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Jeffrey Rosen’s “The Supreme Court”


Jeffrey Rosen’s compelling new book, The Supreme Court: The Personalities and Rivalries that Defined America, offers a model by which we should evaluate Supreme Court Justices. If you want to understand a Justice’s success on the high court, Rosen suggests the place to start is not with his or her judicial philosophy, ideology, or party identification: instead, ask whether the Justice is “a judicial pragmatist” or one with “a less accommodating temperament.”

Set aside the usual dichotomies like activist or originalist, conservative or liberal, or Democratic or Republican: the more effective Justices will build consensus, cultivate their colleagues, demonstrate political savvy, and not be sticklers for principle. The more effective Justices, perhaps not coincidentally, will not be the brainiest on the Court, either.

Rosen assembles four pairings to illustrate his point. John Marshall, the fourth Chief Justice (appointed in 1801), and Thomas Jefferson, not a Justice of course, but Marshall’s primary antagonist in the early shaping of our constitutional law, are the first pairing. The second pairing, John Marshall Harlan (appointed to the Court in 1877) and Oliver Wendell Holmes (appointed 1902), served together for almost a decade. Roosevelt appointees Hugo Black and William O. Douglas constitute the third pairing, and William H. Rehnquist and Antonin Scalia make up the fourth.

The early sections of the book are especially engaging for the savaging Rosen metes out to two American icons, Thomas Jefferson and Oliver Wendell Holmes. Rosen notes in his conclusion that “Jefferson and Holmes are among the greatest men in American history, and both represent important and admirable strains in American political thought that continue to inspire people today,” but a reader wholly unfamiliar with these great Americans would never deduce such an assessment from the earlier chapters.

“The Supreme Court:

The Personalities

and Rivalries,

That Defined America”

Rosen is of course arguing a brief, so perhaps he overstates the case for Marshall and Harlan at the expense of Jefferson and Holmes. And it may be easier to pull off that argument because the Nineteenth Century is so much more difficult to appreciate than our own time. So Jefferson the slaveholder and Holmes the Social Darwinian, features of their backgrounds that Rosen underlines, suffer in our eyes. The two more recent pairings belong to a world more recognizable to us.

Even then, Rosen is more generous in providing context when the stain is on one of his favored Justice’s biography. For example, Hugo Black’s membership in the Ku Klux Klan is cast in a more thorough and sympathetic context than Holmes’ Social Darwinism even though the latter’s error was an intellectual failure and not something Holmes adopted to advance his career. Likewise, Rosen mentions but doesn’t offer an opinion on charges that Rehnquist “challenged black and Hispanic voters as an Arizona poll watcher and on his account of the pro-segregation memos he had written [as a clerk] for Justice Jackson….”

In fact, while arguing that there is considerable overlap in the good Justices’ personal modesty and the jurisprudential modesty that he favors, Rosen cleans up the record. In the final chapter, which is built around an interview with current Chief Justice Roberts, Rosen approvingly writes: “Roberts added that Rehnquist, like John Marshall, was noted for his lack of concern about dress and lack of pretense or false modesty.” Really? Is that the same Rehnquist whose “loud shirts and psychedelic ties” caused Nixon to ask, when they first met, “Who’s the guy dressed like a clown?” And is that the Chief Justice Rehnquist who, breaking with long Court tradition, had four gold stripes sewn onto each sleeve of his robes? Rosen’s earlier chapter is the source for the Nixon anecdote, but he is mute on the Gilbert and Sullivan-inspired robe.

Similarly, William O. Douglas’s “self-indulgent” hard-partying and womanizing hurt his reputation with his colleagues and Court-watchers, says Rosen, but there is no mention of Rehnquist’s serious drug habit. “[F]or the nine years between 1972 and the end of 1981, William Rehnquist consumed great quantities of the potent sedative-hypnotic Placidyl,” Jack Shafer writes. “So great was Rehnquist’s Placidyl habit, dependency, or addiction—depending on how you regard long-term drug use—that by the last quarter of 1981 he began slurring his speech in public, became tongue-tied while pronouncing long words, and sometimes had trouble finishing his thoughts.”

I do not condemn Rehnquist’s fashion sense or his drug use. But it damages Rosen’s point about the link between personal and jurisprudential modesty to misrepresent Rehnquist’s plumage and to ignore his need to get high, especially when William O. Douglas’s flamboyance and partying are partly responsible for the poor marks Rosen assigns him.

Rosen is more consistent in asserting the demerits of being the smartest person in the room. Liberal or conservative, nobody likes a smartass. Jefferson’s brilliance and intellectual pursuits compares poorly with Marshall’s conviviality. Likewise, Holmes’s brainy interests hindered more than helped him with his Court colleagues. Ditto for Douglas’s brilliance and Scalia’s intellectual arrogance.

While I may quibble over the significance of particular facts and interpretation, Rosen has clearly advanced our understanding of the Court with his thesis about the role of personality — and personalities – in Supreme Court history.

A larger issue concerns whether these agreeable pragmatists and their judicial restraint are good for the country. While I am generally in accord with the pragmatism endorsed by Rosen, shaping the issue that way leaves aside some larger questions about justice and how we, as a country, define that concept. Rosen’s treatment is more about the process, less about the substance. To put it another way, John Marshall is revered for establishing the Supreme Court as an independent arbiter of American principles – and we shouldn’t forget those principles when we think about the Court as an institution.

Rosen’s expert analysis focuses on how the Court functions. Hopefully it will also spur more reflection on how well it promotes justice.

Note: The Supreme Court is a companion volume to a four-hour television series that premieres on PBS at the end of this month.

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