“Ask the Author” with Jeff Rosen: Part 1

Our “Ask the Author” series returns, and the guest author for this edition is once again Jeffrey Rosen, professor at GW Law School and legal affairs editor of The New Republic. The topic of this discussion is his new book, which is called The Supreme Court: The Personalities and Rivalries That Defined America. It is the companion volume to the PBS special “The Supreme Court” which premieres on Wednesday, January 31 at 9 PM eastern.

This is Part 1 of our discussion, with part 2 coming early next week. (Incidentally, Jeff is our first two-time guest – we discussed his previous book, The Most Democratic Branch: How The Courts Serve America here).

Since the book came out only a few weeks ago, can you briefly describe your thesis and the structure of the book? How did you choose the four pairings of men that you did in order to shed light on the notion of judicial temperament and how it affects the lasting impact of a justice?

The book argues that judicial temperament has shaped the history of the Court as much as judicial philosophy. It focuses on the clashes between eight large personalities whose personal and philosophical battles continue to influence the Court today: John Marshall and Thomas Jefferson; John Marshall Harlan and Oliver Wendell Holmes; Hugo Black and William O. Douglas; and William Rehnquist and Antonin Scalia. In each of these pairings, I argue, a pragmatic disposition and the ability to interact well in groups have proved more important than academic brilliance or philosophical consistency in determining long-term judicial success. Over time, the ideological purists and self-promoting narcissists have been marginalized, while those who are more devoted to the institutional legitimacy of the Court have transformed the law in their own image. I chose these four pairings after the producers of the PBS series, “The Supreme Court,” asked me to write a companion book to the show. Each of their episodes focuses on two or three judicial personalities, and they suggested I use the same people as an anchor for the four main chapters of the book. I did a little fiddling: the third episode of the series, for example, focuses more on William Brennan as a foil to Hugo Black, while I found William O. Douglas to be better illustrations of the perils of an injudicious temperament. But once I settled on the four pairings, the thesis quickly emerged. I have to say it was a surprise: ever since law school, I was taught to value philosophical consistency and academic brilliance over the ability to compromise and to get along with others. But the historical evidence changed my mind; on the Court, oddly enough, the nicer guys often finish first.

In both the book and in the much-discussed Atlantic article (see here), it’s hard not to notice how often you compare the current Chief to the great John Marshall as well as how often he talks about Marshall of his own accord, especially in regard to Roberts’ well-known goal of trying to get the Court to speak much more frequently with one unanimous voice. Is achieving such a goal as important today as it was in Marshall’s time, when Marshall was literally carving out the place of the judiciary in our government? Has the benefit of 200 years of authority given any of the Court’s decisions instant credibility, be they 5-4 or 9-0?

I was impressed by the new Chief’s familiarity with the legacy of his greatest predecessor – and his determination to resurrect it. He’s a judicial biography buff, and has read the leading biographies of Marshall – led by Jean Edward Smith’s wonderful book. In trying to resurrect Marshall’s legacy, the current Chief emphasized that he wasn’t comparing himself to Marshall, but was merely looking for the most successful model possible, just as a competitive bicyclist would choose Lance Armstrong. As for the question of whether it’s as important to achieve unanimity as it was in Marshall’s day: Roberts argued that it’s just as important: if the justices continue to behave like law professors and to issue lots of separate opinions, they may squander the reserves of legitimacy that Marshall built up. My sense is that the current Chief is right to worry. The Rehnquist Court enjoyed relatively high approval ratings because it more or less did what the public wanted – tacking slightly to the left on social issues and slightly to the right on economic issues. But (as we discussed here a few months ago) whenever the Court gets dramatically out of step with the public, and issues intensely controversial, narrowly divided opinions, all of that carefully hoarded legitimacy can go out the window. That’s why I’m persuaded by Roberts’ argument that resurrecting Marshall’s vision is all the more important in a polarized age.