The Supreme Court: The Personalities and Rivalries That Defined America.

The Supreme Court: The Personalities and Rivalries That Defined America Jeffrey Rosen Times Books www.henryholt.com/timesbooks.htm 274 pp., $25

In the final chapter of The Supreme Court: The Personalities and Rivalries That Defined America, author Jeffrey Rosen asserts the premise of the book: "Throughout the history of the Supreme Court, judicial temperament has helped to define the success or failure of individual justices and of the Court as a whole."

This seemingly simple assertion is actually controversial in many ways. It cuts against the grain of what many of us have been taught: that judges decide cases on the facts and the law, governed by principles and precedent. Getting along well with the other kids in the sandbox may be important for elementary school socialization, but surely issues of temperment are not a critical factor in determining the shape of the law and the meaning of the Constitution.

Whether or not his premise is counterintuitive, Rosen makes a strong case for the influence of judicial temperament and personality on the Supreme Court and the way the justices have shaped constitutional values for American society. Rosen, a George Washington University law professor, prolific author, and Supreme Court commentator, makes this case by describing four pairs of protagonists whose combined careers span much of the Supreme Court's history.

He seems to have looked for engaging and accommodating personalities who have taken a pragmatic approach to the role of Supreme Court justice. These success stories are set against the careers of other figures who were not as willing to compromise with colleagues or who did not interact as easily with them. The narrative for each duo is chock-full of details, history, and insights on personality, interspersed with summaries of major Court decisions to illustrate the conflict.

Rosen's first pair is Chief Justice John Marshall and his cousin and rival, Thomas Jefferson. Marshall emerges the winner, using his "geniality" to maintain good relations with other justices while advancing the role of a strong Supreme Court exercising the power of judicial review. Although Jefferson was never a judge, he took the lead in urging a limited role for the national government and for the Supreme Court. Rosen describes Jefferson as "introverted" and "thin-skinned" and says he demonized his critics; these personality traits rendered Jefferson less effective than Marshall in influencing the evolution of constitutional law.

Next, Rosen pits John Marshall Harlan, a onetime Kentucky lawyer and political figure who became a champion of equality embodied in the Fourteenth Amendment, against Oliver Wendell Holmes Jr., a Massachusetts patrician whose Court tenure revealed his deep-seated belief in a nation governed by the will of legislative and voting majorities. Harlan emerges the winner in this match-up, leaving a practical mark on constitutional law, especially with his dissent from the separate-but-equal ruling in Plessy v. Ferguson in 1896.

Round three pairs Hugo Black with William Douglas, sometimes thought of as close allies in Chief Justice Earl Warren's Court. Actually, their personalities were very different, and they took disparate approaches toward analyzing cases that nevertheless often led to similar results. Rosen notes several times that many people considered Douglas a genius, but his irascible and quirky personality, reputation for womanizing, and penchant for firing off quick decisions blunted his effectiveness. Black, in comparison, was able to persuade colleagues to share his views, Rosen says, at least in part because of his political skill and Southern charm.

Finally, there is the relationship between Chief Justice William Rehnquist, who died in 2005, and Antonin Scalia, who remains on the Court after 21 years. Rehnquist made a significant mark on the Court by becoming a pragmatic chief justice, Rosen argues, while Scalia has functioned largely as an angry voice, alienating some colleagues and failing to persuade others.

These are interesting portraits. Yet Rosen's book is not without shortcomings. He sometimes paints the protagonists in rather stark terms, setting up Star-Wars-like conflicts like those between the virtuous Luke Skywalker and the evil Darth Vader. While this helps provide the contrast that makes the portraits readable, it does not leave much space for the nuances and subtleties of personality.

There are also small factual errors here and there, perhaps noticeable only to Court junkies. For example, Rosen describes Justice William Brennan's background as "former state assemblyman from New Jersey." But Brennan had no background in politics, never ran for elected office, and came to the U.S. Supreme Court after seven years as a judge and New Jersey state supreme court justice. And Rosen refers to Douglas's "dissent" in the 1971 Pentagon Papers case, New York Times v. United States, when in fact it was a concurring opinion.

The most problematic part of the book is admittedly a matter of perspective. Rosen regularly refers to Rehnquist in terms like "pragmatic and politically savvy" and declares in the opening chapter that "under his leadership the Court remained generally in the political mainstream...." This is certainly not the only way to see Rehnquist, and Rosen's case for this view seems weak, or at least focused on events still too fresh to have the stamp of history that the book wants to give them.

An alternate perspective on Rehnquist is that he was the most conservative member of the Court for 14 years as an associate justice, and then as chief justice he waited patiently for new justices to join his view of the value of federalism and limitations on congressional power.

Of course, there are some exceptions where Rehnquist seemed to show a genuine pragmatism. The classic example, which Rosen discusses, is Dickerson v. United States in 2000, in which Rehnquist abandoned his longtime criticism of the 1966 Miranda v. Arizona decision to write the Court's 7-2 ruling striking down a congressional attempt to limit Miranda.

But exceptions are exceptions. In many other cases, views that Rehnquist espoused in lone dissents when he was an associate justice became positions that a majority of the Court embraced in the 1990s.

On balance, Rosen has added an enjoyable and interesting take to the writing on Supreme Court history.

Stephen Wermiel is associate director of the Marshall-Brennan Constitutional Literacy Project at American University Washington College of Law, a program in which law students teach constitutional law in Washington, D.C., public high schools. He teaches constitutional law and a seminar on the Supreme Court.