Ask the authors: When “Machiavellian” is a compliment

The following is a series of questions on the occasion of the publication of Ronald Collins and David Skover’s “The Judge: 26 Machiavellian Lessons” (Oxford University Press, 2017). Drawing from over 200 years of Supreme Court history, Collins and Skover offer 26 lessons – e.g., how to be like Chief Justice John Marshall, how not to be like Chief Justice Roger Taney – for jurists seeking to maximize their institutional and personal powers. The rest of us may only dream of a seat on the bench, but we can learn a lot as well.

Collins is the Harold S. Shefelman Scholar at the University of Washington School of Law. Skover is the Fredric C. Tausend Professor at Seattle University School of Law. Together they have written six books on law and popular culture. Their next book, “Robotica: Speech Rights and Artificial Intelligence” (Cambridge University Press) comes this spring.

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Welcome, Ron and David, and thank you for taking the time to participate in this question-and-answer exchange for our readers. Ron, you’ve been asking questions to authors for SCOTUSblog for four years. Given that, we’re pleased to have the chance to ask you, and now David, the questions for a change.

Question: In your prologue, you “propose to explain anew law and the judicial art, much as Niccolo Machiavelli explained power and the ruling art in ‘The Prince.’” Before we get into your book, can you give a little background on Machiavelli and “The Prince”?

Collins & Skover: Machiavelli was a Florentine diplomat. In 1498 he came to power in his late 20s as secretary to the Second Chancery of the Republic. He wrote “The Prince” in 1513 to give advice to the new political leader, Lorenzo De Medici, who took command when the Republic was destroyed the year before. Machiavelli’s aim was to promote the glory of the new Florentine state and that of the new prince. He did not counsel the prince to be a mere thug; rather, Machiavelli believed that the prince must adroitly do what it takes to preserve the state, to garner honor for himself, and to avoid reckless risks. Machiavelli’s realpolitik was not for ordinary people, but for extraordinary leaders – those consequentialists who believe that there are socio-political goals that override moral norms.

What is the connection of “The Prince” to “The Judge”? Hypocrisy is a theme that is central to both books. No jurist admits to it, but many practice it. To condemn hypocrisy would be to condemn much of modern appellate judging. In writing “The Judge,” we chose to be somewhat Machiavellian ourselves. In essence, the Machiavellian maxim is: “I will tell you how the world is, rather than how it should be.” We engage that spirit of realpolitik, and in 26 lessons (the same number of lessons offered in “The Prince”), we tell the reader how the appellate jurisprudential world is, rather than how it should be.

Question: Your title and subtitle propose “26 Machiavellian Lessons” for “The Judge.” You elaborate further in your prologue:

Anyone very familiar with the workings of the Supreme Court will recognize many of the stratagems or maxims . . . set forth in our 26 lessons. By no means does this book exhaust the range of possible tactics. Nevertheless, these are among the most vital strategic lessons that famous American jurists have sometimes practiced – jurists from Chief Justice John Marshall’s time to Chief Justice John Roberts’s time.

What motivated you to write this book?

Collins & Skover: “The Judge” has been in the works for a long time, dating back to a law professors’ reading group in which we participated early in the 1990s, where we all discussed “The Prince.” Thus, we’ve had a quarter-century to ponder such questions.

When we write books, we try not to mimic other scholars. We prefer to chart our own course. And we relish the notion of launching new ideas or giving new meaning to old ones. In this book, we strove to bring Machiavellian insights into the world of appellate judging. If we are provocative, it is to spur our readers to think anew about Supreme Court jurisprudence. If we are bold, it is to refocus attention away from the myth of “neutral principles” and toward the realism of judicial decision-making. And if we appear to defend the darker sides of life and law, it is in part because we hope to shed needed light on them.

Question: Can you describe some of these lessons for our readers?

Collins & Skover:  At an introductory level, we need go no further than to recite the telling titles of several of our 26 chapters. Consider the following five examples:

• “When to Lose a Case and Win a Cause” (discussing Justice William Brennan’s Janus-like obscenity opinion in Roth v. United States)
• “In Defense of Unprincipled Decision Making” (describing Justice William Douglas’ penumbral theory in Griswold v. Connecticut)
• “How to Manipulate the Rule of Law” (examining Justice Antonin Scalia’s Second Amendment jurisprudence in District of Columbia v. Heller)
• “When Precedents Are to Be Honored (If Only Formally)” (analyzing Chief Justice William Rehnquist’s disingenuous reaffirmation of Miranda v. Arizona in Dickerson v. United States)
• “The Boldest Moves: When and How to Make Them” (focusing on the power grab in Bush v. Gore)

Of course, there is much more in the lessons presented in the remaining 21 chapters.

Question: The ultimate Machiavellian move in American jurisprudence might be the work of Chief Justice John Marshall in Marbury v. Madison. You write that “the kudos directed to John Marshall and Marbury are warranted, but not for the reasons typically given.” What’s your take on this 200-year-old-plus case?

Collins & Skover: Our Machiavellian examination of judicial history illuminates how Marshall – tagged our “greatest chief justice” – established an autonomous realm of authority for the judiciary. In doing so, he revealed himself as a true modern “prince,” a state-maker in judicial robes.

In Marbury, Marshall made several ingenious Machiavellian moves: (1) He did not recuse himself: Marshall, the Supreme Court jurist, judged a case involving his actions as President John Adams’ secretary of state when he commissioned William Marbury as a justice of the peace, a commission that Marshall’s brother James failed to deliver on time. (2) He stacked the deck by prioritizing the issues in the case: Marshall left the procedural issue of subject-matter jurisdiction to the end of the opinion so that he could first decide controversial substantive issues. (3) He launched a judicial coup d’etat: Marshall subordinated the president and his cabinet to the authority of his court, a hierarchy that had not already been established. (4) He wielded power over Congress while forfeiting power in Marbury’s politically charged case: Marshall read a federal statute to be in conflict with constitutional text (a questionable interpretation), and declared the statute to be unconstitutional. With this exercise of judicial review, Marshall could dismiss the case for lack of jurisdiction. Marshall’s stratagem: Act aggressively in one respect, while acting passively in another. He defied Congress by striking down a federal statute, but appeased the executive by claiming no authority to give Marbury a remedy and issuing no order against President Thomas Jefferson.

Chief Justice John Marshall was the master craftsman of the judicial art. In an informed and cunning fashion, he outmaneuvered the president, trumped Congress, empowered the Supreme Court, and secured a lasting legacy for himself and for the institution of judicial supremacy.

Question: “If a jurist aspires to power and greatness,” you write, “such a judge would be well served by studying the career of [Justice Oliver Wendell] Holmes and how he first breathed his own life into the law, which in time breathed life into his lasting legacy.” Can you explain how Holmes “in many important ways personifies The Judge”?

Collins & Skover: Where do we begin? First of all, and as we discuss in chapter 16, Holmes realized the importance of writing: An elegant phrase can influence minds even when an argument’s logic might not. Second, and unlike the current practice, Holmes wrote his own opinions and did not rely on young clerks to do what they could not – be nuanced and clever. Third, he essentially encouraged the bright young men around him (the Harvard and New Republic crowd) to praise and disseminate his jurisprudential message. Thanks to the likes of Zechariah Chafee and Justice Felix Frankfurter, that hagiography continued for decades by way of articles and books (and even a 1950 movie). We could say more, but will leave the discovery to our readers.

Question: As part of your first lesson, you write of Justice Neil Gorsuch’s confirmation process: “When sympathetic Republicans asked him easy questions he was affable and judicious, whereas when Democrats asked him tough questions he was calm yet evasive. Time and again he dodged critical questions, but with a smile.” Of the 25 lessons that follow, which do you think Gorsuch most needs to learn?

Collins & Skover: Let us start by saying that Gorsuch is a learned jurist. And as his confirmation hearings revealed, he is both amiable and astute, which has served him well. To be successful on the Supreme Court, however, he will need more. First and foremost, he must have the will to greatness. Next, if he is to be an effective Machiavellian jurist, he will need to be artful in matters ranging from what he writes to how he writes, from when he is in the limelight to when he is invisible, and from when he is principled to when he merely appears so. Moreover, he should take care to avoid unnecessary risks (e.g., those that make him appear partisan). And he must seize any opportunities chance might offer him.

Of course, because he is an honorable jurist, Gorsuch will surely contest such counsel and turn to  “The Judge” if only to know how to guard against Machiavellian tactics employed by others.

Question: You praise some of the current justices – notably Chief Justice John Roberts for his opinion in McCullen v. Coakley, an abortion-clinic protest case, and Justice Anthony Kennedy for his opinion in Obergefell v. Hodges, which held state bans on same-sex marriage to be unconstitutional. Of the current justices, who most personifies The Judge?

Collins & Skover: While the chief justice is worthy of our praise as we portray him, he, too, has made a few blunders when judged by Machiavellian norms. For example, by being on the wrong side of history in Obergefell and Shelby County v. Holder (a voting-rights case), the chief justice unnecessarily jeopardized his legacy. Even so, judging by his vote in Pavan v. Smith (reaffirming Obergefell) he may have realized the error of his ways in Obergefell. Perhaps.

Like his predecessor and former boss Rehnquist, if Roberts keeps his eye on the long view and acts accordingly, he may yet claim a glorious place in our judicial history. Among other things, if fate plays out a certain way, the chief justice might find himself to be the new swing vote on the Supreme Court – one with the ability to assign opinions whenever he is in the majority. Were this to occur, Roberts would be positioned to wield great power.

As for Kennedy, he must take care (especially if he plans to retire soon) that his liberty legacy — Lawrence v. Texas, Romer v. Evans and Obergefell v. Hodges – remains intact and largely beyond the reach of the counter-forces at work in cases such as Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Question: I won’t ask you which justice you think least personifies The Judge – although I’m all ears if you want to tell me. Which lesson do you think the justices as a group would do best to learn?

Collins & Skover: If by your first question you mean the jurist who is least effective on the Roberts court, we are tempted to vote for Justice Stephen Breyer, though it is a close call. Clearly, the justice is learned, congenial and decent. Even so, he does have his tactical flaws, which he may take as a compliment. For one thing, he is far too verbose in oral arguments; his runaway hypotheticals, for example, are unwieldy, which reduces his effectiveness. His books, although marginally interesting to the public and practitioners, pale in impact and influence when compared to Scalia and Bryan Garner’s “Reading Law: The Interpretation of Legal Texts.” Additionally, and comedic appeal aside, little was gained when Breyer appeared on The Late Show with Stephen Colbert. It is questionable how, if at all, that interview generated interest in Breyer’s “The Court and the World.” Beyond Breyer, more is said on how to be an effective justice in chapters 4, 9, 11 and 22 of our book.

As for your “group” question, “The Judge’s” lessons are calculated to permit an individual justice to gain an advantage over his or her colleagues. By that measure, there can be no group lesson. But if such advice could be given, it might be by way of A.K. Tolstoy’s adage: “When on the cage of an elephant you see the inscription ‘buffalo,’ don’t believe your eyes.”

Question: You suggest that the justices’ opposition to cameras in the courtroom could give an opportunity to a justice willing to express support for that innovation: “Given the inevitability of cameras in the high Court, all that matters is that Justice X is viewed as the prophet of progress. And to that end, she can always rely on the media for enthusiastic and ongoing support.” Any sense of which justice may take you up on that?

Collins & Skover: During their confirmation hearings, some of the current justices indicated that they might be open to the idea of televising the court’s proceedings. Since then, however, none of them has expressed any interest in going there. As we note in chapter 21, both Justice John Marshall Harlan II in 1963 and Supreme Court practitioner and SCOTUSblog publisher Tom Goldstein in 2011 have noted the inevitability of cameras in the high court. If but one of the justices were to break ranks (on the right occasion, at the right venue and in a judicious manner), time would be on his or her side. Think of it as an opportunity waiting to be seized.

Question: Machiavelli didn’t publish “The Prince” during his lifetime, but I take it you hope to reach an audience larger than the nine justices, ambitious former clerks, and wily appellate judges. What are some takeaways for “regular” readers?

Collins & Skover: In some significant respects, “The Judge” has different lessons for different readers. It is not by any measure a “one size fits all” kind of book.

That said, let us pick one group of readers by way of an example – law professors. If nothing else, we hope our book encourages them to abandon their hackneyed debates over methods of constitutional interpretation. Enough! Such shell games must be seen in the light of realism, of realpolitik. They must be viewed for what they are: cunning techniques by which one can be partial while claiming to be impartial. One must not (as any skilled appellate lawyer does not) place too much stock in such malleable creeds unless they can be manipulated to one’s advantage.

Question: Here’s your conclusion to the book: “Our work done, we now return to the quiet of our own perch and behold the judicial world as it turns on the axis of power. We watch the wonder of it all from a safe distance.” Has your view of the judicial world changed as a result of researching and writing this book? If so, how?

Collins & Skover: Our general sense is that, with each passing year, Supreme Court decision-making involving certain hot-button social issues has become ever more partisan, politicized, disingenuous and disturbingly quarrelsome. Too often, judicial minds are already made up, thus rendering the decision-making process little more than a rigged formality.

Partisans on both sides sit righteously on their high horses and condemn their adversaries’ opinions as “unprincipled.” Much of that is echoed by legal academics. We grew weary of such hypocritical posturing; hence, we elected to “out” it. Our hope (or at least one hope) is that “The Judge” will reframe that judicial review/judicial activism debate in more honest and salutary ways. Of course, if that does not occur, the door remains wide open for the Machiavellian justice to step in and seize the opportunity, drawing as he or she might on our 26 lessons.

Meanwhile, and as you noted, we view it all from a “safe distance.”