Customer Reviews

The Supreme Court: The Personalities and Rivalries That Defined America

5 star:		(10)
4 star:		(10)
3 star:		(6)
2 star:		(0)
1 star:		(1)

 

 

This is the "companion" volume to the recent PBS series on the Court, but it is very different from that program. The author, Jeffrey Rosen, is a Professor of Law at George Washington University here in Washington, although he also writes for "The New Republic" and other prominent magazines such as "The Atlantic." Rather than exclusively focusing on case development, as the PBS series pretty much does, Rosen rather concentrates on developing a focus on the "temperament" of various Justices (and President Jefferson) and how their temperamental outlooks and characteristics affected the activities of the Court. The book is built around four chapters, each of which juxtaposes two individuals, who Rosen argues had substantially different temperaments: Marshall and Jefferson; Harlan I and Holmes; Black and Douglas; and Rehnquist and Scalia.

Rosen's focus on temperament is both helpful and, on occasion, a problem. It is helpful because it reminds us of a fact too often overlooked when reading Supreme Court history: for all their lofty status, the Court is still a small group of strong-minded individuals with healthy egos who have contrasting goals and persuasive techniques, but remain fundamentally just humans with all their frailties. So, they can lose their tempers, get alienated, lash out, suffer emotional hurt, and so forth just like the rest of us. Just as in his previous book, "The Most Democratic Branch" (also reviewed on Amazon), Rosen is extremely skillful in explaining legal concepts and Court holdings in such a way as to make them easily understood by the general reader. The problem with his approach is that he must juxtapose individuals to make it work, and I found myself disagreeing to a certain extent with his portrayals of certain folks (Holmes, especially, Jefferson somewhat less so, and William O. Douglas a bit), which seemed strained in order to give some zip to his discussion. Conversely, I found him too sanguine in evaluating others, such as Rehnquist and even Black to a certain extent. But these are issues that can be argued incessantly.

One of the most valuable sections of the book is the conclusion, which is largely devoted to a fascinating interview of Chief Justice Roberts after his first year heading the Court. At 258 pages, including notes, the text moves alone nicely, and only on occasion does Rosen get too immersed in detailed legal analysis as to cause difficulties for the general reader. I found the Rehnquist-Scalia and the Black-Douglas chapters to be the best--but this is not to slam the other two chapters. There are some great illustrations and helpful notes, but no bibliography. A good, solid treatment for the general reader.

It's one of the fundamental principles of the U.S. Constitution that the three branches of government are more-or-less equal, with checks and balances assuring that no branch takes over. The reality, of course, is different: at times - particularly in the 1800s - the Congress was the more powerful branch, while at other times -especially recently - the Presidency has taken the reins. The judicial branch, however, has always been in third place; although it makes a difference at times, it rarely is more visible than its "coequals". Nonetheless, there are times that the judicial branch - and in particular, the Supreme Court - has assumed a critical role in history.

Jeffrey Rosen's The Supreme Court is not so much a history of the institution as a study as to how certain personalities affected the Court. He focuses on four such rivalries that dictated not only the direction of the Court but also the direction of the country. The first rivalry (and the only one featuring a non-Court figure) is Thomas Jefferson and John Marshall. These two embodies the two principal political philosophies of the early United States: Republicanism and Federalism. Unlike previous Chief Justices, Marshall really defined the Court and made it an important part of the government, most notably with the Marbury v. Madison decision. Since Marshall differed with Jefferson on many issues, this set the two branches at odds with one another.

The next rivalry is John Marshall Harlan and Oliver Wendell Holmes, Jr., a pairing that is probably the most obscure to the modern reader. Holmes, with his nickname "The Great Dissenter" earned a reputation based on his dissents in some free speech cases, but often had much less sympathetic rulings, such as his opposition to civil rights and his support of eugenics. Harlan, on the other hand, was more forward-thinking, and notably dissented on Plessy v. Ferguson, the Court decision that - after Dred Scott - is probably the darkest mark on the institution's history.

The third section deals with Hugo Black and William Douglas. Unlike the previous pairings, these two were politically of a similar bent, but they still had different judicial philosophies, with Black being the sounder reasoner and Douglas being somewhat more free-wheeling. Douglas's presidential ambitions, which never really amounted to much, also affected his decision-making. Similarly, the fourth section deals with two Justices with similar politics yet different philosophies: William Rehnquist and Antonin Scalia. While Rehnquist would often try for consensus, Scalia is more absolute in his beliefs and doesn't really seem to care who he rankles.

In each pairing, Rosen casts one person as hero (Marshall, Harlan, Black and Rehnquist) and one as villain (Jefferson, Holmes, Douglas and Scalia). Of course, things are not really that simple and Rosen recognizes flaws in the heroes and virtues in the villains; perhaps it is better not to use the heroes-and-villains analogy at all, but it is clear Rosen favors one in each rivalry. This has less to do with politics than with technique: Rosen favors Justices who can promote harmony within the Court and can create rulings with real potency to them. Rulings that go 5-4 are not nearly as strong as those decided unanimously, and are more likely to be eventually reversed.

In the final section, Rosen offers an early analysis of new Chief Justice John Roberts, one that is generally positive. Roberts, Rosen believes, seems to have learned from the better Chief Justices (a group in which Rosen would include Marshall, Warren and Rehnquist) as to how to run the Supreme Court. Rosen's writing is insightful, clear and reasonably objective (in the sense that he doesn't seem to favor either the political right or left). This book is a good, alternative way at looking at the history and structure of the Supreme Court.

America's fascination with the law has been a long-standing love affair that traces its roots to an era before the birth of the nation. Although many seem to think that attraction to the law is a recent phenomenon born of television and 24-hour news, history tells a different story. As far back as the early 18th century and the trial of John Peter Zenger, the U.S. has been enthralled by courtroom battles. While television coverage magnified cases such as Terry Schiavo and O.J. Simpson, other moments in history such as the Scopes Monkey Trial and the trial of Fatty Arbuckle were the focus of equally intensive media scrutiny.

Americans love the law, but many citizens lack knowledge of the operation of one significant legal institution: the United States Supreme Court. Indeed, more of us recognize Judge Judy than the nine current sitting justices. The Court itself contributes to the mystery of its operations by a long tradition of cloistered behavior. Little by little, more information about its workings and personalities seem to be coming into the public eye.

THE SUPREME COURT: The Personalities and Rivalries That Defined America, by Jeffrey Rosen, is a companion book to an important four-hour television series on the Supreme Court produced by WNET in New York. Knowing how the Court was created and how it operates helps make the institution more understandable and relevant.

Rosen, a professor of law at George Washington University and a reporter for The New Republic, examines four pairs of influential personalities who shaped the Court. Chief Justice John Marshall and President Thomas Jefferson had contrasting visions on what political role the Court should play as our nation grew. Justices John Marshall Harlan and Oliver Wendell Holmes represented divergent views on the relationship between minority rights and majority rule. Justices Hugo Black and William Douglas were both liberal advocates in the Warren Court era. Finally, Chief Justice William Rehnquist and Antonin Scalia were conservative jurists with far different approaches to building consensus on the Court.

As he frames the debate and analyzes these figures, Rosen cements a point essential to understanding the Supreme Court. It is far more than legal scholarship and judicial philosophy that shape the Court --- it is the personality and interaction of the individual members at a specific moment in history that created the institution that to this day remains an exciting and critical cog in the workings of American government.

THE SUPREME COURT is not a scholarly work of jurisprudence and does not claim to be. In some ways it reflects the central point of its author that the Court is more than legal books, lawyer's briefs and judicial opinions. Rosen ends his book with an enlightening and illuminating interview with the nation's newest Chief Justice, John Roberts. Chief Justice Roberts very well may represent a generational change in the workings of the Court. He seems to understand that the Supreme Court in the 21st century must begin to accommodate modern technology. More significantly, he appreciates the history of the position he occupies and the importance of his task as Chief Justice.

Rosen concludes that Roberts recognizes "The Court has best served itself and the nation when the individual justices have been willing to subordinate their own interests and agendas in the interest of building judicial consensus and institutional legitimacy." The Chief Justice's legacy will depend upon his ability to lead the Court towards that goal. Rosen, an astute observer of the Supreme Court, and every citizen who cares about what is at stake will be watching.

--- Reviewed by Stuart Shiffman

For a look into some of the most well known figures in the Supreme Court, this book does a fantastic job. From in-depth analysis of their personalities to little anecdotes on each Justice, the Author clearly knows his history.

It's a tad short, and I think the specific cases could have been covered in greater detail. While it was informative, it didn't have that something special that had me anxious to keep reading. At times, I felt like I was reading a history book.

If you're someone looking to get some background into the Supreme Court and some of the characters that shaped it, this is a good book to start with. You may not feel completely entertained, but you will feel smarter after reading this book.

Jeffrey Rosen's accessible and engaging companion book to the PBS series offers not only a fine introduction to the U.S. Supreme Court (and many of the most important cases it's decided in its history) but also a perspective from which to understand the Court as an institution. This perspective is tantamount to Rosen's thesis: that "judicial temperament" is a quality possessed by the Court's most distinguished justices, those who subordinate their ideological leanings to the deliberative and practical process of establishing legal consensus.

Rosen illustrates his thesis with four case studies: Marshall and Jefferson (not a justice); Harlan and Holmes; Black and Douglas; Rehnquist and Scalia. In each case one justice is seen as embracing judicial temperament while the other (or Jefferson, in the first chapter) is cast as something of an ideological maverick, a flamboyant but ultimately less influential constitutional thinker. Like one reviewer here, I found the questions raised by such pairings to be productive rather than reductive: Rosen is making a legal-historical argument here, and so reading his history of the Supreme Court is necessarily an exercise in critical interpretation.

The chapters on the twentieth-century Court are excellent, with Rosen showing how the liberal-leaning Hugo Black and the conservative-leaning William Rehnquist had more in common with each other (in terms of judicial temperament) than with their respective colleagues: William O. Douglas and Antonin Scalia. Here Rosen parses the legacies of Black and Rehnquist by showing how their restrained judicial character helped them produce well-crafted decisions that advanced the Court's legitimacy in the public eye.

Douglas and Scalia, on the other hand, were/are so committed to the purity of their ideological beliefs that, whatever one thinks of their individual decisions (and I am decidedly aligned with Douglas over Scalia in this regard), one has to come to terms with the fact that their jurisprudence will not have a lasting influence on the law of the land. Douglas and Scalia are seen as larger-than-life personalities, self-aggrandizing justices who rarely spoke for the Court as such.

Again, you might agree or disagree with the specifics of Rosen's argument and framing of his historical examples. But the survey presented here is a solid, general introduction to Supreme Court history. And with judicial temperament Rosen gives us a lens through which we might view that history, and understand better exactly how the Court works.

I found this account of the Supreme Court far less engaging than "The Nine". Rosen's main point - that judicial temperament determines success on the court, in the sense that justices who work well with others have more influence - hardly qualifies as an earth-shattering insight. But it causes him to adopt an awkward structure for the book, sorting through history to pick pairs of judges, who are then analyzed in a series of artificial head-to-head comparison. The result seems forced, and not particularly illuminating.

Rosen may have thought it a coup when he scored the in-depth interview with the new Chief Justice Roberts that rounds out the book. But it's basically a string of banalities, wherein Rosen seems like nothing more than a mouthpiece for Roberts's insubstantial, Pollyanna-ish platitudes. The effect is to undermine any credibility Rosen might have built up in the preceding chapters.

But how much respect does this kind of writing really deserve, anyway?

"If the pairings of judicial temperaments in this book suggest anything, it is that courting attention and partisan approval in the short term is no guarantee of judicial respect in the long term. In each of the pairings, there have been consistent tropes. The brilliant academic is less appealing over time than the collegial pragmatist. The self-centered loner is less effective than the convivial team player. The resentful braggarts wear less well than the secure justices who know who they are. The narcissist wields judicial power less sure-handedly than the judge who shows personal as well as judicial humility. The loose cannons shoot themselves in the foot, while those who know when to hold their tongues appear more judicious. (On the court, a justice often achieves more by saying less.) The ideological purists are marginalized, while those who understand when not to take each principle to its logical extreme are vindicated by history. Those who view cases in purely philosophical terms are less sure-footed than those who are aware of the cases' practical effects. Those with the common touch win broader support than those who live entirely in abstractions".

An author who indulges in eight consecutive repetitions of the same point (i) needs a better editor and (ii) must not have a very high opinion of his readers. This book was not terrible, but it wasn't very good either.

Rosen's book is not unlike the work of Joseph Ellis ("American Sphinx", "Founding Brothers"), in that it focuses largely on character as a force in the development of the court. Rosen pairs various players (Black and Douglas, Rehnquist and Scalia) and the contrasts are revealing. But after awhile, it's pretty obvious which side Rosen is going to come down on as he moves from Marshall's era to Harlan's, and so on toward the end. Still, the book is an entertaining and informative read, a neat summary of where the court has been and how it got there. Perhaps more important, Rosen deftly delineates the core issues involving the interpretation of the Constitution, from the pragmatists to the strict constructionists, and everyone in between. Although Bob Woodward's "The Brethren" is a much deeper look at the Court (notably, Burger's), Rosen's book is a useful place to start.

Rosen has written an entertaining study of the Supreme Court that is organized in an interesting fashion by contrasting four sets of comtemporary jurists in four different eras. He ends with an excellent interview with Chief Justice Roberts, who stresses the need for the Court to act like a collegial body and to do so by trying to write unanimous opinions in small cases. Collegiality and consensus can become a habit, Roberts points out.

I question Rosen's criticisms of Holmes and his unvarnished admiration for the first Justice Harlan, as well as for Justice Black. To dismiss Holmes as someone who viewed law as politics by other means is simply wrong. Holmes was not that cynical, and his academic writing is perhaps the finest expression of mainstream American legal philosophy. And Holmes was a more successful Justice than Rosen is willing to concede. As for Harlan, his dissent in Plessy v. Ferguson was terrific, and his story is quite interesting. But to say he was, on balance, a better exemplar for the judicial temperament than Holmes is a reach. The younger Harlan, by contrast, was a truly great jurist whose opinions are universally admired. Black has lost some of his luster (at least among liberals), as his originalist school of interpretation is not sustainable. The Founding Fathers intended great and general priciples which have to be applied in changing contexts that could not possibly have been specifically foreseen. I don't think that an automatic assault rifle is necessarily within the right to bear "arms", and a narrow linquistic study of what "arms" meant in 1790 does not advance the inquiry very much. The question is how to achieve the balance between government regulation and individual freedom that was clearly intended by the text and the history of the Second Amendment and of the Constitution as a whole.

As for the Rehnquist vs. Scalia discussion, I've read a generation of Rehnquist opinions, and he was a right-wing judicial activist who did not do an exceptionally good job of crafting his opinions. Although he compares favorably with Scalia, so what? When Judges like O'Connor and even Rehnquist are described as "liberal", or "moderate", or "centrist" it just goes to show how far right the Court has moved.

As for Rosen's emphasis on judical temperament, it is certainly important. But no discussion of the Court is complete without an inquiry into underlying judicial philosophy and the ability to express it well in written opinions. However entertaining, the emphasis on personalities and judicial temperament is overdone.

An excellent book. If I were still teaching Constitutional Law at the college level, I would use some or all of it in class to show that law is interpreted by "real people." I think anybody would find it interesting, but lawyers and law students should find it fascinating.

When the founding fathers were setting up the American triangle form of government I wonder just how they envisioned the systems working.

Could they have envisioned the congress as being a group of people constantly campaigning for re-election, building a thousand pork barrel projects into legislation clearly intended for something else, a tax code -- well never mind.

Did they envision a court system that had lifetime tenure so that it could approach problems too sensitive for politicians to handle. Problems like civil rights or just recently the Terri Schiavo case.

The book looks at the court in terms of people, it is after all a human institution. It looks at how Presidents have attempted to stack the court with their liberal or conservative view and how the court seems to take many of these people and mold them into deeper thinkers.

Perhaps the most interesting chapter is the last where he looks at Chief Justice Roberts and the future of the Roberts Court. It's a court we all will be watching.