Synopsis
A leading Supreme Court expert recounts the personal and philosophical rivalries that forged our nation's highest court and continue to shape our daily lives
The Supreme Court is the most mysterious branch of government, and yet the Court is at root a human institution, made up of very bright people with very strong egos, for whom political and judicial conflicts often become personal.
In this compelling work of character-driven history, Jeffrey Rosen recounts the history of the Court through the personal and philosophical rivalries on the bench that transformed the law--and by extension, our lives. The story begins with the great Chief Justice John Marshall and President Thomas Jefferson, cousins from the Virginia elite whose differing visions of America set the tone for the Court's first hundred years. The tale continues after the Civil War with Justices John Marshall Harlan and Oliver Wendell Holmes, who clashed over the limits of majority rule. Rosen then examines the Warren Court era through the lens of the liberal icons Hugo Black and William O. Douglas, for whom personality loomed larger than ideology. He concludes with a pairing from our own era, the conservatives William H. Rehnquist and Antonin Scalia, only one of whom was able to build majorities in support of his views.
Through these four rivalries, Rosen brings to life the perennial conflict that has animated the Court--between those justices guided by strong ideology and those who forge coalitions and adjust to new realities. He illuminates the relationship between judicial temperament and judicial success or failure. The stakes are nothing less than the future of American jurisprudence.
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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.
Reviews
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.)
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Introduction
A Question of Temperament
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 to the Court in their forties 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 principal 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 difference between Black and Thomas shows the importance of judicial temperament on the Supreme Court. Those who have it find that the Court is their oyster; those who do not are often condemned to grumbling on the sidelines. And this has been the story of the Supreme Court from the beginning.
Copyright © 2006 by Jeffrey Rosen. All rights reserved.
A Question of Temperament
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 to the Court in their forties 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 principal 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 difference between Black and Thomas shows the importance of judicial temperament on the Supreme Court. Those who have it find that the Court is their oyster; those who do not are often condemned to grumbling on the sidelines. And this has been the story of the Supreme Court from the beginning.
Copyright © 2006 by Jeffrey Rosen. All rights reserved.
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