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47 Washburn L.J. 1 (2007-2008)
The Supreme Court: Judicial Temperament and the Democratic Ideal

handle is hein.journals/wasbur47 and id is 9 raw text is: The Supreme Court: Judicial Temperament and the Democratic Ideal Jeffrey Rosen* It was an honor to deliver the Foulston Siefkin lecture. I would like to use this distinguished platform to explore the relationship be- tween two ideas about the Supreme Court that I have been thinking about recently. One involves judicial temperament and the other, the role of the Court in American democracy. The idea about judicial temperament suggests that much of what we were taught in law school about judicial success is wrong. The most important predictors of success on the Supreme Court, are not academic brilliance, philosophical consistency, or methodological ambition. In- stead, many of the most successful Supreme Court Justices are those who get along well with their colleagues, are able to compromise, and can set aside their own ideological agendas in the interest of preserving the institutional legitimacy of the Court. By contrast, the most brilliant and philosophically ambitious Justices have often alienated their col- leagues and subverted the ideals they hoped to promote. The idea about the courts and democracy suggests that much of what we were taught in high school civics is wrong. Many of us were taught that the role of the courts in democracy is to serve as a heroic protector of the rights of minorities against the tyranny of the majority. But this heroic vision of the counter-majoritarian court is hard to sus- tain. Throughout American history, courts have tended to reflect rather than to challenge popular views about constitutional ideals, and on the rare occasions when courts have acted unilaterally-that is, when they have tried to impose intensely contested visions of the Constitution on a divided nation-they have often provoked backlashes that have harmed the causes they intended to help. What is the relationship between judicial temperament and the role of courts in democracy? They are related most convincingly in a single figure, John Marshall. America's greatest Chief Justice embodied the kind of judicial temperament that defines judicial success and also the * Jeffrey Rosen is a law professor at The George Washington University School of Law and Legal Affairs Editor of The New Republic. His most recent books, on which the lecture is based, are The Supreme Court: The Personalities and Rivalries that Defined America and The Most Democ- ratic Branch: How the Courts Serve America. Jeffrey Rosen was the 2007 Foulston Siefkin Lecturer at Washburn University School of Law.

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