Commentary: Order on the court

Jeffrey Rosen

is president and CEO of the National Constitution Center

A hundred years ago, on June 1, 1916, Louis Brandeis was confirmed as an associate justice of the Supreme Court. One hundred and twenty-five days elapsed between his nomination and confirmation - the longest period any nominee has waited in American history. (Merrick Garland will surpass this record in July.)

The long delay in Brandeis' confirmation reflected the controversy he had inspired as the crusading "People's Attorney," who made his name by attacking financiers such as J.P. Morgan, who took reckless risks with what Brandeis called "other people's money."

One of the leading opponents of Brandeis' confirmation was former President William Howard Taft, whom Brandeis had embarrassed in a highly publicized congressional hearing. Taft called Brandeis "a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite," and "utterly unscrupulous."

Nevertheless, after Taft was appointed chief justice in 1921, he graciously buried the hatchet. Taft was a highly successful chief justice because he ultimately persuaded Brandeis and other dissenting justices to join him in a series of unanimous decisions.

Taft later reported that "Brandeis and I are on most excellent terms and have some sympathetic views. . . . He can not be any more cordial to me, than I am to him, so that honors are easy." Brandeis reciprocated Taft's good feelings, reporting that all went "happily in the conference room with Taft. . . . When we differ we agree to differ without any ill feeling. It's all very friendly."

Taft's model in persuading Brandeis to join unanimous opinions was his hero, the great Chief Justice John Marshall, who was confirmed to the Supreme Court 215 years ago. Marshall became the most successful chief justice in history because of his ability to win over justices appointed by his ideological opponent Thomas Jefferson through compromise and leadership.

Marshall and Taft were ultimately successful because of their willingness to compromise - by putting a premium on unanimity and filing few dissents - Marshall wrote only seven dissents in 34 years, only one of which involved the Constitution; Taft wrote 20 dissents in total. As a result, they were able to persuade their colleagues to join their shared vision of broadly construing national power and property rights.

At the same time, Marshall and Taft were aided by the moderation and compromises of their ideological antagonists - Jefferson acquiesced in Marshall's moderate conception of judicial review because of his bipartisan belief that "we are all Republicans, we are all Federalists." And the Jeffersonian Brandeis often acquiesced in Taft's vision of unanimity because of their shared concern that the court be perceived to be above politics.

What lessons do the unexpected alliances between Taft and Brandeis and Marshall and the Jeffersonian justices hold for us today? In fact, they can teach us a great deal.

Soon after his confirmation in 2005, Chief Justice John Roberts embraced John Marshall as his model and pledged, like Marshall, to try to persuade his colleagues to join him in narrow unanimous opinions. During the last 11 years, Roberts has had mixed success in achieving this goal - in part because not all of his colleagues shared his commitment to unanimity and consensus.

But with the death of Justice Antonin Scalia, the dynamics of the court have changed. In a series of recent decisions - most notably involving nuns who objected on religious grounds to providing contraceptive coverage under the Affordable Care Act - the court has indeed issued narrow, unanimous opinions that encourage both sides to seek compromise.

As several commentators have noted, the court's new taste for unanimity may reflect the fact that justices on both sides are more inclined to seek compromise now that the alternative is a 4-4 split that would affirm the lower-court decision without definitively resolving an issue. The question is whether this newfound consensus will continue once Scalia is eventually replaced.

The example of Taft and Brandeis suggests that it can and it should.

The rate of dissenting opinions began to rise in the 1940s under Chief Justice Harlan Fiske Stone, a former dean of Columbia Law School, who was more interested in promoting debate than encouraging consensus. The appointment of highly polarizing justices by Franklin Roosevelt and later presidents accelerated this trend.

But now that Roberts has given his colleagues an opportunity to experience the benefits of unanimity, perhaps they will conclude in the future that it's in their interest to win in most cases with a narrow unanimous opinion rather than rolling the dice and risking a 5-4 defeat. Of course, the outlook of Scalia's successor will be crucial to this calculus: Will he or she be an institutionally minded justice, in the tradition of Louis Brandeis, who is willing to put the court's interest above a personal ideological agenda?

Brandeis himself would have expected no less. As he put it, "If we would guide by the light of reason, we must let our minds be bold."

Jeffrey Rosen will speak about his new book, "Louis D. Brandeis: American Prophet," at 6:30 p.m. Wednesday at the National Constitution Center.