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"Superbly well written . . . a wonderfully informative guide to the Supreme Court both past and present."―David J. Garrow, American History
Jeffrey Rosen recounts the history of the Supreme Court through the personal and philosophical rivalries that have transformed the law―and by extension, our lives. With studies of four crucial conflicts―Chief Justice John Marshall and President Thomas Jefferson; post–Civil War justices John Marshall Harlan and Oliver Wendell Holmes; liberal icons Hugo Black and William O. Douglas; and conservative stalwarts William H. Rehnquist and Antonin Scalia―Rosen brings vividly to life the perennial rivalry between those justices guided by strong ideology and those who cared more about the court as an institution, forging coalitions and adjusting to new realities. He ends with a revealing conversation with Chief Justice John Roberts, who is attempting to change the court in unexpected ways. The stakes, he shows, are nothing less than the future of American jurisprudence.
- Sales Rank: #98536 in Books
- Published on: 2007-12-26
- Released on: 2007-12-26
- Original language: English
- Number of items: 1
- Dimensions: 8.00" h x .65" w x 5.25" l, .54 pounds
- Binding: Paperback
- 288 pages
From Publishers Weekly
In his second book this year (after The Most Democratic Branch), Rosen examines how temperament and personal style shape decision making at the U.S. Supreme Court. The author, a law professor and legal affairs editor at the New Republic, profiles four pairs of contrasting personalities: President Thomas Jefferson and Chief Justice John Marshall; Justices Oliver Wendell Holmes and John Marshall Harlan; Justices William O. Douglas and Hugo Black; and finally Justice Antonin Scalia and Chief Justice William Rehnquist. Jefferson, Holmes, Douglas and Scalia are Rosen's exemplars of judicially counterproductive temperaments: they are ideologues, too invested in promoting the purity of their ideas to exert long-term influence on constitutional law. Far more persuasive for Rosen are Marshall, Harlan, Black and Rehnquist, distinguished by collegiality, willingness to compromise and subordinate their own agendas to the prestige of the Court. Most of the book consists of anecdotes about these eight judges, along with summaries of their most celebrated decisions and brief but perceptive explanations of their judicial philosophies. All this is entertaining, although it dilutes the book's stated focus on judicial temperament. Considering today's Court, Rosen believes Chief Justice Roberts will display a successful talent for consensus-building. As Rosen is well aware, a lot rides on the accuracy of this prediction. (Jan.)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.
About the Author
Jeffrey Rosen is a professor of law at George Washington University and the legal affairs editor of The New Republic. He is the author of The Most Democratic Branch, The Naked Crowd, and The Unwanted Gaze. His articles have appeared in many publications, including The New York Times Magazine, The Atlantic Monthly, and The New Yorker. He is a frequent contributor to National Public Radio and lives in Washington, D.C.
Excerpt. © Reprinted by permission. All rights reserved.
Introduction
On April 8, 1952, to prevent an imminent steelworkers’ strike that he thought would cut off the flow of guns to U.S. troops in the middle of the Korean War, President Harry S. Truman decided to use his authority as commander in chief to seize the nation’s steel mills. His decision would provoke more criticism than any other in his presidency. But Truman had been emboldened to act in part because of confidential advice from Chief Justice Fred Vinson, whom Truman had appointed to the Supreme Court in 1946. When Truman informed Vinson in advance of his intention to seize the steel mills, the chief justice assured his friend the president that the seizure would be legal under his executive powers and that a majority of the Court would support it. Vinson’s advice turned out to be wrong. In June, two months after the president issued his executive order, the Supreme Court declared in Youngstown Sheet & Tube v. Sawyer that Truman had acted unconstitutionally. Writing for a 6–3 majority, Justice Hugo Black declared that the Constitution gives Congress, not the president, the power to make laws, and Congress had refused to authorize this heavy-handed approach to settling labor disputes. Black read his opinion for the Court from the bench. "Even though ‘theater of war’ be an expanding concept," he drawled in his calm and deliberate southern accent, "we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production." Although an ardent Democrat as well as a former senator, Black revered the institution of the Supreme Court as something larger than the individual justices who composed it, and masterfully persuaded a majority of his colleagues to enforce the limits that the Constitution places on the president’s power. Vinson filed a sputtering dissent insisting that any president worthy of the office should be free to take emergency measures necessary to ensure the "survival of the nation." Truman was understandably livid at his rebuke by a Court that had been appointed entirely by him or by his Democratic predecessor, Franklin D. Roosevelt. But Black soon made amends by inviting the aggrieved president and the entire Court over to his house in Alexandria, Virginia, for bourbon and a barbecue. As the canapés were passed around, the mollified Truman declared, "Hugo, I don’t much care for your law, but, by golly, this bourbon is good."1
Fifty-four years later, a similar drama unfolded at the Supreme Court. President George W. Bush, seeking to protect the nation after the terrorist attacks of September 11, 2001, issued an executive order creating special military commissions to try suspected enemy combatants who were being held at Guantánamo Bay. His decision, combined with other assertions of unilateral presidential power to authorize something close to torture or indefinite detention of suspected terrorists, provoked more criticism than any other in his presidency. Bush had been emboldened to act in part because his legal advisers had assured him that unilateral action would be upheld as constitutional under his powers as commander in chief, and also, perhaps, because the chief justice he had recently appointed, John G. Roberts, Jr., had sustained Bush’s action as an appellate judge. When the Supreme Court heard the case in 2006, Roberts properly recused himself because of his earlier participation in the case, but Bush still had reason for optimism: seven of the nine justices were Republican appointees, including an associate justice appointed by Bush, Samuel A. Alito. In Hamdan v. Rumsfeld, however, by a vote of 5–3, the Supreme Court held that the president’s military commissions were illegal. In his opinion for the Court, Justice John Paul Stevens emphasized that the president could create military commissions only with congressional support, and Congress had refused to give Bush the power to create the military commissions at issue in the case. In an emotional dissenting opinion, which he read aloud from the bench (only the second time he has done so in his fifteen years on the Court), Justice Clarence Thomas declared that the majority had endangered the nation by "sorely hamper[ing] the President’s ability to confront and defeat a new and deadly enemy." Thomas, like Vinson, insisted that the president’s inherent authority as commander in chief was broad enough to allow him to act unilaterally in times of war.
The impassioned performances by two justices—Black in 1952, Thomas in 2006—open a window onto the Supreme Court. In many respects, the similarities between Black and Thomas are striking. Both were appointed young to the Court by a president who relished the opportunity to put a stick in the eye of his congressional opponents. Black, a southern white liberal, was Franklin D. Roosevelt’s first appointment after his bitter defeat over expanding the Court’s membership in 1937; Thomas, a southern black conservative, was George H. W. Bush’s choice to replace the civil rights icon Thurgood Marshall in 1991. Both had been on the Court for exactly fifteen years when these cases about presidential power in wartime came before them—long enough to accustom themselves to the Court’s peculiar rituals and to find their jurisprudential voices. And both men considered themselves strict constructionists and constitutional fundamentalists who refused to enforce rights that did not appear explicitly in the Constitution and believed that the constitutional text should be construed in light of the original understanding of its framers and ratifiers.
Despite these similarities in background and judicial philosophy, Black and Thomas differed in one crucial respect: judicial temperament. Black revered the institution of the Court so passionately that when he proposed marriage to his secretary, Elizabeth (six years after the death of his first wife), he made a little speech about how he had been having a love affair with the Court for almost twenty years, and therefore she had to be, like Caesar’s wife, above reproach: "I have to know that the woman I marry is a one-man woman," he declared.2 This reverence led him to moderate or to rein in his strict constructionist ideology when he thought the good of the Court and the country required it. As a result, he became one of the most influential justices of his era, redefining large areas of American law in his own image. Thomas, by contrast, is an ideological purist, more interested in being philosophically consistent than in persuading colleagues to embrace his vision. He is so zealous in his devotion to carrying every principle to its logical conclusion that his ideological ally Justice Antonin Scalia told Thomas’s biographer that Thomas would overturn any judicial precedent with which he disagreed, whereas he, Scalia, wouldn’t do that.3 Thomas is underrated as a constitutional lawyer in the popular imagination: his Hamdan opinion, like much of his work, was exhaustively researched, and his colleagues have praised his technical ability in complicated regulatory cases. But because Thomas approaches the law as an essentially academic enterprise, he is content, after fifteen years on the Court, to marginalize himself in lonely dissenting opinions, without any immediate prospect of winning majorities. Even if Thomas had the option of ruling against the president and then inviting him over for drinks in the interest of the Court—a form of interbranch socializing that is no longer thinkable in a post-Watergate age—it seems unlikely he would have the inclination to do so.
The diff
Most helpful customer reviews
59 of 63 people found the following review helpful.
A Helpful Introduction to Supreme Court History
By Ronald H. Clark
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.
18 of 19 people found the following review helpful.
The real Justice League of America
By mrliteral
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.
19 of 21 people found the following review helpful.
Good History - Not Enough Catch
By S.T
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.
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