Leadership on the Supreme Court with Steve Vladeck

[00:00:00] Lindsay Chervinsky: What can we learn about leadership from examining the history of the Supreme Court? Welcome to Leadership and Legacy, conversations at the George Washington Presidential Library at Mount Vernon. I'm Dr. Lindsay Chervinsky, head of the library. In this podcast series, we talk with experts about leadership and history, how studying these stories helps us understand our current moment, and how we can apply lessons from leaders in the past to our own lives.

Today I'm joined by Steve Vladeck, law professor extraordinaire, perpetually disappointed Mets fan, prolific writer of the substack One First, author of the New York Times bestseller Shadow Docket, and the person responsible for making that term famous. Or infamous, much to the annoyance of certain Supreme Court justices. On top of all of that, he also has a day job, as a professor of law at the Georgetown University Law Center. He is whip smart, a ridiculously nice human, and he joined us at the George Washington Presidential Library for an event on the history of the Supreme Court last fall, right after moving to Washington, D. C. So basically, he has an inability to say no, which we are intensely grateful for, because there is no one that can talk about the history of the court and what it means today with more humor, facility, and accessibility than Steve.

Lindsay Chervinsky: One of the government institutions that most people don't generally think of when they think of leadership is the Supreme Court.

Typically, they think of Congress or the President or CEOs, some type of other institution. But I would argue, and I think you will argue, that leadership is actually an essential part of the Supreme Court. And I'm wondering if you can tell us why and what that looks like.

[00:01:40] Steve Vladeck: Sure. I mean, I think leadership is not just an essential part of the Supreme Court, but I think it's essential to the Supreme Court's ability to do stuff that anyone outside the Supreme Court listens to.

The Supreme Court has no hard power. It has no police force. I mean, it does, but it has no ability to, like, do anything outside of its building. It only has a building because Congress gave it a building. And so the court's leadership, both internally and externally, I think is central to its most important goal, which is persuasion and persuading people, not necessarily that we agree with what the court's doing, but that we agree that it's doing something principled and worthy of our respect.

Putting figureheads on that is really important. It's not for nothing that John Marshall and Roger Brooke Taney, two very, very different chief justices, are at the middle of the court for 63 and a half years in the 19th century, while the court is growing, while the nation's growing. It's not for nothing that most people can't name any of the chief justices between Taney and gosh, I don't know, Earl Warren.

And those courts were perhaps somewhat less central in our public discourse. And so I think it's both how a chief justice leads inside the building and then how the court, through its behavior, sets examples that people are inclined to follow. Moral leadership, right, not coercive leadership.

[00:02:52] Lindsay Chervinsky: History note.

Almost all Americans know about George Washington. But have you heard of Bushrod? Bushrod Washington was George Washington's nephew and he inherited Mount Vernon after George's death in 1799. Crucially for this conversation, he was also a Supreme Court Justice, from 1798 until his death in 1829. I wanted to know what Vladeck thought of his legacy.

So because we are at George Washington's Mount Vernon, I have to ask about Bushrod Washington, who was one of Washington's heirs and who owned Mount Vernon for a time and whose papers we have. And you can see online. Tell us about his stint as a justice of the Supreme Court.

[00:03:33] Steve Vladeck: Bushrod Washington is one of those characters.

There are a few of these examples in American history of folks who are crowded out by even more towering figures right in front of them. Washington was, I think, in some respects, Marshall's right hand for a good chunk of John Marshall's tenure as Chief Justice. He was a staunch Federalist. He was on the court for almost all of Marshall's tenure, like 29 of the 36 or 34 years, he didn't write a lot on his own, but that was Marshall, not Washington.

And I think his influence was in his stability. So there are examples of times where Washington helps Marshall through sticky wickets. Especially when it came to Marshall's relationship with Justice William Johnson, who was the leading, I guess, Jeffersonian on the court for much of that time. One of the things that was very true during that period in American history is the justices sometimes were more important in their role as circuit justice.

And there are a lot of examples of circuit justice Washington with pretty important grand jury charges and other sort of things that have faded from memory because we don't think about the courts that way anymore, but you could tell a story where at least in the first 25 to 30 years of the 19th century, Washington is no lower than third for most significant Supreme Court justice behind Marshall and Joseph Story.

[00:04:44] Lindsay Chervinsky: He definitely does not get that due

[00:04:45] Steve Vladeck: Part of that, I think, is because we talk about the Supreme Court of that era almost exclusively as the Marshall Court. We are surprised when any of its big decisions were not by Marshall, like Martin v. Hunter's Lessee, which is by Story because Marshall actually had a vested financial interest in the case.

And I think that's unfortunate because the Supreme Court's role at that time was probably more significant in the justices circuit riding capacities, where they saw more cases where they made more law than the 35 cases they were deciding a year as a full court.

[00:05:16] Lindsay Chervinsky: Another history note. We still use the term circuit court today, but back in the 18th and 19th centuries, justices like Bushrod spent most of their time not in Washington, but physically traveling a designated circuit to hear court cases.

Justices spent months on the road away from home and were at the mercy of the limited infrastructure of the new United States. And they freaking hated it. Despite centuries of complaints, circuit riding wasn't eliminated until 1911.

So earlier when we were talking, you mentioned Thomas Johnson, and I need to just kind of put a quarter in the machine and say, go.

[00:05:55] Steve Vladeck: Speaking of circuit riding. There are two Justices Johnson, and they're both quite old in our history. So Thomas Johnson has this remarkable distinction. He was the first justice who was appointed after the original six. So the Judiciary Act of 1789 creates six justices, which, by the way, tells you a lot about what Congress was thinking about the Supreme Court.

How many people should we put on a multi member body that's going to have the last word on all these questions? We'll pick six. That seems like a good number.

[00:06:17] Lindsay Chervinsky: An even number. That's a great choice.

[00:06:18] Steve Vladeck: It suggests that they were not thinking of a court that was going to divide ideologically in so many contexts. But anyway, so Thomas Johnson is President George Washington's first replacement nominee.

And it's 1791, Thomas Johnson's from Maryland, and Johnson is basically on the court for not much more than a day and a half before he writes this very angry letter, at least in late 18th century standards, to President Washington saying I was hoodwinked. And Johnson's principal complaint is that he didn't fully appreciate that the real job of a Supreme Court justice of that era was not sitting on the Supreme Court it was riding circuit. Riding circuit, mind you, at a time where roads not so much. Accommodations, not so much. Indeed at least for a while Congress didn't even pay for the justices' travel. And so Thomas Johnson writes this letter to Washington where he says, this is nuts. I'm not doing this. I'm out of here. And so he resigns, I think, in early 1793.

And he's not alone. John Jay steps down from the chief justiceship to run for governor of New York, which one New York paper called a promotion. John Rutledge, who never showed up for a single session of the full Supreme Court when he was an associate justice, leaves to become the chief judge of an intermediate appeals court in South Carolina.

Like, this was not an especially attractive gig. John Marshall was Adams' third choice to succeed Ellsworth. There's a lot of mod— presentism in how we think about today's Supreme Court. That, especially given how much the current court is committed to history and tradition and understanding the Constitution, it's kind of ironic that we don't talk about just how weak the Supreme Court was, enfeebled, unpopular, and unattractive, really until long after John Marshall got his hands on it.

[00:07:54] Lindsay Chervinsky: How did this idea of having to care about public opinion, when did that emerge? When did that become part of the court's leadership?

[00:08:01] Steve Vladeck: Yeah, I think historians would disagree about exactly when that moment is.

[00:08:03] Lindsay Chervinsky: Historians disagree?

[00:08:05] Steve Vladeck: I know, I mean, the Supreme Court tells us there's one answer to every historical question.

I think part of it is John Marshall, part of what made him such a important and towering figure in the historical story is I think he was the first of the, by the time he was on the court, four chief justices. To really think about what kind of message the court was sending institutionally, his three predecessors, John Jay, John Rutledge, Oliver Ellsworth, they were luminaries, all, but I think they were not focused on growing the court as an institution, on claiming power, on entrenching, not a particular political agenda, but rather an institutional agenda, nearly to the extent Marshall was. And so I think it starts with Marshall. It's a view that the way the court gains power is not necessarily by exercising it, something that really I think comes into the fore early in the 20th century. But Marbury v. Madison, the famous 1803 case in which the court purports to establish its power to invalidate acts of Congress, is a masterstroke because the act Marshall invalidates is an act that gave the court power.

And so by invalidating it, he's actually taking away his power. It's almost paradoxical, and yet it's also brilliant. But I also think that the conversation changes pretty radically after the Civil War, because the nature of what the Supreme Court is doing changes fundamentally after the Civil War.

Before the Civil War, the court is hearing 35, 40 cases a year. Most of them are cases nobody even cared about then, certainly not now. Because of some big shifts in the nature of the federal government, in the nature of nerdy federal procedural rules, the federal dockets explode after the Civil War. And with it, so does the Supreme Court's role.

And so that's why I think the court's relationship with the other branches of government Marshall is able to have this profound effect because he was there so early. It's really after the civil war that that relationship becomes really, really important, especially in the midst of some of the pitched separation of powers battles of Reconstruction.

[00:09:55] Lindsay Chervinsky: So I heard two themes there that I just want to flag for the listeners. One is this concept of institutional building and an intentionality that is often required with that institutional building. And the other is a trait that I harp on with presidential leadership that we don't typically factor in, which is restraint.

And I'm wondering if those things are factors that you think that the great leaders on the court have regularly kept at the center of their minds.

[00:10:21] Steve Vladeck: So, absolutely. The tricky part, Lindsay, is that I think they would define restraint differently. That what is restraint is to some degree generational and contextual.

Restraint in the 1930s was the court taking its hands off of the New Deal, and taking his hands off of economic regulation at the state and federal levels. That's the big part of the fundamental shift in the court's role that we see in 1937 and the years and decades afterwards. Restraint in the 1970s, right, is the more conservative Burger court not necessarily being as aggressive in providing remedies for so many of the constitutional protections that the Warren court had articulated.

Restraint in Taney's time, was actually trying to keep the court out of future slavery disputes. For as terrible a ruling as Dred Scott was, Taney thought he was actually exercising restraint, ironically by going way the heck overboard, reaching out to strike down a statute that had already been repealed in the Missouri Compromise.

So I think they would all probably say, yes, it's about restraint, but they would mean very different things.

[00:11:17] Lindsay Chervinsky: Oh, that's such an interesting point that I think that I will have to circle back on in some other scholarship because, boy, that is quite a thought.

[00:11:24] Steve Vladeck: And it's a debate that we still have today. When folks throw about the term judicial activism, usually it just means rulings I don't like.

But I actually think that the non pejorative understanding of activism is courts doing something that is unrestrained. But what is restraint? Is restraint Letting a potentially unconstitutional law go into effect? Is restraint limiting how aggressive you are in striking down the law? Is restraint taking fewer cases?

Restraint is very much about the eye of the beholder with regard to what you think the role of the judiciary is vis a vis the other branches of government.

[00:11:54] Lindsay Chervinsky: And do you think that what you would consider to be the best, or maybe the most impactful chief justices, have they had the same sort of eye to the institution building, or at least after Marshall, the institution maintaining role of the court that he did?

This question opened the door to a fascinating conversation about what leadership looks like on the Supreme Court. What kind of personality and approach is required of a great Chief Justice, and how has it changed over time? Surprisingly, Vladeck's first answer involved a figure much better known for his time as president.

[00:12:29] Steve Vladeck: I think so. I would make the pitch, and I might get pilloried for this and not let back into law schools, that Marshall's only the second most important Chief Justice we had, and that when it comes to institution building, he is a distant second to William Howard Taft.

[00:12:41] Lindsay Chervinsky: That is a fiery take. Please say more.

[00:12:43] Steve Vladeck: I am, I am. I know it is a hot take. We tend to think of Taft, if we think of him at all, as a middling president. The apocryphal story about how he got stuck in the bathtub, although it's a great children's book. Taft as Chief Justice actually had a second career. By that point, it was his fifth career. He's Chief Justice from 1921 to 1930, and his real legacy as Chief Justice, is articulating a vision of an independent judiciary that is absolutely responsible for where we are today, both the good and the bad. So, for example, Taft was the principal sponsor of the Supreme Court getting out of the Capitol and getting its own building. He starts advocating for that while he's president.

Taft is responsible for the, for lack of a better word, administrative bureaucratization of the federal judiciary because he's the one who creates the judicial conference, the policy making arm of the federal courts. And just at the Supreme Court itself, Taft is the one who completely revolutionizes the court's docket by basically transfiguring and transforming the court from a court of appeals that's just the last court to resolve every little case under the sun, to really a constitutional court with discretion to pick and choose its cases, and with the ability to just exist above and apart from the fray of ordinary judicial business.

And that was all profoundly with an eye toward, not just where we started, toward a particular type of leadership, but a particular type of institution building, where he thought that it was the only way for the court to live up to the Founder's plan for having this independent judiciary.

[00:14:02] Lindsay Chervinsky: We've talked about two of the perhaps most impactful justices, and I'm wondering if you think that Supreme Court leadership or even chief justice leadership has evolved over time as a position, much like I think the presidency has, or if you think it still remains intensely based on personality?

[00:14:21] Steve Vladeck: Can the answer be both?

[00:14:22] Lindsay Chervinsky: Yes, as long as you explain.

[00:14:23] Steve Vladeck: Yeah. So I think the reality is that it is unquestionably true today that we think about the chief justiceship, differently than how we think about the other eight seats on the court. In 2005, when John Roberts was first nominated to replace Sandra Day O'Connor, and then the nomination switched after Chief Justice Rehnquist passed away from throat cancer, the tenor of his responses to questions changed a bit, the tenor of the discourse around his nomination shifted a bit, because now it became not just like what kind of justice will you be, but also what kind of administrator will you be.

Folks who are not like uber Supreme Court nerds might not fully appreciate how significant the Chief Justice's administrative role is in keeping the trains running on time. One of the things that even the Democratic appointees would say about Chief Justice Rehnquist is that he was a brilliant administrator, even if they disagreed with him all the time.

No one said that about Warren Burger, right? And so, you know, even though I think Burger and Rehnquist were quite similar in their views, and in their jurisprudence, they were such radically different leaders, and there were such radically different administrators that their reputations as chief justices are wildly different, even though you see much the same jurisprudence coming from their pens.

[00:15:30] Lindsay Chervinsky: So can we then make a list of what is required for a chief justice? Or is it really just throw stuff at the wall and hope that it fits?

[00:15:37] Steve Vladeck: It's a small data set, right? John Roberts is the 17th person to hold this position.

[00:15:41] Lindsay Chervinsky: That is mind boggling.

[00:15:42] Steve Vladeck: That's well less than half of the number of presidents we've had.

And so it's difficult to draw too many generalizations, but at least a little bit of humility, some of the chief justices who have gotten into trouble have been the ones who have been a bit bombastic and self centered in their views of their role. I think it doesn't hurt to have chief justices with a modicum of other governmental experience, because they have a sense of how other institutions in the government function.

But even that is no guarantee. Fred Vinson, when he was chief justice, he had served in senior positions in both of the democratically elected branches, and he was not an especially beloved chief justice. So that's why I say both. Because I can think of examples of beloved chief justices who actually had stunningly little experience and terrible chief justices who had tons of experience.

And I think it's a really a combination of what your values and priorities are and what your personality is. And sometimes we've struck gold and most of the time we haven't.

[00:16:36] Lindsay Chervinsky: What are some examples, maybe specific, either based on cases or based on personalities or conflicts of specific leadership successes and failures in the court?

[00:16:45] Steve Vladeck: So when thinking about leadership successes, Earl Warren's ability to achieve unanimity in the major early civil rights cases has to be very high on the list. He was a new chief justice. This is a remarkable feature. Like he had been on the court for less than a year when Brown was re argued. And I think that was a combination of personality and experience.

He was a politician. He had been the attorney general of California. He'd been the governor of California. He had never been a judge. And he comes to the Supreme Court, and I think he understood, perhaps because of where he came from, that Brown was fundamentally a political project, as much as it was a constitutional project.

And that in structuring that project, it was really more important that the court speak with one voice than what the court actually said. And so the stories are now pretty well worn about the lengths to which Warren went, to ensure that no one wrote separately in Brown v. Board of Education 1. To ensure that no one wrote separately in Brown 2.

In Cooper v. Aaron, the case about whether the Little Rock school board was required to follow Brown, in actually getting all nine of the justices, not just to join the majority opinion, but to sign the majority opinion, the only time that's ever happened. That's leadership to me, where to Warren, the institutional message the court was sending through unanimity was far more important than the substantive message that the opinions were sending, and that's a classic and textbook example of the phenomenon.

Failures. I think looking back, obviously, Chief Justice Taney, And Dred Scott has to go down as a pretty big institutional failure because Taney had a goal, which was to lower the temperature of the national discourse when it came to slavery and produced exactly the opposite. Why? Because I think in part it was a divided decision. There were poignant dissents, but also because it really helped to give the abolitionists a particular focal point to rally around that they hadn't had before.

I will also say, I don't think this gets nearly the same kind of attention, the chief justiceship of Warren Burger probably is not an especially positive example historically, not just because of the internal dynamics where justices from across the ideological spectrum were very frustrated with how the court was run, but externally, the court had done a lot of very positive things institutionally in the years leading up to Burger's tenure. He really lost the ability to have much control over the messages the court was sending.

So for example, the death penalty cases, where in 1972, one 5 4 majority basically puts a nationwide halt on the death penalty. Four years later, different 5 4 majority comes back and reopens the door to the death penalty. That kind of—

[00:19:10] Lindsay Chervinsky: Mixed messaging is not what you want from a court.

[00:19:12] Steve Vladeck: And whiplash, right? And constitutional whiplash. If we go back a little longer in history, Vinson's chief justiceship is not exactly held out as a great success.

The reality is that the less good chief justiceships tend to be less good because that chief justice wasn't able to really leave their mark institutionally or doctrinally or both.

[00:19:32] Lindsay Chervinsky: So let me ask about that. One of the things that I think with presidential legacies and leadership is that we really have to take time because, you know, we don't have all the records for a while because things are classified.

Generally, our tempers are too hot initially, and also their legacy is defined by almost what happens after. How did things turn out? How did their decisions play out? What worked? What didn't?

[00:19:53] Steve Vladeck: How were their judicial nominees?

[00:19:54] Lindsay Chervinsky: That's a big one that is often not counted in that consideration. And so, to what extent do we need time to assess a court?

And if we do need time, when do you think it's fair to start assessing a court's legacy?

[00:20:06] Steve Vladeck: That's such a great question. I guess I, I, I'm of two minds because I think that historians, to be doing anything that could remotely be called history, obviously need time. all the more so given that it's even harder to have access to the justices' papers than it is to have access to presidential papers.

The reality right now is that it is impossible to get papers for anything that happened since Justice Thomas was on the court. And that was in 1992. And even then, there are justices who had their papers destroyed. There are justices who didn't keep especially good papers.

[00:20:36] Lindsay Chervinsky: I shake my fist at them in historian.

[00:20:38] Steve Vladeck: One might think Congress might want to create some rules for the justices' papers.

[00:20:42] Lindsay Chervinsky: You would think.

[00:20:43] Steve Vladeck: But the problem, Lindsay, and this is true for presidential leadership as well, is the historians need time, but we live in the real world. And especially when we are talking about institutional reform, we can't wait for the historians.

And it's not like in 2024, we can say, okay, let's fix what went wrong in 1977.

[00:21:00] Lindsay Chervinsky: Yeah.

[00:21:01] Steve Vladeck: The tricky thing, especially for folks who play in both the academic and practitioner world, is to try to split that difference and say, here are the judgments we're not ready to make yet, but let's still track some of these trends. Let's still point out what this court is doing differently compared to its predecessors, even if we don't yet have the full story

[00:21:19] Lindsay Chervinsky: Well, and I would think you could also as a lawyer and as someone who is in more of the practitioner realm, you can say here is the real world impact right now.

We don't yet know what may be the 30 year impact is, but we can tell you on the court cases or what we're going to see at this moment, what is actually happening.

[00:21:35] Steve Vladeck: A hundred percent. I guess the tricky thing there is that it is inherently legitimate to look at presidential leadership by dint of the real world impacts it produces.

It's trickier with courts, because there's at least one view of the role of the courts where the real world impact isn't irrelevant, but shouldn't necessarily be a dominant consideration. It's fraught in the sense that you have to have a sense of the extent to which we believe that the real world impact is a relevant part of the calculus.

I do, but one of the defenses that is going around these days especially, of a court that seems increasingly uninterested in public criticism, is that that's actually judicial courage, that the role of courts is to not cave to public pressure, that real world impact is secondary if the law is the law. I think that that view has a lot of problems baked into it, but it's out there, right?

And so I think it's, this is where maybe the attempt to sort of draw analogies between presidential leadership and judicial leadership run into a little bit of trouble.

[00:22:33] Heather Soubra: That's a really good point.

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[00:23:08] Lindsay Chervinsky: It's hard to deny the power and importance of being a Chief Justice, but Vladeck suggested that the center is one of the most powerful places for a justice to occupy, with the power to determine how a close vote shakes out.

We've talked a lot about the chief justice, but of course a chief justice is not a chief unless he has other justices to chief.

So talk to me about some of the other justices. Can they exercise leadership and if so, what does that role look like?

[00:23:48] Steve Vladeck: The, the old line, right? The chief is first among equals. Um, So the chief's power comes in two forms. The chief has first the sort of the big gun power, which is that he or she, although so far just he, is the senior justice on everything.

And because we care a lot about seniority in this context. That means that when the Chief Justice is in the majority in any particular case, he's going to have a lot of say over what happens. And I don't want to overstate how big a deal that is, but we also shouldn't understate it. But that gives the chief a lot of agenda setting power that each individual Associate Justice does not have.

Then the rest of it's administrative. That the chief's other powers are helping out a justice with little administrative stuff, assigning justices to different parts of the country for be it their circuit riding responsibilities. Well, not riding, but their circuit justice responsibilities. So, there's some power there.

Associate justices, the power is much more case dependent and much more substantive, where your power is going to depend on a function of two things. How senior are you and how close to the median are you? Justice William O. Douglas, God bless him, late in his career when he was by far the senior associate justice, had virtually no power because he was not the median on anything.

And he didn't want to be the median, he didn't care. Versus, a Justice Sandra Day O'Connor, or Justice Anthony Kennedy who were the medians. And so actually didn't just have power over their colleagues, had enormous power over lawyers. In the 12 years that we had this stable court from 2006 to 2018, when you really had two, four justice blocks to either side of Justice Kennedy, people wrote briefs that were just addressed to Kennedy.

And the justices behaved based on how certain or not they were about where Kennedy was. And so power as an associate justice is not as bureaucratic and really is much more tied to how ideologically divided the court is and where you fit in that divide.

[00:25:39] Lindsay Chervinsky: I know this isn't your specialty per se, but do you think that swing vote or committee like influence is applicable to other committee structures or even like a congressional body if you have a really close line between the parties?

To what extent is that a leadership quality that applies to other institutions.

[00:25:55] Steve Vladeck: I'm sure that it's generalizable. I don't know why I gravitated toward this example, but I was thinking about the Electoral Commission of 1877.

[00:26:04] Lindsay Chervinsky: That's a very specific example.

[00:26:05] Steve Vladeck: I know it is. I was trying to think of like, you know, some really famous body that involved multiple branches of government.

Even though it was a 15 member commission, the entire fight was over the one person who was going to be in the middle. And everyone assumed it was going to be then Supreme Court Justice David Davis, which, Both the Democrats and the Republicans were okay with, because Davis was viewed as the most principled person in Washington.

And then the Illinois Senate tried to mess it up by electing Davis to the Senate. And so he had to step down, and so it was Joseph Bradley, and Bradley was not quite as independent. So, I think there's no question that in any multi member body that is going to regularly divide into blocks, the median in that body is going to have outsized power.

Of course, the question is, how are they going to exercise it? And you don't have to know a ton about Justice O'Connor and Justice Kennedy to know that even though they were both in the quote, middle, unquote, they were very, very different in how they approached their middleness. Where, for O'Connor, she really did tack pretty closely to the middle, and whereas for Kennedy, he vacillated widely between the left in some cases and the right in others.

And the averages were the same, but they were very different stories. I think there's a lot of room for personality in that space, but I think it's inevitable that if you have some kind of multi member body where you keep dividing along the same lines, the person who's most likely to cross over is going to be the one who has the real, if not the formal, power.

[00:27:28] Lindsay Chervinsky: Do justices care about the history of the court, or do they care about stare decisis, or is that a trick question? And the answer is neither. Or both.

[00:27:38] Steve Vladeck: So there's an old quote by a Scottish writer that I love, Andrew Lang, who talked about using statistics the way that a drunk uses a lamppost, for support rather than illumination. And I think that that is often how at least some of the current justices approach history and approach the court's history, especially.

I argued a case in the Supreme court in 2019, where one of our big arguments was that there was a very rich historical tradition for the court to provide particular types of relief when federal officers violated our rights.

And one of the first questions I got from Chief Justice Roberts was, don't we have to move the clock up to like 1970? And at that moment, I don't want to say, aren't you guys the originalists? But the thought went through my mind. I think it's tricky because there is a very powerful argument that the raw power that the Supreme Court has today is deeply consistent with the original understanding with what Hamilton writes about in Federalist 78 with what was the prevailing understanding at least among the Federalists about the Supreme Court.

What I think has changed so fundamentally in ways that have become mostly lost to history is how much that raw power was subject to political constraints and how much Congress was giving that power and was circumscribing that power and was nudging the court with that power and was sometimes taking it away.

There's a wonderful quote that Justice Alito gave the Wall Street Journal last summer where he says, I know this is an unpopular position, but I'm willing to say it. No provision in the Constitution gives Congress the power to regulate the Supreme Court, period.

Well, so just as a matter of plain text, that's not true. Article 3, Section 2 gives the Congress the power to make regulations of the Supreme Court's jurisdiction. But it's really speaking, I think, to the zeitgeist that we're in today, which is one where Congress has stopped regulating the court. And so the view is, were Congress to start, it would be doing something wrong.

And I think that that is profoundly oblivious to the history, where actually a big part of what made the court to my mind, generally healthy, even when it was wrong, and a team player in the separation of powers, was at least the specter of congressional intervention, if not the actual reality of it. And I think part of why we are where we are today is not the composition of the court, but rather is the Congress has stopped and that a lot of those levers that Congress used to pull, it's just not pulling anymore.

[00:29:47] Lindsay Chervinsky: I think we're going to have to do an episode on congressional leadership, but I will circle back to that. We've talked about a very specific forms of SCOTUS leadership, whether it be the institutional mechanisms that the chief justice has or the positional leadership vis a vis others that the associate justices have.

But are there elements of this type of leadership that you think apply to other positions or maybe listeners could take from? These very lofty positions that most of us will never have and apply to their daily lives and their positions of leadership.

Vladeck's answer to this question was illuminating.

He suggested that one of the biggest leadership takeaways from the Supreme Court is the importance of collaboration and working together. He also brought up the idea of leading from dissent.

[00:30:35] Steve Vladeck: Almost all of us encounter group work in one way, shape, or form in our lives, whether it's in the workplace, whether it's in our social networks, whether it's in our child parent groups and school related groups.

I think what makes the Supreme Court to me such a fascinating institution is that these same nine people are basically locked in a building with each other for years on end, in some cases for decades on end, and have to get up tomorrow and work with each other again. This is part of why there's this remarkable predictability of the court's calendar, where the justices go away every summer because they have to or else they will lose their minds.

[00:31:08] Lindsay Chervinsky: Commit felonies.

[00:31:09] Steve Vladeck: Exactly. And the lesson there is there is value in collegiality, not as I think Justice Kagan has said a lot this year, not for its own sake, but insofar as how it allows you to be heard by your peers, that collegiality, civility are not ends, but they are are means by which we might be able to better bridge gaps.

Where the fact that, for example, Justice Scalia, Justice Ginsburg, would enjoy each other's company so much might mean that they would not be quick to jump the gun when one of them accused the other of doing something inappropriate, and they might actually hear that. I think if there's a lesson, that's the lesson to me, is that we tend to either ignore the value of collegiality and civility, or overstate it as an end. We should be civil because we should be civil. And I think Justice Kagan has been really really thoughtful on this stuff It is exactly right that the real lesson of leadership when it comes to how the justices get along that could be exported into other contexts is sometimes you lead by listening, and sometimes you lead by listening not because you're going to do the thing that you're being told and you don't want to do, but because that's how you build trust, and it's how you build respect, and it's how you build the kind of mutual appreciation that might actually give you some reason to believe your friend, your colleague, your coworker, your critic when they say something that you don't immediately agree with.

Just like faculty meetings.

[00:32:31] Lindsay Chervinsky: I was going to say, that's such a meaningful point, and then you had to add on that last very minute.

[00:32:35] Steve Vladeck: I did. Well, because the lower the stakes.

[00:32:37] Lindsay Chervinsky: Oh, that's so funny. Is there anything about Supreme Court leadership that I did not ask?

[00:32:41] Steve Vladeck: I think there's one, which is, can you lead from dissent?

[00:32:44] Lindsay Chervinsky: Oh, yes. Please say more.

[00:32:45] Steve Vladeck: So, one of the things that I think is especially visible, when you have eras of sharp ideological divisions on the Supreme Court, which by the way has not been all of them, but certainly is the one we live in today, is the specter of the perpetual dissenters, the justices who really don't have a lot of power because in the cases that matter, they're never going to have the votes.

It's not that hard to look at today's Supreme Court and think much the same about Justice Sotomayor, Justice Kagan, or Justice Jackson. And I think there are two ways in which that's not complete. One is, if you are an institutionalist, you're still gonna need the votes of the justices who are on, quote, the other side.

And so, In a world in which, for example, Chief Justice Roberts had wanted the court to speak with one voice in the Trump immunity case, he didn't, presumably, those votes still would have mattered. But the other, and this is something that, um, Professor Lani Guinier wrote so beautifully about, is there is a way that you can lead by dissenting.

You're not leading the court because you're dissenting. You're not changing the result. But she called it demosprudence , the idea that your dissents, the audience for dissents is not necessarily the justices in the majority. The audience is we, the people. And sometimes the audience is Congress, like when Justice Ginsburg dissented on the question of fair pay.

And that leading through dissent is really tricky and is very much tied up in the art of persuasion. And persuading people not only that you're right, but that it's important. And so one of the really, really small things that some of the justices do is they will pick when to read their dissents from the bench.

When the court hands down decisions, it is the exception, not the norm, that a dissent is read from the bench. But sometimes justices will read their dissents to signal, hey, this is an especially important case and my dissent is especially significant. You should pay attention to it. It's a different kind of leadership, but it's leadership nonetheless.

Because maybe the dissent provokes legislative change. Maybe the dissent animates some kind of popular pushback against the court. Or maybe the dissent sits in casebooks for 40 or 50 years until it's picked up by a new generation of lawyers who say, actually, John Marshall Harlan, the elder, was right in all of the late 19th century civil rights cases.

He was right about state action. He was right about segregation. He was right about Jim Crow. I don't know that John Marshall Harlan's ghost is especially happy that he only won 50 and 60 years later, but that's leadership too, even if it's leadership over a very long time horizon.

[00:35:04] Lindsay Chervinsky: Yeah, I think the concept of leadership for future generations and thinking about long term legacy of what you're leaving behind is one that we don't always think about in the moment, but it is absolutely worth considering.

[00:35:15] Steve Vladeck: I still teach Harlan's dissents in the civil rights cases, in Plessy, in Lochner, and Hurtado and a couple other cases, not just because some of them did become the law, but because I also think it's important for this generation of lawyers to understand that just because you've lost doesn't mean that you're losing.

[00:35:30] Lindsay Chervinsky: So I like to end on one particular question, which we're going to talk about a different Washington, in this particular question. Which is, when you think of George Washington and leadership.

[00:35:38] Steve Vladeck: Oh, yeah that guy

[00:35:40] Lindsay Chervinsky: Since we are at his house and his library what comes to mind for you?

[00:35:44] Steve Vladeck: Everything Some of this is from your own work, which I love, but what I am so struck by every time I come across Washington in some professional context is how thoughtful he was about the precedents he was setting, where he was not shy, he understood that a lot of the big decisions he had to make, he had to make, but where he also understood that he was literally writing the book that future presidents would follow.

Whether it's as big as voluntarily stepping down after two terms, which doesn't become part of the Constitution until pretty far into the 20th century, or as small as in putting down the Whiskey Rebellion, where he would have had a whole bunch of claims of executive power, he actually followed the statutes Congress had enacted to the letter.

So much so that he even goes to a Supreme Court justice and says, Hey, do I have the power to do this? Right—

[00:36:32] Lindsay Chervinsky: He did pick a very friendly one, but but nonetheless, he did follow the rules.

[00:36:35] Steve Vladeck: Yes, although I mean, first of all, he had appointed all of them, right? So he, he didn't have the risk of going to a justice he had not appointed.

[00:36:43] Lindsay Chervinsky: True.

[00:36:43] Steve Vladeck: And James Wilson was also the justice for Pennsylvania.

[00:36:46] Lindsay Chervinsky: Yeah, very good point.

[00:36:47] Steve Vladeck: What I'm struck by is not any one example of Washington's leadership. It's that it was never lost on him, just to your last point, that he was leading not just in the present, but that he was leading for future generations. And I can't imagine approaching every single choice I'm making with that historical baggage.

But he seemed to have done it. And I don't think he got all of them right, but I don't think anyone could ever argue that he did any of them without thinking.

[00:37:13] Lindsay Chervinsky: Well that is an excellent place to leave it. Thank you so much for this conversation. I could listen to you teach me about the Supreme Court all day. And I know our listeners will love it.

[00:37:22] Steve Vladeck: Thank you for having me.

[00:37:25] Lindsay Chervinsky: Thank you for joining us this week on Leadership Legacy, and thank you so much again to our guest, Steve Vladeck. Check out his newsletter, One First, at stevevladeck. com, and pick up his excellent book, Shadow Docket, now available in paperback, wherever you buy books.

I'm your host, Dr. Lindsay Chervinsky. Leadership and Legacy: Conversations at the George Washington Presidential Library is a production of the Mount Vernon Ladies' Association and Primary Source Media.

In the spirit of George Washington's leadership, we feature the perspectives of leaders from across industries and fields. As such, the thoughts expressed in this podcast are solely the views of our guests and do not reflect the opinions of the Mount Vernon Ladies' Association.

To learn more about Washington's leadership example or to find out how you can bring your team to the George Washington Presidential Library, go to gwleadershipinstitute. org. Or to find more great podcasts from Mount Vernon, visit georgewashingtonpodcast. com. You can also explore the work of Primary Source Media at primarysourcemedia. com.

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