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The Supreme Court (thoughts)

May 13, 2008

The current Supreme Court justices.(Finally catching up with my March reviews!)I picked up Jeffrey Rosen’s The Supreme Court expecting it to give me insight into how the Supreme Court works, and maybe some of its most important cases. I seriously considered going to law school, so I obviously have a bit of interest in the law, but I’m not super-familliar with the Supreme Court. This book didn’t really change that. What Rosen did instead was compare and contrast the leadership styles of (for the most part) Supreme Court Chief Justices (John Marshall v. Thomas Jefferson, John Marshall Harlan v. Oliver Wendell Holmes, Jr., Hugo Black v. William O. Douglas, William H. Rehnquist v. Antonin Scalia) to decide what an strategy is most effective for a Chief Justice. His conclusions are almost laughable:

In each of the pairings, there have been consistent tropes. The brilliant academic is less appealing, over time, than the collegial pragmatist. The self-centered loner is less effective than the convivial team player. The resentful braggarts wear less well than the secure justices who know who they are. The narcissist wields judicial power less surehandedly than the judge who shows personal as well as judicial humility. The loose canons shoot themselve sin the foot, while those who know hen to hold their tongues appear more judicious….The ideological purists are marginalized, while those who understand when not to take each principle to its logical extreme are vindicated by history. Those who view cases in purely philosophical terms are less sure-fotted than those who are aware of the cases’ practical effects. Those with the common touch win broader support than those who live entirely in abstractions.

None of that really breaks new ground in leadership advice!

The Supreme Court building, in all its Greek splendour(However, each chapter really looks at a phase in Supreme Court history, and that was very interesting indeed. My favourite was the Harlan v. Holmes, Jr. chapter: it focused on the irony that Harlan, a former slave owner who fought for the Confederacy, ended up championing African American civil liberties in the Reconstruction Era while Holmes, Jr., a Union veteran, was civil liberties’ greatest enemy. He explains that

Holme’s suspicion of abolitionist ideals proved to be especially unfortuante during his tenure on the Supreme Court, since some of the most important cases of his tenure required him to construe the meaning of the Reconstruction Amendements, in which the abolitionists had attempted to inscribe their ideals of equality into the Constitution.

And I had to laugh at Jefferson’s reading schedule for a young lawyer:

from dawn until eight A.M., physical sciences, ethics, and religion; from eight to noon, law; from noon to one, politics; one until dinner, history; dinner until ten P.M., literature, Shakespeare, criticism, and oratory; and then to bed.

All in all, a useful look at key points in Supreme Court history, but definitely not a primer on the Court itself.

Other Favourite Passages
In one of his most passionate opinions, Marshall agreed, striking down Georgia’s entier system of laws regarding the Cerokees as “repugnant to the Constitution, laws, and treaties of the United States.” President Jackson is famous for having supposedly reacted to the decision by saying, “John Marshall has made his decision, now let him enforce it.” The comment was probably apocryphal, but the state of Georgia simply ignored the decision, and Jackson made no effort to enforce it.

But perhaps the main reason that Scalia was never as influential as Rehnquist involved not intellectual inconsistency but judicial temperament. Although his jurisprudential premises were unobjectionable, Scalie seemed, like Thomas Jefferson, to view every disagreement as a form of apostasy. As a result he had no volume knob. Every dissenting opinion predicted the apocalypse and every colleague who disagreed with him was denounced as a politican or a fool.

5 Comments leave one →
  1. May 14, 2008 10:20 am

    The United States Supreme Court is the single branch of government whose actions have a direct, life-long affect on the individual rights of the American citizens yet most people cannot even name one member of the court. It’s rather sad, especially when the Court makes decisions that are blantantly unconstitutional as in the Kelo vs New London decision they handed down in 2005.

    Anyway, off the soap box now. I may be confused – did the author say that Scalia was Chief Justice? He wasn’t. Rehnquist was still Chief Justice when he died and President Bush appointed John Roberts to take his place.


  2. May 14, 2008 8:43 pm

    The history part of that book sounds really interesting. I watched part of a special on PBS, and it was pretty interesting, although as a rule I don’t usually get really interested in law. But it is a good thing to know about.

  3. May 14, 2008 11:49 pm

    I didn’t know you had considered law school, Eva! Any regrets?

    And nowadays Scalia is the best known, most vocal, most political, most polarizing, most media-savy Justice by far. A show-stealer, I call him. Whether that makes him influential is another story.

  4. May 15, 2008 12:43 am

    CJ, I can probably name half off the top of my head, mainly because one of the professors I worked for was really into the Supreme Court (and a buddy of Rehnquist), so I”d make him tell me stories. :) No, the author didn’t say Scalia was a chief justice; even though he said in the beginning he’d *mainly* be comparing chief justices, he chose Scalia as a comparison for pretty obvious reasons.

    Kim, I think this author wrote a book companion for that PBS series!

    Catherine, yeah the idea of law school really appealed to me, because I love minute research and have a good memory and I did really well on the practice LSATs. I have a few regrets (because I love Austin, and wanted to go to UT Austin Law School), but not too many, because the type of law I was interested in (human rights) doesn’t pay all that well, and I didn’t want to have ginormous student loans and a low-paying job. And I didn’t want to work as a corporate lawyer, because all of that money wouldn’t be worth never having any free time! Scalia is definitely a show-stealer, and the author did grant him that, but he felt he wouldn’t be influential in the long-term because he couldn’t build coalitions of other justices to support his views.


  1. Covering by Kenji Yoshino (thoughts) « A Striped Armchair

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