The Supreme Court (by Jeffrey Rosen)

Judging the Justices

The Supreme Court gathers at the White House in 1942.  From left: associate justices Robert E. Jackson, Frank Murphy, William O. Douglas, Felix Frankfurter, Stanley Reed, Hugo Black, Owen J. Roberts and Chief Justice Harlan Stone.
The Supreme Court gathers at the White House in 1942. From left: associate justices Robert E. Jackson, Frank Murphy, William O. Douglas, Felix Frankfurter, Stanley Reed, Hugo Black, Owen J. Roberts and Chief Justice Harlan Stone. (AP)
Reviewed by Jeff Shesol
Sunday, February 18, 2007


The Personalities and Rivalries That Defined America

By Jeffrey Rosen

Times. 274 pp. $25

"Judicial temperament," according to the American Bar Association guidelines for selecting judges, is an elusive quality, easier to identify than to define. It has been spotted frequently in John G. Roberts Jr., the new chief justice of the Supreme Court; less often in Justice Antonin Scalia, who, last year, gave what he called a "Sicilian gesture" in response to a reporter's question (and whose dissents often read like the textual equivalent).

In his new book, Jeffrey Rosen, an acclaimed observer of the court who teaches law at George Washington University, argues that temperament trumps all. "Humility and common sense," he writes, more than "academic brilliance or rigid philosophical consistency," separate the truly influential justices from the clock-punchers, outliers and cranks.

Rosen's premise rests on four rivalries, each from a different period in the court's history, each pitting what he calls a "pragmatic" personality against an "ideologue." John Marshall squares off against Thomas Jefferson (Marshall's greatest antagonist, though not, of course, a member of the court); the first John Marshall Harlan against Oliver Wendell Holmes Jr.; Hugo Black against William O. Douglas; and William H. Rehnquist against Scalia. These pairings, Rosen argues, show that a justice who plays well with others -- who can make allies, cut deals and, where necessary, adjust his or her position -- is more likely to build a lasting legacy than a justice who can't.

This argument seems particularly compelling when it comes to the chief justice. Earl Warren, as Rosen points out, may not have been the most brilliant member of his court, but he was a strong steward of the institution and a skillful manager of men. Chiefs with troubled tenures, such as Harlan Fiske Stone in the 1940s and Warren E. Burger in the 1970s and '80s, were less adept at assuaging egos and forging compromises. Whether a similar temperament is required of the eight associate justices, however, is a critical question raised -- but not resolved -- by Rosen's book. The Supreme Court (which accompanies a recent PBS series of the same name) makes a less than convincing case that agreeability is the key to influence.

Part of the problem is that Rosen's neat dichotomy (pragmatist/ideologue) may not be neat enough; throughout, it is somewhat arbitrarily applied and appears, in the end, no more illuminating than labels like liberal, conservative and activist. Take, for example, two of Rosen's pragmatists: Harlan and Black. Both appear, by the author's own rendering, an awful lot like ideologues. Harlan, the heroic lone dissenter in Plessy v. Ferguson-- the 1896 ruling that created the doctrine of "separate but equal" -- is described as "self-righteous" and "messianic," a "crusader" who viewed "every issue in moral absolutes." Black, similarly, is painted as a "free speech absolutist" who "believed in the text of the Constitution with a fundamentalist's fervor."

Rosen locates Black's pragmatism mostly in his personal dexterity -- his ability to bring his brethren around to his position (without budging much in the process). Rosen is right that this skill accounted for much of Black's influence. But to suggest, in Black's case or in general, that personal temperament matters more than intellect or ideology seems a stretch, requiring, at the very least, more support than Rosen offers. Rosen's acuity is less on display here than in his previous work; The Supreme Court has a disappointingly cursory feel.

What this book delivers is a sort of nice-guys-finish-first account of judicial history: "The self-centered loner," he writes, "is less effective than the convivial team player." This view is not without merit. Rosen's contrast between the churlish Scalia and the conciliatory Rehnquist makes the point effectively, even if the preceding chapters do not.

But it just may be that Rehnquist's influence will, in time, appear tactical and transitory. Constitutional interpretation is often an incremental process, and compromises, such as those struck by Rehnquist, are key. Still, let us give the ideologues their due: Jurisprudence also advances by bold strokes and clean breaks. Indeed, some justices, by their very obstinacy -- their refusal, decade after decade, to deviate from core principles -- have exerted a far greater long-term influence than the more obliging folks around them.

After all, can anything be more persuasive than a strong, unwavering set of beliefs, clearly articulated and consistently defended? Consider the example of Justice Louis D. Brandeis, whose powerful influence flowed less from his personal graciousness than from his relentlessness. Over time, the moral and intellectual force of his ideas -- chief among them that the Constitution was not silent on the injustices of the industrial age -- exerted a kind of magnetic pull, bringing the court, and the nation, precisely to where Brandeis had long stood. ยท

Jeff Shesol, the author of "Mutual Contempt: Lyndon Johnson, Robert Kennedy and the Feud That Defined a Decade," is at work on a book about Franklin D. Roosevelt's court-packing plan.

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