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Friday, October 08, 2021

The Marshall Court and the Warren Court

Next year I'll have an essay on "Bushrod Washington and the Marshall Court" in the Journal of Supreme Court History, which is published by the Supreme Court Historical Society. Under their rules, I cannot share the draft on SSRN. Nevertheless, I can do a riff on a theme in the essay, which is also a theme in my forthcoming book on Justice Washington.

A Chief Justice of the United States cannot be a successful leader of the Court without an able and willing partner among the Associate Justices. Bushrod Washington and John Marshall were close collaborators. This is largely why Marshall was a great Chief. Earl Warren found close collaborators in Hugo Black and William Brennan. He was also very successful. Same with Chief Justice Taft and Willis Van DeVanter. The Chief Justices that are forgettable or considered failures lacked a reliable partner. While a Chief Justice might not develop that sort of pivotal relationship due to blunders (maybe Warren Burger is an example), sometimes it's just not something he can control. Maybe Chief Justice Roberts is in this boat now. He cannot lead the Court effectively because he lacks a partner.

The myth of John Marshall clouds this picture. People generally think that he led the Court by himself, so they naturally ask why can't other Chief Justices do the same. But he did not, in fact, lead the Court by himself. Consider the following analogy. When people refer to the Warren Court, they do not mean that Chief Justice Warren did everything. Virtually everyone understands that the Warren Court was a collaborative effort among many strong Justices. The same thing is true about the Marshall Court.

Posted by Gerard Magliocca on October 8, 2021 at 12:31 PM | Permalink


I'm not sure how close the Roberts/Scalia relationship was, but I will say Scalia was an intellectual partner to both of the chief justices with whom he served. Today, I don't know if Roberts's problem is so much that he lacks for partners as that he's more moderate than five justices to his right. While he's more likely to be in the majority than Rehnquist or he was pre-2018 (as he'll vote much more often with Kavanaugh and Barrett in big cases than he did with Kennedy or Rehnquist did with Kennedy and O'Connor), inasmuch as the Court's direction was predominantly conservative in those years Rehnquist or pre-2018 Roberts could largely control how far and fast the Court went in that direction. Now, Roberts's vote is mostly superfluous, and I don't think he has much control over the Court's agenda (surely taking Dobbs, for example, wasn't his idea). As for partners, I suspect Kavanaugh or Barrett will eventually fill that role, and I think Thomas will become something of an intellectual leader on the Court, but these are peculiar partnerships in that they ultimately can call the shots if they want to.

Posted by: Asher | Oct 10, 2021 3:57:28 PM

This is fascinating. How does it interact with considerations of the median justice on a closely divided Court? Would Rehnquist's "partner" have been O'Connor, because he needed her to maintain a majority and the assignment? Same with Roberts and Kennedy?

Posted by: Howard Wasserman | Oct 10, 2021 11:05:31 AM

I have complete faith in Chief Justice Roberts and believe it will be The Robert’s Court that will overturn several erroneous Supreme Court Cases due to errors in Substantive and thus Procedural Due Process Law, when it comes to The Rule of Law, based upon true essence, and The Law Of Non-Contradiction.

Posted by: Nancy | Oct 10, 2021 12:01:18 AM

Did Rehnquist have a partner?

Did Roberts in the past?

Posted by: Joe | Oct 8, 2021 1:46:31 PM

Yeah that's a fair point Mark.

Posted by: Gerard | Oct 8, 2021 1:16:59 PM

FWIW, I think there's a difference between Taft/Vandevanter and Warren/Black-Douglas, captured in part by David Danelski's distinction between task- and social-leadership. This oversimplifies things, but Taft was his Court's intellectually dominating force (Holmes, a special case, aside) and Vandevanter was the Court's task-leader, as Taft pretty much said, whereas Warren was his Court's social leader, with Balck and Brennan as the intellectual leaders (of their side of the spectrum).

Posted by: Mark Victor Tushnet | Oct 8, 2021 1:14:53 PM

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