tools to render a politically shrewd judgment, Marshall claimed a vast power for the court to declare an act of Congress unconstitutional.

More than 100 years later, Charles Evans Hughes, whom Roberts is known to admire, offered a blueprint for successful judicial leadership in a series of lectures on the court made shortly before his appointment. In them, he said the chief justice must be respected for his knowledge of the law and his ability to persuade his colleagues of his constitutional position. But just as important, Hughes suggested, a great chief justice must be able to project an institutional image of non-partisanship. Otherwise, the court will be perceived as just another political branch of the federal government and, as a consequence, lose both its prestige and power.