Supreme Quorums

Just finished The Supreme Court: The Personalities and Rivalries That Defined America (2006) by Jeffrey Rosen, a law professor at GWU. The book is a companion volume to the recent PBS series of the same name which, somehow, I missed hearing about. Did anyone catch it? The book stands very nicely on its own (not true of all companion volumes) and focuses on how the personalities of some of the more notable justices on the Court contributed to their success (or undermined their efforts) to move the Court and the country in the direction of their view of the legal or social issues they championed. After a few summary remarks, I'll ask whether there are any parallels to our own ruling Quorum of the Twelve.

Personalities on the Court
There are dozens, even hundreds, of books on the Supreme Court. This one focuses on the personality and temperment of several justices. According to Rosen, the most effective justices over the long run are those who are able to seek common ground with other justices and, on some occasions, compromise their own doctrinal views in order to form a majority opinion. He sees chief justices like John Marshall, Earl Warren, and, more recently, William Rehnquist as fine examples of this successful approach. These men were also cognizant of building the credibility and legitimacy of the US Supreme Court as an institution and as a branch of government.

By contrast, those justices who were so firmly committed to an agenda or a judicial philosophy that they were unwilling to downplay those views on some occasions, or who were unwilling to narrow the scope or modify the grounds of an opinion in order to garner support from other members of the Court, were less effective. As examples, Rosen gives William O. Douglas and, more recently, Antonin Scalia.

A recurrent theme in Rosen's commentary is that justices who came from a political background, especially with legislative experience, were particularly good a making strategic compromises and writing opinions that appealed to justices in the middle or even in the opposite camp of a given issue. Those from a law professor background seem to have a tougher time with this institutional aspect of the Supreme Court. It's worth noting that trial judges fly solo (of course) and appellate panels are generally just three judges. The Supreme Court is the only federal court where this sort of "give and take" approach plays such a prominent role in crafting opinions.

In the last chapter, Rosen provides several pages summarizing his interview with Chief Justice John Roberts, who was appointed in 2005. Roberts has quite consciously adopted John Marshall's style and approach as a model for how to function as chief justice. This seems like the right approach to take and a good omen for the future of the Court, especially given the recent politicization of the appointment process and the higher degree of public attention directed to the Court and to individual justices.

The Twelve
The contrast between judicial deference (to the legislature or to democratic majorities) and judicial activism (using the Court and its opinions to aggressively assert one's own legal agenda) was a prominent feature of the book. Is there such a thing as apostolic deference or apostolic activism? Plainly, there is a lot of collegiality among the Twelve, and they work hard to defer to each other, at least publicly. So when we see an "apostolic activist" like Elder McConkie, they really stand out.

In terms of temperment, whoever occupies the position of President of the Church does, in some sense, set the tone of church government, not unlike how the Chief Justice sets the tone for the Court (although the Chief has much less formal authority to lead the Court than the President has to lead the apostles and the Church). But there isn't much variation in the public temperment of the modern presidents. Joseph and Brigham were "activists," but they also encountered resistance, even open opposition, from some of their counselors or members of the Twelve. By contrast, in the 20th century LDS Presidents have largely worked with and through the Quorum of the Twelve. That is even more pronounced in our day than, for example, under President McKay.

A final note on diversity. The second half of the 20th century saw African-Americans and women assume places on the Court. No similar event has occurred with the Twelve. The only move in that direction is the calling of Elder Uchtdorf, a German. I recall remarks made ten years ago when Elders Nelson and Oaks were called to the Twelve at the same General Conference that the senior leaders went outside the ranks of the LDS bureaucracy (the Seventies, etc.) to bring in Nelson and Oaks as new blood or fresh thinking. So senior leaders do recognize the merits of bringing diversity of opinion and experience to the governing quorums of the Church (the fifteen apostles, organized as two quorums). But at this point it seems to be a fairly circumscribed sort of diversity.

Comments

[john f.]

I saw one part of it in a hotel in NYC while travelling for work. It made for interesting viewing and I wanted to see the rest but was unable to do so. Interesting application there. Thanks.

[Last Lemming]

I recall remarks made ten years ago when Elders Holland and Oaks were called to the Twelve at the same General Conference that the senior leaders went outside the ranks of the LDS bureaucracy (the Seventies, etc.) to bring in Holland and Oaks as new blood or fresh thinking.

It was Nelson and Oaks. Holland came later.

[Dave]

Five bonus points for Last Lemming. It was Elders Nelson and Oaks that came in together. I will correct the post.

[J. Stapley]

I'm no court historian, but when I was reading The Brethren several years back, I was surprised by the amount of power a chief Justice could get by simply being more flexible (choice of who wrote decisions etc.).

[Justin]

I saw most of the series. As the LA Times critic famously put it, "There was a justice named Hamburger [sic] and a justice named Frankfurter."

The General Authorities are publicly united today and keep any disagreements private. Nothing like the days when Hugh B. Brown was publicly contradicting Ezra Taft Benson or making public comments about the priesthood policy.

I'm a bit confused by your comment on Oaks and Nelson. Are you saying that those remarks on diversity were made ten years ago? Or back in 1984?

[Dave]

Justin, 1984? Has it really been that long? I recall hearing the remarks at the time Oaks and Nelson were called, which (shooting from the hip) I pegged at ten years ago. Seems like ten years.

[Steve EM]

J. Stapley,
The chief justice assigns who writes the opinion only when in the majority. I believe you're referring to the practice of conservative chief justice Burger abusing the privilege and becoming hated by the liberal justices by often switching his vote if he found himself in the minority to retain the assignment privilege. Chief justice Renquist put an end to those shenanigans and that was the main reason the liberal justices got on very well with him, even though he was much more conservative than Burger.

[Steve EM]

All those white faces and blue suits is embarrasing. It long past the time for the ranks of GAs to look like the church. Moreover, our defacto female GAs should be referred to as GAs.