Kindergarten Court: why the best justices are those that play well with others.
Ask yourself what qualities make for a great Supreme Court justice, and the answers that spring quickly to mind are along the lines of "brilliance" and "consistency" and "impartiality." (If you're really being honest you might add "shares my politics" to that list.) But in his most recent book, The Supreme Court: The Personalities and Rivalries That Defined America, Jeffrey Rosen argues for another possibility: temperament. Rosen's point is that the Court's most successful jurists--he spotlights John Marshall, John Harlan, Hugo Black, and William Rehnquist, and tips his hat to several others--have the same temperamental strengths that one looks for in high-performing kindergarteners. They listen well, are pleasant, and do not whine. They know how and when to go with the flow, and are keenly concerned about the well-being of the group. And they are good sharers: for example, in the early days of the Court, Justice Marshall arranged for the justices to board together, and lubricated their social gatherings with his private stock of Madeira. How nice is that?
It is, of course, very nice, and Rosen delivers up similarly nice stories about the other justices whom he fits for haloes in this book. Justice Black had Harry Truman to his place for bourbon and barbecue after handing him a stinging setback in the steel-seizure cases. Sandra Day O'Connor invited bachelor David Souter for Thanksgiving, out of pure grandmotherly graciousness. And when William Rehnquist stopped in for services at a Lutheran church while attending an out-of-town judicial conference, he wanted so badly to avoid being the center of attention that when asked his line of work he averred to being a "government lawyer." Rosen suggests that these well-honed social (and to some degree political) instincts contribute to a jurist's effectiveness on the bench and inform judgments that stand the test of time. As evidence, Rosen points repeatedly to John Marshall, who was able to expand and solidify the Court's jurisdiction in part because of his skill in avoiding confrontations with the political branches. In the iconic case Marbury v. Madison, Marshall was canny enough to hand Thomas Jefferson a political victory (declining to make him honor departing President John Adams's last-minute appointments of several "midnight judges") while at the same time claiming for the Court its defining authority--the power of judicial review.
But Rosen doesn't stop at arguing that nice justices finish first. As readers of Highlights for Children know well, the character Gallant shines not only because he is good, but because his counterpart, Goofus, is such a jerk. Rosen borrows from this model, sharply contrasting each justice he praises with a Goofus of the same era who may have been a certifiable genius but whose legacy is marred by character shortcomings. Some of the Goofus choices will, at least to nonhistorians, seem surprising and provocative. For example, Rosen casts Thomas Jefferson as John Marshall's aloof and abstracted executive-branch foil, arguing that Jefferson's overcommitment to states' rights led him to flail ineffectively at Marshall's federalizing jurisprudence. And Rosen contrasts the warm and gregarious John Harlan, whose opinions later blazed a path for the civil rights movement, against fellow Civil War veteran Oliver Wendell Holmes. Rosen paints Holmes as a vain and cynical elitist who helped sustain a generation of Jim Crow laws, and who famously authored an opinion permitting the forcible sterilization of a mentally disabled woman, noting that "Three generations of imbeciles is enough."
The Supreme Court was developed from a PBS series that Rosen worked on, and it has the kind of pacing, Structure, and entertainment value you would expect from a project that originated on the small screen. Like pretty much all of Rosen's work, it's also elegantly written and informative. Law students who want a quick and accessible road map to the Court's landmark decisions before embarking on a semester of Con Law could do worse than to look at this book, together with Rosen's 2006 book about the Court, The Most Democratic Branch.
But the book also has considerable shortcomings. For one thing, the Goofus/Gallant comparisons, while fun to read, aren't always especially illuminating. In a book about judicial temperament, is it really fair to make invidious comparisons between Chief Justice John Marshall and Thomas Jefferson, who--one almost hates to point this out--wasn't a judge? And how useful is it to contrast Hugo Black to his contemporary William O. Douglas? On the one hand, Black was an appealingly principled figure. He kept Truman out of the steel mills, argued that the Bill of Rights should protect individual freedoms against state government action in areas where it had only applied to the federal government, and later in his career tried to restrain certain overreaching excesses of the Warren Court. Opposite him we have Douglas, a brilliant but lazy jurist who wrote sloppy opinions, drank too much, and chased after women who were a fraction of his age. What emerges from this comparison is that we prefer our Supreme Court justices sober, hardworking, and non-lecherous. Who knew?
Rosen also spends the entire last chapter pouting what seems like excessive uncritical adoration on the newly minted chief justice, John Roberts, whom Rosen interviewed at length. "Because of his appealing personality and personal thoughtfulness," writes Rosen, "it's easy when talking to him to forget you're talking to the Chief Justice of the United States." While this is lovely to know, Rosen might have given Roberts a few more years to make his mark before spending twenty pages hinting that he is the Second Coming of John Marshall.
But the bigger problem with this book lies deeper. The Supreme Court appears to be part of a continuing effort by Rosen to help the Court find its way to a constitutional sweet spot--a mode and style of judging that will enhance the Court's stature and legitimacy--by arguing that it should be, in essence, more political. Rosen started down this path in his last book, The Most Democratic Branch, in which he argued that the Court's best and most-respected decisions are ones that align with the deeply held constitutional views of the American people. In saying this, however, he neglected to give a clear sense of how the Court should, as a practical matter, determine these views. Should it follow the political branches? Take its lead from polling data? Or perhaps, on occasion, consult a Magic 8-Ball? In The Supreme Court, Rosen makes something of an effort to fill this hole by suggesting that a lot comes down to the personal instincts of individual justices. Judicial temperament, he argues, "influences how and whether the Supreme Court manages to express constitutional values that are recognized by the American people as fundamental or whether it attempts in vain to impose contested values on an unwilling nation."
Rosen is not a strict majoritarian (and indeed he reserves some of his hardest shots for Justice Holmes, who was), but he clearly suggests, both here and elsewhere in his recent work, that things will go better for the Court if it can avoid ticking off big chunks of the country and the political branches of government. That may be right much of the time, and it may also be right that Supreme Court justices who have strong social skills will also be good at minimizing friction between the Court and the political world. But there are situations in which an instinct for comity is not an unalloyed virtue. One of the reasons we prize our independent judiciary is precisely because it can do the right thing even when the political winds are blowing in the opposite direction. While congeniality may have its uses, there's a difference between recognizing that it can help the Court to sail smoothly through its tasks, and suggesting that it should become the Court's defining characteristic. To the extent that Rosen is arguing the former, he comes very close to stating the obvious. To the extent that he is arguing the latter, he flirts with undermining one of the key reasons for the Court's existence. To cast this in terms that Highlights readers will appreciate, Gallant may be an okay guy, but he's not the right fellow for every situation. We ought to think twice before we stack the Court with men and women who don't like to get their clothes dirty--and who may be too quick to walk away from a fight.
Stephen Pomper is a contributing editor of the Washington Monthly.
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|Date:||Mar 1, 2007|
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