Starting with the latter, Jeff Rosen in this Sunday Times Magazine noted that our history has given us chief justices that have been able to achieve high levels of cooperation among the justices and those who have failed utterly in that task. To speak only of our last four chief justices, the vote is strongly positive for two and strongly negative for two others. Fred Vinson, who could not rule over a fractious Court on segregation, counted as a clear failure as chief, as did Warren Burger whose vanity and self-importance got in the way of every institutional responsibility. But Earl Warren, who pulled the Court together on Brown v. Board of Education, and William Rehnquist himself weren’t failures because they had the temperament needed to hold the Court together. Each could express leadership in his own way, and neither used the power of the chief’s position to achieve some short-term advantage of any key substantive issue that came before the Court.

It seems clear that on that key question of temperament, Roberts is a superb choice to fill the position. Smart and funny, he is also self-effacing. I have not heard anyone who knows him say a harsh word about him. And he did have the great advantage of working with Rehnquist (when Rehnquist was an associate justice) to see how the pomposities of a bad chief justice could sour the disposition of an entire court.

There is also a second lesson that can be learned. The success of a chief justice does not depend on his holding views that place him in the center of the Court. Warren was able to be effective from the left and Rehnquist from the right. Rosen, I think, was wrong therefore to wonder aloud whether Roberts has the “moderation, pragmatism and flexibility” to do the job. Not so. The chief justice who knows the limits of his role will do just fine, and indeed will gain more respect, if he holds true to whatever constitutional principles he finds most persuasive. Roberts should just be his own man.

And what kind of man will that be? In one sense that will be hard to guess because he rightly bobbed and weaved when he answered particular questions. But there are clear signs about judicial temperament as well. Any one who likes the phrase “settled expectations” is not likely to prove erratic or extreme in his judgments. The criticisms raised of Roberts have to do with how he would decide cases that call into questions doctrines that have already been decided by the Court. But that seems to be the wrong perspective on which to evaluate. What really matters in many cases is the intellectual attitude that he brings to the novel issues that are sure to come before the Court. All that anyone can ask is that he have an open mind, which I thought he did, even before he said he did.

Indeed, my concern about Roberts as a justice is the opposite of that expressed by many of his doubters. I am not sure that he has a strong judicial philosophy that could help guide him through the difficult shoals that lie ahead. As a practicing lawyer, his natural tendency was to think about narrow and safe grounds on which to argue a case, without rippling the waters. That is just right for lawyers who have clients’ interests and stake, but it is less likely to prove successful for the judges who decide great cases. I am no fan of constitutional minimalism because it gives no information about the long-term features of our constitutional heritage that are worth preserving. It just assumes something nice about (parts of) the status quo, without asking how well they fit in within our powerful constitutional tradition, which succeeds because it recognizes that we have to learn to distrust the government that we have to support and protect.

The great crises before the Supreme Court are likely to come in cases as yet unknown where someone has courage enough to break the mold, and creative enough to know how best to do it. In dealing with these matters, I hope that Roberts proves himself to be an independent man of principle. His new role is different from any other that he has filled. In the end, choosing or confirming any nominee require us to make a leap of faith. With Roberts, the odds are far better than we had any right to expect. Good luck and God’s speed.