PBS: "The Supreme Court"

Series Looks Behind the Scenes and History of Nation's Highest Court

George Washington University Law Professor Jeffrey Rosen, whose new book " The Supreme Court: The Personalities and Rivalries that Defined America" is a companion to the PBS series "The Supreme Court," was online Thursday, Feb. 1, at 1:30 p.m. ET to discuss the the show, his book and the inner workings, history and impact of the court.

The first two parts of " The Supreme Court" air Wednesday, Jan. 31, at 9 p.m. and 10 p.m. ET on PBS (check local listings). The third and fourth parts air Feb. 7 at 9 p.m. and 10 p.m. ET.

The transcript follows.

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The National Review. He had written three books prior to "The Supreme Court," is a frequent guest on The NewsHour With Jim Lehrer and has been called "the nation's most widely read and influential legal commentator" by the Los Angeles Times.

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Washington: You seem to be optimistic that Chief Justice Roberts will be a moderate voice for the Court. I'm not so sure -- he is a conservative after all. What gives you hope he is not an Scalia-like ideologue?

Jeffrey Rosen: I was impressed in our interview for the Supreme Court book with the sincerity of his concern about the polarization on the Court and the ambition of his efforts to counteract it. He acknowledged it would be hard to resurrection John Marshall's vision of unanimity and consensus in a polarized age but he thought the good of the Court and the country required it. The kind of vision he outlined would be hard to reconcile with his being a Scalia-like ideologue, and Roberts went out of his way to criticize justices who behave like law professors -- although he didn't mention anyone by name I found myself thinking of former-Professor Scalia. Nevertheless it's still too early to tell whether or not Roberts will succeed in his vision -- he's got a tough road ahead this term in the abortion and race cases. Even if he doesn't immediately succeed though, I think moderate-minded citizens from both parties should be rooting for him.

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Washington: Professor Rosen, you seem to admire Justices who have valued getting it "right" over individual consistency or faithfulness to specific judicial ideology. To what extent has this argument influenced your own legal thinking? For example in 2003 you noted that you had come to support affirmative action after years of skepticism on the subject. Thanks for writing this fascinating book.

Jeffrey Rosen: Thanks for the nice words. My own thinking about judicial success definitely has evolved. I was trained as a law student to value academic brilliance and philosophical consistency above all, and when I started at The New Republic 15 years ago I considered myself a liberal originalists. Over the past decade though, my approach has evolved, and in writing this latest book I was struck by how the most-effective justices have been the most pragmatic and accommodating and willing to adjust to new realities, while the least-effective often have been the brilliant ideologues. That doesn't mean that philosophical consistency is irrelevant -- law should and does constrain judges in meaningful ways. But looking at the big picture I've certainly come to appreciate the virtues of judicial temperament over a purely academic approach to the law.

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Helena, Mont.: Is John Paul Stevens actually a liberal? Or is that a totally inaccurate description of his politics and jurisprudence?

Jeffrey Rosen: An interesting question. Stevens I think considers himself a traditional Republican and may believe that the party has left him behind. As it happens, Fordham's law school sponsored a symposium on Stevens's legacy a few years ago. Gerald Ford was asked to write a letter paying tribute to his only Supreme Court appointee. In his letter Ford said he would be proud to have his entire presidency judged by his appointment of Stevens, adding that he unequivocally embraced Stevens's vision of the separation of church and state, among other things. A telling reminder that Ford too may have felt out-of-place in the modern GOP.

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Washington: Thank you for doing this chat. Do you see any danger with the way the court has been politicized? The way Democrats see the constitution as something that be changed on a whim? (The filibustering of judges -- which was a non-entity 50 years ago -- now has become mainstream.) Judges have become the most politicized aspect of our system, with unlimited powers and no term limits, and I think it is bad for the country. Do you think term limits should be put in place?

Jeffrey Rosen: The polarization of our judicial politics is indeed troubling. Not sure it's just Democratic interest groups who are in favor of dramatic constitutional transformation; some Republican interest groups are too. There's an odd disconnect though between the views of the groups on both sides of the political spectrum and that of the public at large. A majority of the public is relatively happy with the Courts, which have tended to reflect public opinion on a range of issues, including abortion and states rights. It's the liberal and conservative interest groups that are upset with the Courts, which have refused to embrace their extreme agendas. This has paralyzed judicial confirmations, which groups use to win symbolic victories that they are unable to win from the courts themselves. And to the degree that Senators are playing to their base rather than to the middle, the groups enjoy a disproportionate influence on judicial politics. As for term limits I'm certainly willing to think about them in an age when people are living so much longer than they did in the nineteenth century, but that would take a constitutional amendment, and as a result I wouldn't hold my breath.

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Washington: Mr. Rosen, would you consider Justice Holmes a successful justice or a failure in terms of his influence on the Court? History seems to have a mixed view on Holmes's legacy.

Jeffrey Rosen: In my new book, The Supreme Court, I have a chapter contrasting the legacy of Justice Holmes and the first Justice Harlan. (As it happens, it was my favorite chapter to write!) The chapter argues that relatively speaking, Holmes's legacy is far less impressive than Harlan's. Because of his radical judicial abstinence -- a reflection of his experience in the Civil War, which made him skeptical of ideals of any kind -- Holmes almost never met a law he was willing to strike down, and he upheld some of the darkest laws ever passed by American legislatures, including ones that eviscerated the voting rights and civil rights of African-Americans. Harlan by contrast was right on all the issues that eluded Holmes, and his vision was vindicated dramatically during the 1950s and '60s when most of his dissenting opinions became the law of the land. Their different approaches to the Court, I think, were a reflection of their judicial temperaments, and the condescension that Holmes showed toward Harlan was characteristic of his bloodless, self-oriented approach to the job. All that said, I have a personal affinity for Holmes's vision of strenuous judicial abstinence. Although it has little political or academic consistency today I'm one of its few remaining fans because I trust the Courts to reflect majority opinion relatively consistently over time. But history as you say disagrees -- Holmes was right about only a few of the issues that posterity would come to intensely care about (most notably free speech) and for that reason his long-term influence on the Court has been far less dramatic than Harlan's.

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washingtonpost.com: Having had the benefit of watching the entire series already, one of the overriding motifs seems to be the maverick justice who joins the court as a frequent dissenter and leaves having turned the court to his point of view (Holmes, Black, Rehnquist). Was this a matter of focus, or is this how the court often operates? What causes these shifts? And who, on or potentially soon-to-be-on the current court, has the potential to play this role in the future?

Jeffrey Rosen: Thanks for noticing this pattern. Both the series and the companion book contrast more- and less-effective justices: Harlan v. Holmes; Black v. Douglas, Rehnquist v. Scalia. In each of these pairings, the more-effective justice (Harlan, Black, and Rehnquist) often joins as a dissenter but is able to build majorities because of his judicial temperament -- that is, his willingness to compromise, persuade colleagues and put the interest of the Court above his personal ideology. By contrast the less-effective justice (Holmes, Douglas, Scalia) is more interested in self-promotion and ideological purity than in persuading his colleagues, and as a result often ends up marginalized and embittered. I found it striking, at least in writing the companion book, that the more brilliant justices were often the less-effective ones -- another warning against the dangers of putting law professors on the Court!

As for who on the current Court has the potential to play the role of conciliator and pragmatic leader, the book concludes with an interview with Chief Justice Roberts that discusses his efforts to play this role. But as he acknowledges, much of his success will turn on his colleagues -- and as a previous question suggested it's far too early to tell whether or not he'll manage to bring them around!

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Alexandria, Va.: I wanted to say how much I enjoyed the show, particularly the focus on liberty of contract, which conservatives seem to have a revived interest in. Also thought I would recommend to the chatters the book "What Kind Of Nation" by Jim Simon, a terrific account of the Jefferson-Marshall conflict and how crucial it was to the kind of country we are.

Jeffrey Rosen: Thanks for the nice words, and for the well-deserved plug for Jim Simon's fine book. I drew on it (and on Jean Edward Smith's wonderful biography of Marshall, which I also recommend to the group) in writing the Jefferson and Marshall chapter of the Supreme Court companion book. A very dramatic pairing, and Henry Adams was right: Marshall's only detectable vice was that he detested Jefferson! You're right too about the revived conservative interest in liberty of contract: it may turn out that the conservative embrace of judicial restraint, a reaction to the perceived excesses of the Warren Court, was limited only to liberal results, and now that conservative have control of the courts again they're rediscovering the temptations of an activist judiciary.

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Rockville, Md.: What is your view on the declining number of cases that the Court hears each year? Some had speculated Roberts would try to reverse the trend started by Rehnquist but this year they have accepted fewer cases than any time in recent history. This especially is curious given that the circuit courts are issuing more decisions than ever. It seems the message they are sending is that the circuit courts do not have to be concerned about being reviewed -- much less overturned -- by the Supremes.

Jeffrey Rosen: If you believe as Roberts does that the Supreme Court should issue narrow, unanimous opinions that allow liberals and conservatives to converge on a common result, you might well encourage your colleagues to hear fewer cases rather than more. Confining the Court's interventions to those cases where the lower courts dramatically disagree might increase the chance of relative consensus among the justices. On the other hand, as you suggest, this means that the circuit courts will be the last word on many of the most contested questions of our legal system. Since most circuit judges are pretty able I don't see this necessarily as a bad thing.

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Atlanta: How has the induction of women into the Supreme Court changed the dynamic there?

Jeffrey Rosen: Both Justices O'Connor and Ginsburg have talked often about how a woman's perspective is relevant in certain kinds of cases -- particularly those involving gender discrimination. Ginsburg especially was pleased that she persuaded William Rehnquist, who had opposed her when she was an ACLU advocate, to join her landmark opinion striking down gender segregation at the Virginia Military Institute. And the Court has had to adjust some of its smaller rituals after going coed -- the lady's dining room became the spouse's dining room, for example. O'Connor was visibly distressed that her successor wasn't a woman, and there will be obvious pressures to appoint a woman the next time around.

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Pittsburgh: Don't you think it likely that if President Bush gets the chance to make another Supreme Court nomination it will be another hard-right Alito type? He seems quite unchastened in the wake of the Democratic swing in last November's election. After all, he appointed someone opposed to contraception to head a birth control office.

Jeffrey Rosen: Unless one of the justices becomes ill, I wouldn't bet on another Supreme Court nomination for President Bush. They're very rare in the last two years of a presidential term in any event, and at this point, it would it would be hard to get anyone through a Democratic Senate. Still, if lightning struck I think you're right: this President has shown little interest in compromise on judicial nominees and might even view a Senatorial defeat as a way of energizing his base.

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Laurel, Md.: I always had thought the three worst Supreme Court decisions to have been Dred Scott, Buck v. Bell, and Plessy v. Ferguson, in that order. Having watched last night, I'm thinking of substituting the 1883 Civil Rights case for Plessy. Will Plessy be mentioned with Brown v. Board?

Jeffrey Rosen: Great; I am so glad you noticed the Civil Rights cases, which do indeed rival Plessy for the worst decision ever rendered by the Court. I love that story of how Justice Harlan found he had writers block until his wife gave him the inkwell with which Chief Justice Taney wrote the infamous Dred Scott decision, and then his dissent "fairly flowed." Plessy will indeed be mention with the Brown case: Thurgood Marshall used to read Harlan's dissent in Plessy for inspiration before he argued Brown, and the New York Times hailed Brown as a belated vindication of Harlan's (other) great dissent.

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Wellesley, Mass.: The number of justices grew from six to nine members over time and Roosevelt said he would grow it to 15 members. What is the process for increasing the number of justices?

Jeffrey Rosen: Congress has the authority to change the number of justices, which is not specified by the Constitution. The Judiciary Act of 1789 set the number of original justices at six, but that expanded to ten until right before the Civil War. Then Congress wanted to deny President Johnson the power to appoint new justices and provided that retiring justices wouldn't be replaced -- the Court shrunk to seven but the number was fixed at nine after the Civil War. I remember in law school an interesting debate about whether politically motivated changes in the size of the Court might violate the separation of powers: the consensus seemed to be that they wouldn't. Congress, in other words, can make the Court as big or small as it pleases.

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Bristow, Va.: I greatly enjoyed the first two segments of the series last night, but I felt that the second part focused a little too heavily on the "liberty of contract" doctrine that apparently prevailed from the Civil War until 1937. What about the big antitrust cases during that time, like the Standard Oil breakup (which essentially overturned the reasoning applied to the Northern Securities case just 15 years earlier)? The "conservative court supporting laissez-faire capitalism" theme seems a bit oversimplified. Two other quick questions/quibbles: first, the segment also omitted Reynolds v. U.S. -- will the latter part deal more with church/state decisions, which are some of the key issues today? Also the program implied that FDR used his court-packing scheme as a threat to coerce the Court into ruling in his favor, leading him to then drop the idea. I thought there also was great Congressional opposition to the plan, which killed it.

Jeffrey Rosen: Thanks for these thoughtful comments. The antitrust cases are harder to depict visually, but I talk about them in the Supreme Court companion book, since they're a nice example of Harlan and Holmes on opposite sides, based on their judicial temperaments. (Teddy Roosevelt said of Holmes's dissent in the Northern Securities case, where he refused to extend the Sherman Act to railroads, "I could carve out of a banana a judge with more backbone than that.") As for church/state cases -- they will indeed be more-thoroughly covered in Episode 3 next week, focusing on the Warren era. And you're right about congressional opposition to the court-packing plan (in addition to the fact that Justice Roberts seems to have made his "switch in time" before the court-packing plan was announced). Hope the series there wasn't painting with too broad a brush. Thanks again for the comments and suggestions.

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Gainesville, Va.: In today's polarized world, people often seem to forget that there is a distinction between the constitutionality of a law and whether it is good public policy or not. For example, I think that Roe v. Wade is an abomination legally speaking, even though I think that the current state of public policy on abortion (slightly watered-down Roe) is about right. I would just prefer that such outcomes result from the persuasion of the political process rather than resulting from judicial activism. If my preferred view doesn't carry the day, that's democracy for you.

Jeffrey Rosen: As a long-standing pro-choice critic of Roe v. Wade, I agree with every word! For a longer defense of bipartisan judicial restraint along precisely these lines, let me plug my last book, "The Most Democratic Branch." We're a small but hardy band, but it's always fun to find fellow travelers.

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Cambridge, Mass.: How much do oral arguments matter? Don't the justices already have all the facts and a sense of how they will decide, and then coalitions are built during the justices' private conferences? Are oral arguments just for show?

Jeffrey Rosen: Oral arguments aren't just for show -- they can allow justices to test points that they're uncertain about and firm up tentative positions. But I think most advocates believe that few cases are won or lost in oral arguments -- the justices come in with strong leanings, which are sometimes changed in conference based on the arguments of colleagues or the Chief's success in framing an argument in a particular way.

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Centreville, Va.: While the big issues faced by the Court usually involve questions of constitutionality it seems like far more of their decisions involve interpretations of existing laws. Whenever I see legislators complaining about how the courts have interpreted the often-vague wording of a particular law, my reaction always is "hey, next time write a more carefully-crafted law" (or go back and tighten up the existing one).

Jeffrey Rosen: You're absolutely right that much of the Court's business involves the less-glamorous but very important work of statutory interpretation. By focusing only on the dramatic constitutional cases, we can miss a lot of the action.

It's 2:30 and I think I've delighted everyone long enough! Thanks so much for the excellent questions and for a provocative conversation. Please watch parts three and four of the PBS series next Wednesday, Feb 7 at 9 p.m. (check local listings). And please check out the companion book, which was lots of fun to write! Thanks again and best regards, Jeff Rosen.

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