Two New Books on the U.S. Supreme Court

Other priorities prevented me from blogging about an interview with two guests on Monday that was one of the best I’ve recently witnessed on The NewsHour with Jim Lehrer. Both experts had surprising things to say that were well researched, well articulated, and (best of all) anathema to conventional wisdom—unlike every single interview with political spokespeople (Sen. Tempest, R-Red State, vs. Sen. Tantrum, D-Blue State), and unlike the increasingly predictable punditry of the dynasty of Republican sympathizers (David Gergen, Paul Gigot, David Brooks, and many likely heirs) who debate the durable Democratic dinosaur (Mark Shields, the NewsHour equivalent of Special Report‘s Fred Barnes, neither of whom can think outside the party line).

RAY SUAREZ: Now, two veteran court watchers offer some perspectives on the U.S. Supreme Court.

In “The Supreme Court: The Personalities and Rivalries That Defined America,” George Washington University Law Professor Jeffrey Rosen examines the importance of judicial temperament throughout the court’s history.

Jan Crawford Greenburg, former NewsHour regular and now a legal correspondent for ABC News, looks at the making of the current court in “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.”

I talked with them recently in the Moot Court Room at the George Washington University Law School.

Well, Jeffrey Rosen, Jan Crawford Greenburg, between your two books we get 220 years of court history. Was it always clear that the Supreme Court, Jeffrey Rosen, was going to be the important institution that it became?

JEFFREY ROSEN, George Washington University: Certainly not. When John Marshall, the greatest chief justice, took over, it was a backwater. The court met in the basement of the Capitol. People kept turning down the job of chief justice, because it wasn’t considered important enough. Congress refused to allow the court to meet for two years.

It was not a prestigious job, by any means. And the progress of the court from that embattled backwater to the strong, self-confident institution we know today is largely a reflection of the personalities that made it up. That’s what’s so striking: It really is character and temperament that made the court into the strong institution.

RAY SUAREZ: Well, you put a lot of store in your story in the personal attributes of these men who became both associates and chiefs over the years. Was this something that you even understood at first? How important personality, temperament was?

JEFFREY ROSEN: No, I was so struck by this. I just thought, why not pair justices? Take a pragmatic justice who’s able to compromise with a brilliant justice who’s more interested in ideological purity. And I found in these pairings that the brilliant ideologue was less successful than the pragmatic justice.

And it’s surprising. Take Oliver Wendell Holmes and John Marshall Harlan. Holmes is a great liberal icon. People think he was a great defender of civil rights, but it was actually the opposite.

He was a radical majoritarian, based on his experience in the Civil War. He said, “I hate justice. If my fellow citizens want to go to Hell, I will help them. It’s my job.” He almost never met a law he was willing to strike down, and he upheld some of the darkest laws that were passed by Congress, including those subverting African-American voting rights.

By contrast, John Harlan, a former slaveholder, the only southerner on the court, less brilliant than Holmes. Holmes condescended to him and said, you know, he was the last of the great “tobacco-spitting judges.” He was very emotional and moralistic.

But Harlan, based on his experience in the Civil War as a practical politician, understood the central achievement of Reconstruction, wrote that great dissent in Plessy v. Ferguson, objecting to the court’s decision to uphold railway segregation, and, because of his personal experience, was able to foreshadow the great Civil Rights revolution that the Warren Court wouldn’t recognize for almost a century.

It’s an incredible lesson about the importance of judicial temperament.

Personalities on the bench

RAY SUAREZ: Now, Jan Crawford Greenburg, Jeff Rosen’s personalities and also events in history shape, mold the court, and sort of leave it at the doorstep for you to begin your story with the modern court and how the table was set for the struggles of today.

JAN CRAWFORD GREENBURG, Legal Correspondent, ABC News: Right. And I focus on the Rehnquist court, which was together for 11 years, longer than any other Supreme Court of nine justices in history, and how that court, with those justices, came to be and, in many ways, came to disappoint conservatives and the Republican presidents who nominated them.

And personalities had something to do with it. Some of the justices just didn’t turn out to be as conservative as conservatives had believed. But others who came on the court with very strong conservative views affected the court in unexpected ways.

One of the most surprising stories that I came across during my research was the role, the real role of Justice Clarence Thomas on the Supreme Court. Now, he came on the court in 1991. And immediately he was portrayed as kind of following in Scalia’s footsteps, that Antonin Scalia was his mentor, you know, that he wasn’t necessarily just thinking for himself.

But I found all these documents in the Library of Congress that showed just the opposite was true and that, if any justice that year was changing his vote to join the other, it was Scalia changing his vote to join Justice Thomas. That wasn’t the storyline that we heard at the time.

Thomas came on the court with such strongly held, clear, independent views. So what happened that term is the court went inexplicably to the left. He replaced this liberal icon, Thurgood Marshall. But that year, the court moved to the left.

And the reason why is that Justice O’Connor, the justice that we look to in the middle, the moderate justice who saw herself as kind of a balanced person, she moved over to the left that term, in response, I argue, to some of Justice Thomas’ very strongly argued views.

Read the whole thing. The new PBS documentary on The Supreme Court, based on Rosen’s book, is also worth watching (reviewed here).

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