The Supreme Court: The Personalities and Rivalries That Defined America

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.

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

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.