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The Supreme Court: The Personalities and Rivalries That Defined America
A leading Supreme Court expert recounts the personal and philosophical rivalries that forged our nation's highest court and continue to shape our daily livesThe Supreme Court is the most mysterious branch of government, and yet the Court is at root a human institution, made up of very bright people with very strong egos, for whom political and judicial conflicts often become personal.In this compelling work of character-driven history, Jeffrey Rosen recounts the history of the Court through the personal and philosophical rivalries on the bench that transformed the law—and by extension, our lives. The story begins with the great Chief Justice John Marshall and President Thomas Jefferson, cousins from the Virginia elite whose differing visions of America set the tone for the Court's first hundred years. The tale continues after the Civil War with Justices John Marshall Harlan and Oliver Wendell Holmes, who clashed over the limits of majority rule. Rosen then examines the Warren Court era through the lens of the liberal icons Hugo Black and William O. Douglas, for whom personality loomed larger than ideology. He concludes with a pairing from our own era, the conservatives William H. Rehnquist and Antonin Scalia, only one of whom was able to build majorities in support of his views.Through these four rivalries, Rosen brings to life the perennial conflict that has animated the Court—between those justices guided by strong ideology and those who forge coalitions and adjust to new realities. He illuminates the relationship between judicial temperament and judicial success or failure. The stakes are nothing less than the future of American jurisprudence.
290 pages, Kindle Edition
First published January 1, 2007
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January 27, 2015
History calms me. No matter how pissed off I get at current affairs or over the idiotic positions of one or another group, as soon as I immerse myself in history I realize that these arguments are nothing new; they’ve all been done before: nullification, states rights, federalism, constitutionalism, etc. Current travails will pass.
Rosen describes major conflicts on the court in terms of personalities. Marshall (the Federalist and convivial) and Jefferson (the Republican ideologue) hated each other. Just how much that motivated Marshall's extremely crafty decision in Marbury v Madison, one can only speculate about.
I had no idea that Jefferson (along with Patrick Henry)had been such a supporter of the idea that individual states should be able to nullify actions of the federal government if they thought them to be unconstitutional. This was, of course, partly his reaction to the Alien and Sedition Acts, enacted by the Federalists to tamp down any form of dissent, especially Republican challenges to Federalist doctrine. Jefferson ( Vice-President at the time) had a real fear he might be deported under the conditions of the Alien Act of 1798. Ultimately, of course, opposition to the Acts laid the groundwork for Jefferson's election to president.
Marbury v Madison is the iconic activist case, yet I found the Yazoo land case scandal that ultimately reached the Supreme Court as Fletcher v Peck to be as interesting. A series of Georgia governors had sold millions of acres of land in what is now Mississippi to land speculators (one company was headed by Patrick Henry) at very cheap prices as the result of bribes. The sales were opposed by the federal government since the land was claimed by Spain. A later Georgia legislature invalidated the contracts. Marshall’s court ruled in 1810 that even though the contracts were the result of fraudulent actions, the state could not retroactively invalidate a contract. This was the first time the court had invalidated a state legislative action. While it did lay the groundwork for a stable economic system, it certainly does leave a bad taste in the mouth.
Rosen dismantles Holmes’s sterling liberal reputation (in his defense toward the end of his life, he moved toward support for civil liberties at the expense of his judicial restraint philosophy) and shows that it was Harlan, the southern former slave owner who consistently came to the defense of the 13th-15th amendments in support of basic rights for former slaves. Holmes, especially in the Giles v Harris case (in shades of Bush v Gore), for example argued the Supreme Court had little right to overrule local legislatures, even when they trampled on the basic rights of citizens. Harlan and Holmes provide a good example of current conflicts on the court: Harlan was the textualist (which he, ironically the former slave owner, to protect the rights of blacks) and Holmes the pragmatist who said the law was what judges decided it was.
He does a nice job comparing the judicial philosophies of the justices. Surprisingly, he considers Rehnquist to be one of the more successful Chief Justices of the 20th century because he tempered his conservatism with a pragmatic grounding in respect for tradition. (Current chief justice Roberts served as a Rehnquist clerk.) Scalia, on the other hand, even while his textual originalism can be compared to Hugo Black's, considers any form of disagreement with him apostasy and he describes the decisions he dislikes as leading to apocalyptic results. Rosen makes a good case that Scalia and Thomas (perhaps now joined by Alito) are the most activist judges in decades for their willingness to overturn established precedent and legislative mandates they find distasteful. He also notes that Scalia ignored his own advice that judges should refrain from making themselves into public figures.
In an interview with Rosen, Roberts expressed concern that the court's public good will was eroding and that an important role for every chief justice is to avoid the appearance of political and partisan divide. I suspect the media will continue to make this effort very difficult. In term ending in 2014, the court decided 72 cases. Of those, fully 2/3 were unanimous. Also amazing was that only 14 percent of the court’s decisions were 5-4, with just four of those 10 splits along the liberal-conservative divide. I would argue that reveals a substantial element of harmony on the court, yet the media, thriving on conflict, insists on portraying a court bitterly divided. Admittedly, listening to the oral arguments (I listen to all of them), there are more than occasional ripostes and snide comments made, especially between Scalia and Sotomayor.(Scalia skewers Breyer all the time, but he just ignores the barbs. But you also get the feeling that Scalia is playing to the audience and he clearly loves getting laughs. An article by David Garrow led me to a piece by Frederick Schauer in the Harvard Law Review - admittedly written in 1998 -- that suggests the court is far less divided along partisan lines than the media would wish to have us think.)*
*(112 Harv. L. Rev. 84)
Rosen describes major conflicts on the court in terms of personalities. Marshall (the Federalist and convivial) and Jefferson (the Republican ideologue) hated each other. Just how much that motivated Marshall's extremely crafty decision in Marbury v Madison, one can only speculate about.
I had no idea that Jefferson (along with Patrick Henry)had been such a supporter of the idea that individual states should be able to nullify actions of the federal government if they thought them to be unconstitutional. This was, of course, partly his reaction to the Alien and Sedition Acts, enacted by the Federalists to tamp down any form of dissent, especially Republican challenges to Federalist doctrine. Jefferson ( Vice-President at the time) had a real fear he might be deported under the conditions of the Alien Act of 1798. Ultimately, of course, opposition to the Acts laid the groundwork for Jefferson's election to president.
Marbury v Madison is the iconic activist case, yet I found the Yazoo land case scandal that ultimately reached the Supreme Court as Fletcher v Peck to be as interesting. A series of Georgia governors had sold millions of acres of land in what is now Mississippi to land speculators (one company was headed by Patrick Henry) at very cheap prices as the result of bribes. The sales were opposed by the federal government since the land was claimed by Spain. A later Georgia legislature invalidated the contracts. Marshall’s court ruled in 1810 that even though the contracts were the result of fraudulent actions, the state could not retroactively invalidate a contract. This was the first time the court had invalidated a state legislative action. While it did lay the groundwork for a stable economic system, it certainly does leave a bad taste in the mouth.
Rosen dismantles Holmes’s sterling liberal reputation (in his defense toward the end of his life, he moved toward support for civil liberties at the expense of his judicial restraint philosophy) and shows that it was Harlan, the southern former slave owner who consistently came to the defense of the 13th-15th amendments in support of basic rights for former slaves. Holmes, especially in the Giles v Harris case (in shades of Bush v Gore), for example argued the Supreme Court had little right to overrule local legislatures, even when they trampled on the basic rights of citizens. Harlan and Holmes provide a good example of current conflicts on the court: Harlan was the textualist (which he, ironically the former slave owner, to protect the rights of blacks) and Holmes the pragmatist who said the law was what judges decided it was.
He does a nice job comparing the judicial philosophies of the justices. Surprisingly, he considers Rehnquist to be one of the more successful Chief Justices of the 20th century because he tempered his conservatism with a pragmatic grounding in respect for tradition. (Current chief justice Roberts served as a Rehnquist clerk.) Scalia, on the other hand, even while his textual originalism can be compared to Hugo Black's, considers any form of disagreement with him apostasy and he describes the decisions he dislikes as leading to apocalyptic results. Rosen makes a good case that Scalia and Thomas (perhaps now joined by Alito) are the most activist judges in decades for their willingness to overturn established precedent and legislative mandates they find distasteful. He also notes that Scalia ignored his own advice that judges should refrain from making themselves into public figures.
In an interview with Rosen, Roberts expressed concern that the court's public good will was eroding and that an important role for every chief justice is to avoid the appearance of political and partisan divide. I suspect the media will continue to make this effort very difficult. In term ending in 2014, the court decided 72 cases. Of those, fully 2/3 were unanimous. Also amazing was that only 14 percent of the court’s decisions were 5-4, with just four of those 10 splits along the liberal-conservative divide. I would argue that reveals a substantial element of harmony on the court, yet the media, thriving on conflict, insists on portraying a court bitterly divided. Admittedly, listening to the oral arguments (I listen to all of them), there are more than occasional ripostes and snide comments made, especially between Scalia and Sotomayor.(Scalia skewers Breyer all the time, but he just ignores the barbs. But you also get the feeling that Scalia is playing to the audience and he clearly loves getting laughs. An article by David Garrow led me to a piece by Frederick Schauer in the Harvard Law Review - admittedly written in 1998 -- that suggests the court is far less divided along partisan lines than the media would wish to have us think.)*
*(112 Harv. L. Rev. 84)
August 16, 2009
This book taught me that Oliver Wendell Holmes was a real jerk.
Who knew? I knew he was a famous supreme court justice, and that a character in Bloom County was sort-of named after him (the wonderful African-American computer geek kid Oliver Wendell Jones), but it turns out that he was a devoted social Darwinist (a believer that the strong defeat the weak, and that this is a natural and good thing), worked against civil rights, and believed that the wishes of the majority should always prevail.
That was actually only 1 chapter out of 4. The four conflicts that Rosen describes can be roughly (and perhaps unfairly) categorized into:
1. President vs. Supreme Court (Jefferson vs. John Marshall)
2. Liberal vs. Conservative (Holmes vs. John Marshall Holland)
3. Liberal vs. Liberal (Hugo Black vs. the disturbingly lascivious William O. Douglas)
4. Conservative vs. Conservative (Rehnquist vs. Scalia)
I also have a lot more respect for William Rehnquist than I even though I could.
On the one hand, I feel like this book really educated me, and brought more humanity to the supreme court. On the other hand, I'm afraid the writing style didn't do much for me. I found it hard to sink into the book.
Recommended for people who want to know more about history.
Who knew? I knew he was a famous supreme court justice, and that a character in Bloom County was sort-of named after him (the wonderful African-American computer geek kid Oliver Wendell Jones), but it turns out that he was a devoted social Darwinist (a believer that the strong defeat the weak, and that this is a natural and good thing), worked against civil rights, and believed that the wishes of the majority should always prevail.
That was actually only 1 chapter out of 4. The four conflicts that Rosen describes can be roughly (and perhaps unfairly) categorized into:
1. President vs. Supreme Court (Jefferson vs. John Marshall)
2. Liberal vs. Conservative (Holmes vs. John Marshall Holland)
3. Liberal vs. Liberal (Hugo Black vs. the disturbingly lascivious William O. Douglas)
4. Conservative vs. Conservative (Rehnquist vs. Scalia)
I also have a lot more respect for William Rehnquist than I even though I could.
On the one hand, I feel like this book really educated me, and brought more humanity to the supreme court. On the other hand, I'm afraid the writing style didn't do much for me. I found it hard to sink into the book.
Recommended for people who want to know more about history.
March 11, 2016
This book presents the Supreme Court in an engaging fashion—or at least in as engaging a fashion as possible—by focusing on the quirky and often interesting personalities of the Justices on the Court throughout American history. I really enjoyed reading the book, so as “fun” Supreme Court reading about the members of the Court and how they function within the institution…I highly recommend it. I enjoyed learning about what an elitist snob Oliver Wendell Holmes was, about Hugo Black’s time as a member of the KKK, Douglass’s dalliances with women, and John Marshall’s love of Madera wine. This book is an engaging examination of the personalities of the justices on the Court.
On a more scholarly note: Rosen’s main thesis does not always seem persuasive to me. He argues that the most successful and persuasive Justices have the “right” type of personality to function as a cooperative and friendly member of the Supreme Court, both by persuading other justices to join their side and interacting well with politicians in other branches of government. This seems intuitive and reasonable, but Rosen’s evidence often fails to support it. He compares Justices and politicians side by side (like Douglass and Hugo Black, Holmes and Harlan, John Marshall and Thomas Jefferson), and suggests that one of the two was more influential than the other because he had “the right personality of the Court.” Problem is that the lines of influence blur. Of course John Marshall was a great first chief Justice, but Jefferson has also made his stamp on the country despite being moody, uncompromising, and overly intellectual. And history remembers Harlan and Holmes as both being judicial luminaries, despite their faults. Likewise, although Douglass is sometimes ridiculed for talking about “penumbras,” he was THE great champion of the contemporary “right to privacy” in reproduction. He served on the Court for a large chunk of the Twentieth Century, and the fact that people’s views on abortion has become a litmus test” for nominees today reveals his influence.
So read this book to enjoy learning about the quirky personalities of the justices, rather than as a grand theory about how personality relates to an effectively functioning institution. Rosen does a great job with the former and falls short with the latter.
On a more scholarly note: Rosen’s main thesis does not always seem persuasive to me. He argues that the most successful and persuasive Justices have the “right” type of personality to function as a cooperative and friendly member of the Supreme Court, both by persuading other justices to join their side and interacting well with politicians in other branches of government. This seems intuitive and reasonable, but Rosen’s evidence often fails to support it. He compares Justices and politicians side by side (like Douglass and Hugo Black, Holmes and Harlan, John Marshall and Thomas Jefferson), and suggests that one of the two was more influential than the other because he had “the right personality of the Court.” Problem is that the lines of influence blur. Of course John Marshall was a great first chief Justice, but Jefferson has also made his stamp on the country despite being moody, uncompromising, and overly intellectual. And history remembers Harlan and Holmes as both being judicial luminaries, despite their faults. Likewise, although Douglass is sometimes ridiculed for talking about “penumbras,” he was THE great champion of the contemporary “right to privacy” in reproduction. He served on the Court for a large chunk of the Twentieth Century, and the fact that people’s views on abortion has become a litmus test” for nominees today reveals his influence.
So read this book to enjoy learning about the quirky personalities of the justices, rather than as a grand theory about how personality relates to an effectively functioning institution. Rosen does a great job with the former and falls short with the latter.
June 21, 2024
I wanted to learn more about the Supreme Court so I listened to this book! It was so interesting how they contrasted personalities of Supreme Court justices throughout history. The author talks about how judicial temperament makes for the most successful justices. I would have loved to learn more about some female justices but I understand that it was an examination of opposite personalities.
June 10, 2018
This generally tracked rivalries on some of the more famous “courts” throughout history. Then it became more of a Scalia hit piece than anything else-to the point that it seems to forfeit objectivity.
July 29, 2022
Very interesting approach with wide-ranging relevance. Rosen seems to tip his hand too much when engages in such open invective against Scalia and Thomas though. There are fair criticisms to be made, but it got a bit ridiculous at times.
August 11, 2022
My main takeaway from this book is that most men who have served on the Supreme Court are horrible, including the current men. So.
July 19, 2008
I found this account of the Supreme Court far less engaging than "The Nine". Rosen's main point - that judicial temperament determines success on the court, in the sense that justices who work well with others have more influence - hardly qualifies as an earth-shattering insight. But it causes him to adopt an awkward structure for the book, sorting through history to pick pairs of judges, who are then analyzed in a series of artificial head-to-head comparison. The result seems forced, and not particularly illuminating.
I'll bet that Rosen thought it was quite a coup when he scored the in-depth interview with the new Chief Justice Roberts that rounds out the book. But it's basically a string of banalities, wherein Rosen seems like nothing more than a mouthpiece for Roberts's insubstantial, Pollyanna-ish platitudes. The effect is to undermine any credibility Rosen might have built up in the preceding chapters.
But how much respect does this kind of writing really deserve, anyway?
If the pairings of judicial temperaments in this book suggest anything, it is that courting attention and partisan approval in the short term is no guarantee of judicial respect in the long term. 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 sure-handedly than the judge who shows personal as well as judicial humility. The loose cannons shoot themselves in the foot, while those who know when to hold their tongues appear more judicious. (On the court, a justice often achieves more by saying less.) 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-footed 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.
That Rosen sees fit to indulge in eight consecutive repetitions of the same point strongly suggests (a) that he is a moron, and (b) that he considers his readers to be morons.
Skip this, and read "The Nine" instead.
I'll bet that Rosen thought it was quite a coup when he scored the in-depth interview with the new Chief Justice Roberts that rounds out the book. But it's basically a string of banalities, wherein Rosen seems like nothing more than a mouthpiece for Roberts's insubstantial, Pollyanna-ish platitudes. The effect is to undermine any credibility Rosen might have built up in the preceding chapters.
But how much respect does this kind of writing really deserve, anyway?
If the pairings of judicial temperaments in this book suggest anything, it is that courting attention and partisan approval in the short term is no guarantee of judicial respect in the long term. 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 sure-handedly than the judge who shows personal as well as judicial humility. The loose cannons shoot themselves in the foot, while those who know when to hold their tongues appear more judicious. (On the court, a justice often achieves more by saying less.) 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-footed 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.
That Rosen sees fit to indulge in eight consecutive repetitions of the same point strongly suggests (a) that he is a moron, and (b) that he considers his readers to be morons.
Skip this, and read "The Nine" instead.
October 17, 2009
Here’s an interesting technique of historiography: match up pairs of historical figures, making sure that in each pair you agree with one, and disagree with the other. Then praise the one in almost every way, while denigrating the other. Lastly, declare that the first was on the side of truth and justice, while the other was merely self-serving. Rosen applies this rubric to pairs of Supreme Court Justices through the ages (although, oddly, he pairs John Marshall with Thomas Jefferson, who of course was never on the Court). Rosen is somewhat ambivalent about the actual role of truth and justice on the Court, but he pulls no punches in proclaiming his thesis that a jurist who looks only to his own legacy will, in the end, have a very poor legacy indeed. He holds in high regard those Justices who essentially play along to get along, and work toward consensus and unity on the Court (he includes Marshall, Harlan, Black, and Rehnquist as the more collegial Justices), rather than those Justices who carve their own jurisprudential path and stick to it (Jefferson, Holmes, Douglas, and Scalia get labeled as “ideologues” under this rubric). Rosen’s thesis may seem unbiased, but he doesn’t give us enough of a reason to believe that consensus is a virtue in its own right. As hard as it is to come down on the same side of any issue as Justice Scalia, I find myself wondering if developing a clear and consistent legal theory, and then applying it fairly, isn’t more important than trying to get people to agree with you.
Having dispensed with the basic premise of Rosen’s book, I did quite enjoy the book itself. It’s very well written, and the anecdotes about both current and historical figures are very interesting. Any student of the Court, or even those with a more cursory interest, will find this book a valuable and enjoyable read.
Having dispensed with the basic premise of Rosen’s book, I did quite enjoy the book itself. It’s very well written, and the anecdotes about both current and historical figures are very interesting. Any student of the Court, or even those with a more cursory interest, will find this book a valuable and enjoyable read.
July 9, 2016
Jeffrey Rosen takes an interesting, human look at some of the crucial people and moments in Supreme Court history. I listened to this one while in the yard and on the train, and it held together nicely as four chapters of key relationships in U.S. history.
There's much I want to learn about Court history, but I'm simply not going to wade through tomes heavy on arcane opinions, with gobs of jurisprudence. This book, instead, is a history of key people, and delves dangerously/tantalizingly close to popular psychology. Rosen does not hesitate to theorize how and why Oliver Wendell Holmes and John Marshall Harlan essentially wound up as enigmatic opposites on civil rights -- each staking out the positions that the other would have been as a natural projection from their upbringing (Harlan was from the South, and transformed into a paragon of civil rights; New Englander Holmes was having none of it, instead becoming a strained originalist of epic proportions.)
Rosen takes sides, naturally, and holds above other attributes the force of compromise and charisma that enabled John Marshall (for one) to create useful and popular opinions. To Rosen, that seems to be the gold standard: He prefers the guys who uphold the respectability of the Court and show an even temperament ... And so he has a fusillade of barbs for William O. Douglas (on the left) and Antonin Scalia (on the right), while praising their colleagues Hugo Black and William Rehnquist.
This book does a good job of suggesting how the Court has worked over the years, generally showing favor to the human consensus-builders on the court. Finally, he takes a strangely optimistic view that John Roberts "gets it," and so the Court is in good hands for the foreseeable future. Or something.
There's much I want to learn about Court history, but I'm simply not going to wade through tomes heavy on arcane opinions, with gobs of jurisprudence. This book, instead, is a history of key people, and delves dangerously/tantalizingly close to popular psychology. Rosen does not hesitate to theorize how and why Oliver Wendell Holmes and John Marshall Harlan essentially wound up as enigmatic opposites on civil rights -- each staking out the positions that the other would have been as a natural projection from their upbringing (Harlan was from the South, and transformed into a paragon of civil rights; New Englander Holmes was having none of it, instead becoming a strained originalist of epic proportions.)
Rosen takes sides, naturally, and holds above other attributes the force of compromise and charisma that enabled John Marshall (for one) to create useful and popular opinions. To Rosen, that seems to be the gold standard: He prefers the guys who uphold the respectability of the Court and show an even temperament ... And so he has a fusillade of barbs for William O. Douglas (on the left) and Antonin Scalia (on the right), while praising their colleagues Hugo Black and William Rehnquist.
This book does a good job of suggesting how the Court has worked over the years, generally showing favor to the human consensus-builders on the court. Finally, he takes a strangely optimistic view that John Roberts "gets it," and so the Court is in good hands for the foreseeable future. Or something.
August 18, 2009
Rosen, a professor of law at George Washington University, contends that a justice’s temperament is the crucial factor in determining that person’s effectiveness on the Court. He compares the temperaments of four pairs of historic rivals: John Marshall and Thomas Jefferson (Jefferson was not a justice, but he was Marshall’s key Constitutional rival), John Marshall Harlan and Oliver W. Holmes, Hugo Black and William O. Douglas, William Rehnquist and Antonin Scalia. Rosen contends that the man in each pair who most affected the Court’s rulings was pragmatic, collegial, savvy and respected. These men (Marshall, Harlan, Black, and Rehnquist) worked toward consensus and stability and valued what was good for the Court and the country above their personal ideologies. Their personalities made them more successful in shaping law than did the personal achievements and brilliance of their rivals (Jefferson, Holmes, Douglas and Scalia). This is the second time I’ve read this book and it’s made me hopeful about healthcare reform, that Obama’s temperament will help him oversee development of a consensus plan that will improve our system.
June 2, 2016
A concise overview of people who have had seats on the Federal Supreme Court throughout our country's history. Especially interesting with comparisons to Antonin Scalia (the book was written while he was alive). Scalia was not the first originalist on the court, but being an originalist meant different things to different judges.
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July 24, 2011Surprising how big a role personal history and office politics can play on legal decisions across the decades.
May 10, 2017
I don’t really like the layout of this book. If you’re going to go with the concept of “two justices (or a president) who hate each other” from every era, do it. But that’s not what he did. Marshall and Jefferson (not a justice, but I’ll led it slide), definitely hated each other. Harlan and Holmes, there was definitely a tension there too. But Black and Douglas were best friends who usually voted together, even if they “drift apart” eventually. And Rehnquist and Scalia were somewhat like-minded and also often voted together. You could find so many better options for both those eras. Like McReynolds and literally everyone. Or Frankfurter and Black. Or Frankfurter and Douglas. Scalia and Kennedy. Scalia and Marshall/Brennan. Scalia and Ginsburg. Scalia and Scalia. Etc.
That said, I really, really like the way this author writes. Been reading just about every major popular book on the Supreme Court lately (sue me, I’m in Constitutional Law this semester and thought I might as well read them now) and none has been quite as readable as this one.
I especially like the portrait he paints of Douglas. I love Douglas. Like, not his opinions. They’re kind of trash for a SCOTUS judge. But they’re great trash. They’re wordsy and he uses words in ways that you wouldn’t expect and I kind of like that, even if he’s just totally talking out of his ass.
I like that he’s a womanizer and a drunk, but viewed by many as one of the most brilliant judges ever on the court- but one of the laziest and the most distracted, too. I like that he “views it as his personal mission to promote justice and to defend the individual against the tyranny of what he called ‘the Establishment’ in case after case.” I like that his motto, when dealing with corporate America, is “Piss on ‘em.” I love that near the end of his career, he said, “I’m ready to bend the law in favour of the environment and against the corporations.” Yeah! I can get on board with that. Fight the Man, even if the Man is a nebulous concept he hasn’t quite nailed down yet. Then of course there’s the fact that he thinks trees should have standing to sue in court when “their” land is threatened. Spent a few weeks every year in a cabin in the mountains in the middle of nowhere, where he could only be reached by leaving a message with the general store, the only telephone for miles. THIS DUDE. HE IS ME. How do you not love Douglas. (If you’re Justice Thomas, apparently: he had a sign in his office ridiculing Douglas’s Griswold opinion that read “Please don’t emanate in the penumbras.” This is probably only funny if you’re a law student, I know.)
It’s also worth noting that, in many books about the justices, the same stories get reused over and over again. Like, tell me one more time how Harlan used Taney’s inkwell to write the Plessy dissent, huh?
But there are facts (especially about Black!) that I haven’t encountered anywhere else (he was named after Victor Hugo, his mother’s favourite author; he’s related to Justice Harlan; he hated liquor because his dad was a drunk (big shock he’s best friends with Douglas the Drunk actually); he was kicked out of high school for breaking the switch of a teacher who was beating his teenage sister; he read a book a day because he felt uneducated as a result. Interesting, too, that although he was a Klan member for political reasons, he vehemently defended black inmates and wrote a lot of strongly worded pro-minority opinions. He also, when his buddy Douglas was facing potential impeachment because Nixon (oh irony!) passed him this note while they were on the bench: “Dear Bill: if they try to impeach you, I’ll resign and be your lawyer. I still have one more hard trial left in me. Hugo.” D’awwww.
One complaint: the word “paean.” Appeared at least 12 times in this book. We all have pet words (I myself am a big fan of "fucking" "wine" and "goddamn) but this one is so aggressive in its prevalence.
Okay guys! I'm done reading SCOTUS books for a long time I promise. Sorry for what are probably a long line of very dull reviews <3
That said, I really, really like the way this author writes. Been reading just about every major popular book on the Supreme Court lately (sue me, I’m in Constitutional Law this semester and thought I might as well read them now) and none has been quite as readable as this one.
I especially like the portrait he paints of Douglas. I love Douglas. Like, not his opinions. They’re kind of trash for a SCOTUS judge. But they’re great trash. They’re wordsy and he uses words in ways that you wouldn’t expect and I kind of like that, even if he’s just totally talking out of his ass.
I like that he’s a womanizer and a drunk, but viewed by many as one of the most brilliant judges ever on the court- but one of the laziest and the most distracted, too. I like that he “views it as his personal mission to promote justice and to defend the individual against the tyranny of what he called ‘the Establishment’ in case after case.” I like that his motto, when dealing with corporate America, is “Piss on ‘em.” I love that near the end of his career, he said, “I’m ready to bend the law in favour of the environment and against the corporations.” Yeah! I can get on board with that. Fight the Man, even if the Man is a nebulous concept he hasn’t quite nailed down yet. Then of course there’s the fact that he thinks trees should have standing to sue in court when “their” land is threatened. Spent a few weeks every year in a cabin in the mountains in the middle of nowhere, where he could only be reached by leaving a message with the general store, the only telephone for miles. THIS DUDE. HE IS ME. How do you not love Douglas. (If you’re Justice Thomas, apparently: he had a sign in his office ridiculing Douglas’s Griswold opinion that read “Please don’t emanate in the penumbras.” This is probably only funny if you’re a law student, I know.)
It’s also worth noting that, in many books about the justices, the same stories get reused over and over again. Like, tell me one more time how Harlan used Taney’s inkwell to write the Plessy dissent, huh?
But there are facts (especially about Black!) that I haven’t encountered anywhere else (he was named after Victor Hugo, his mother’s favourite author; he’s related to Justice Harlan; he hated liquor because his dad was a drunk (big shock he’s best friends with Douglas the Drunk actually); he was kicked out of high school for breaking the switch of a teacher who was beating his teenage sister; he read a book a day because he felt uneducated as a result. Interesting, too, that although he was a Klan member for political reasons, he vehemently defended black inmates and wrote a lot of strongly worded pro-minority opinions. He also, when his buddy Douglas was facing potential impeachment because Nixon (oh irony!) passed him this note while they were on the bench: “Dear Bill: if they try to impeach you, I’ll resign and be your lawyer. I still have one more hard trial left in me. Hugo.” D’awwww.
One complaint: the word “paean.” Appeared at least 12 times in this book. We all have pet words (I myself am a big fan of "fucking" "wine" and "goddamn) but this one is so aggressive in its prevalence.
Okay guys! I'm done reading SCOTUS books for a long time I promise. Sorry for what are probably a long line of very dull reviews <3
July 4, 2020
A shitty writer tackles an interesting topic.
This is a book that does not know what it is about. The title, "The Supreme Court" suggests a book of majesterial sweep encompasing the history of one of the three branches of American government. Actually, it is a fairly short book looking at eight dudes, seven of who were on the Supreme Court. He tries to track the history of the Supreme Court through four rivalries between these eight dudes, Jefferson versus Marshall, Holmes versus Harlan, etc. The author claims that the book's is that legal ability in the Supreme Court comes more from being able to bend people to your will through friendship (judicial temperment as he calls it) rather than through a rabid dedication to legal principles. But the author spends almost no time in the half that I read talking about judicial temperment.
Not only does this book not know what it is about, but also the writing is fairly shitty. The author has a maddening tendency to take on tangents. He spends a good bit of time talking about the Dred Scott decision, even though that was not made by any of the eight personalities he is highlighting. If he wanted to discuss Dred Scott, fine, but don't embed it as a tangent in another the discussion of a judge that had little to do with that decision. Rosen's discussions of race in the judicial system were the most interesting part of the book, but they often seemed to be off topic...perhaps Rosen should have written a different book, one on race and the supreme court.
Rosen often makes statements that he could easily defend but does not. He says that Oliver Wendell Holmes was thin skinned and needed to be adored. Well...can you prove it. Rosen does not bother to offer something Holmes said or something Holmes did to demonstrate his point.
David Garrow, a great historian, calls Rosen "the nation's most widely read and influential legal scholar," but this book was bad for so many reasons. Even though it offered some interesting discussions of legal history in the US, I just could not take Rosen's bad writing.
Made it 52% of the way through the book.
This is a book that does not know what it is about. The title, "The Supreme Court" suggests a book of majesterial sweep encompasing the history of one of the three branches of American government. Actually, it is a fairly short book looking at eight dudes, seven of who were on the Supreme Court. He tries to track the history of the Supreme Court through four rivalries between these eight dudes, Jefferson versus Marshall, Holmes versus Harlan, etc. The author claims that the book's is that legal ability in the Supreme Court comes more from being able to bend people to your will through friendship (judicial temperment as he calls it) rather than through a rabid dedication to legal principles. But the author spends almost no time in the half that I read talking about judicial temperment.
Not only does this book not know what it is about, but also the writing is fairly shitty. The author has a maddening tendency to take on tangents. He spends a good bit of time talking about the Dred Scott decision, even though that was not made by any of the eight personalities he is highlighting. If he wanted to discuss Dred Scott, fine, but don't embed it as a tangent in another the discussion of a judge that had little to do with that decision. Rosen's discussions of race in the judicial system were the most interesting part of the book, but they often seemed to be off topic...perhaps Rosen should have written a different book, one on race and the supreme court.
Rosen often makes statements that he could easily defend but does not. He says that Oliver Wendell Holmes was thin skinned and needed to be adored. Well...can you prove it. Rosen does not bother to offer something Holmes said or something Holmes did to demonstrate his point.
David Garrow, a great historian, calls Rosen "the nation's most widely read and influential legal scholar," but this book was bad for so many reasons. Even though it offered some interesting discussions of legal history in the US, I just could not take Rosen's bad writing.
Made it 52% of the way through the book.
December 24, 2024
Here’s an interesting technique of historiography: match up pairs of historical figures, making sure that in each pair you agree with one, and disagree with the other. Then praise the one in almost every way, while denigrating the other. Lastly, declare that the first was on the side of truth and justice, while the other was merely self-serving. Rosen applies this rubric to pairs of Supreme Court Justices through the ages (although, oddly, he pairs John Marshall with Thomas Jefferson, who of course was never on the Court). Rosen is somewhat ambivalent about the actual role of truth and justice on the Court, but he pulls no punches in proclaiming his thesis that a jurist who looks only to his own legacy will, in the end, have a very poor legacy indeed. He holds in high regard those Justices who essentially play along to get along, and work toward consensus and unity on the Court (he includes Marshall, Harlan, Black, and Rehnquist as the more collegial Justices), rather than those Justices who carve their own jurisprudential path and stick to it (Jefferson, Holmes, Douglas, and Scalia get labeled as “ideologues” under this rubric). Rosen’s thesis may seem unbiased, but he doesn’t give us enough of a reason to believe that consensus is a virtue in its own right. As hard as it is to come down on the same side of any issue as Justice Scalia, I find myself wondering if developing a clear and consistent legal theory, and then applying it fairly, isn’t more important than trying to get people to agree with you.
Having dispensed with the basic premise of Rosen’s book, I did quite enjoy the book itself. It’s very well written, and the anecdotes about both current and historical figures are very interesting. Any student of the Court, or even those with a more cursory interest, will find this book a valuable and enjoyable read.
Having dispensed with the basic premise of Rosen’s book, I did quite enjoy the book itself. It’s very well written, and the anecdotes about both current and historical figures are very interesting. Any student of the Court, or even those with a more cursory interest, will find this book a valuable and enjoyable read.
December 13, 2021
3.5 stars
An interesting book about temperamental differences between four pairs of Supreme Court justices. Yes, a bit esoteric and probably not the best book to begin with on learning about the Supreme Court, but it was available on Libby so I downloaded it and listened. I was not disappointed.
Actually, it did give a bit of a history. First pairing—Chief Justice John Marshall and President Thomas Jefferson. Ok, this first pairing wasn’t two justices, it was a justice and a president, but our country was young then and this juxtaposition was interesting. Marshall was a realist and Jefferson was an idealist.
One thrust of the book was temperament, being an effective justice is more about getting along than just being smart. Other pairings are Justices John Marshall Harlan and Oliver Wendell Holmes and their different views on majority rule. (My take—is majority rule democracy or is it bullying?)
Then Hugo Black and William O Douglas—big personalities who my parents would remember, but sadly, not I. Lastly, William Rehnquist and Antonin Scalia, the latter whom I remember as being kind of larger than life. So, in all, I learned interesting things about the personalities of eight men—seven justices and one president.
This probably wasn’t the best book for a Supreme Court neophyte to start off with, but one of my big takeaways is that the Supreme Court needs to be anti-partisan. The other is that it’s best that justice function better as relatively anonymous parts of a greater whole rather than as a “superstar.” I hope the nine justices who are now sitting on the court (Dec. 2021) are able to remember this important stance.
An interesting book about temperamental differences between four pairs of Supreme Court justices. Yes, a bit esoteric and probably not the best book to begin with on learning about the Supreme Court, but it was available on Libby so I downloaded it and listened. I was not disappointed.
Actually, it did give a bit of a history. First pairing—Chief Justice John Marshall and President Thomas Jefferson. Ok, this first pairing wasn’t two justices, it was a justice and a president, but our country was young then and this juxtaposition was interesting. Marshall was a realist and Jefferson was an idealist.
One thrust of the book was temperament, being an effective justice is more about getting along than just being smart. Other pairings are Justices John Marshall Harlan and Oliver Wendell Holmes and their different views on majority rule. (My take—is majority rule democracy or is it bullying?)
Then Hugo Black and William O Douglas—big personalities who my parents would remember, but sadly, not I. Lastly, William Rehnquist and Antonin Scalia, the latter whom I remember as being kind of larger than life. So, in all, I learned interesting things about the personalities of eight men—seven justices and one president.
This probably wasn’t the best book for a Supreme Court neophyte to start off with, but one of my big takeaways is that the Supreme Court needs to be anti-partisan. The other is that it’s best that justice function better as relatively anonymous parts of a greater whole rather than as a “superstar.” I hope the nine justices who are now sitting on the court (Dec. 2021) are able to remember this important stance.
January 23, 2023
The Supreme Court by Jeffery Rosen takes a unique look at Supreme Court history by focusing on judicial temperament in assessing the performance of swing votes on the court that produced harmony. He looks a pair of judges to see their effectiveness and describe their temperament. He starts comparing Marshall with Thomas Jefferson and the early years of establishing a powerful federal court. He then moves on to John Marshall Harlan and Oliver Wendel Holmes (while acknowledging the Taney years were not the courts finest). He looks at the rise of what we would call today originalism vs activist judging and how each came to their viewpoints. Next is the opposite characters of William Douglas and Hugo Black showing how swing voters would dominate the court and that what was once considered liberal could be conservative as the court swings one direction or the other. Finally there is a comparison of Rehnquist and Scalia while spending some time on Sandra Day O’Connor. This book has been on my shelf for awhile and I actually think I got more out of it reading it today than I would have when I bought it. Considering the current public opinion of the court there is a lot to unpack here with regards to public perception of the court. Overall Rosen presents an engaging look at the court and while he clearly does not like Scalia I am not sure it detracts from his overall point that is rather simple. People who make consensus define the court at the time. He shows as most know that someone’s leanings change when on the court and the presidents who appoint them have often been disappointed by the results.
July 9, 2019
Jeffrey Rosen short and insightful book is somewhat mistitled. It is not so much a history of the Supreme Court as a brief in favor of the proper judicial temperament. Defined by Rosen, this includes an emphasis on collegiality, consensus, and concern for the Court as an institution. He makes his argument through four pairings of personalities embodying judicial temperament with an often more celebrated contemporary — John Marshall vs. Thomas Jefferson, John Marshall Harlan vs. Oliver Wendell Holmes, Hugo Black vs. William O. Douglas, and William Rehnquist vs. Antonin Scalia.
Each of the pairings has a different dynamic, which keeps the book interesting. Only the first pair were political rivals, and Jefferson never served on the court. Black and Douglas were both New Deal liberals appointed by FDR, for example, while Reagan appointed Scalia to the Court at the same time he elevated Rehnquist to Chief Justice. The contrast is therefore kept from being one of liberal/conservative or Democrat/Republican, and is much more interesting book as a result.
Rosen comes down in favor of moderation, which is attractive in these highly polarized times, even more so than when the book was published in 2006. His concluding chapter, on the then new Chief Justice John Roberts, correctly assesses that Roberts would share the judicial temperament that Rosen values so highly. It has to be said that Rosen gives each of the ideologues his due, noting his own important contributions, and honors the complexity of history and human nature.
Each of the pairings has a different dynamic, which keeps the book interesting. Only the first pair were political rivals, and Jefferson never served on the court. Black and Douglas were both New Deal liberals appointed by FDR, for example, while Reagan appointed Scalia to the Court at the same time he elevated Rehnquist to Chief Justice. The contrast is therefore kept from being one of liberal/conservative or Democrat/Republican, and is much more interesting book as a result.
Rosen comes down in favor of moderation, which is attractive in these highly polarized times, even more so than when the book was published in 2006. His concluding chapter, on the then new Chief Justice John Roberts, correctly assesses that Roberts would share the judicial temperament that Rosen values so highly. It has to be said that Rosen gives each of the ideologues his due, noting his own important contributions, and honors the complexity of history and human nature.
July 22, 2024
As someone who's read a handful of legal histories and those on specific justices, this book was a unique experience. Four of these justices I knew very little about outside of a few landmark cases. But besides comparing personalities, this book also did a good job of giving the social context to the matters that were happening at the same times as the Justices were working. It also put a juxtaposition between where and how each started and ended up.
While I'd be very curious to see what some of the opening statements and assumptions as well as the forecasting would be written like today, I found this more compelling that I initially assumed I would. A few highlights came with a look at the Justice's approaches and tactics. I knew I was not alone in my bristling at the implication of Scalia's opinions but none-the-less admiring of his wit, I hadn't been aware that he was intentionally 'entertaining' so that he might be more quotable and thus even in dissenting his opinion would prove more memorable than perhaps even the verdict. I appreciated the author's analysis on what made the more effective vs. the more embraced Justice. And I confess that had no idea how whiplash Black was.
despite the elements of the intro that date this a bit, I think anyone without an in depth knowledge of the court but a moderate one will find this worth their time.
While I'd be very curious to see what some of the opening statements and assumptions as well as the forecasting would be written like today, I found this more compelling that I initially assumed I would. A few highlights came with a look at the Justice's approaches and tactics. I knew I was not alone in my bristling at the implication of Scalia's opinions but none-the-less admiring of his wit, I hadn't been aware that he was intentionally 'entertaining' so that he might be more quotable and thus even in dissenting his opinion would prove more memorable than perhaps even the verdict. I appreciated the author's analysis on what made the more effective vs. the more embraced Justice. And I confess that had no idea how whiplash Black was.
despite the elements of the intro that date this a bit, I think anyone without an in depth knowledge of the court but a moderate one will find this worth their time.
March 3, 2025
History has not been kind to this book. The writing is very easy to read, the research seems well done, and the history is engaging. But nearly every argument seems to be a swing and a miss, except for the Marshall/Jefferson chapter.
To be fair, “judicial success” is basically impossible to quantify. So writing a book arguing that the “most successful” justices are the ones with the best temperament is effectively trying to create an equation for two difficult to define integers. But at this point in 2025, the court’s legitimacy is in tatters. And that’s with a “‘modern day Marshall” at the chief justice position. In classrooms all across the country, you learn about Holmes and Frankfurter and Powell and, more than anyone else, Scalia. Every rule and judicial assessment levied by JMHarlan and Black and Douglas are being eviscerated by Scalia-types, now with the help of Roberts. It’s an interesting argument on its face. It just doesn’t hold up 18 years later.
To be fair, “judicial success” is basically impossible to quantify. So writing a book arguing that the “most successful” justices are the ones with the best temperament is effectively trying to create an equation for two difficult to define integers. But at this point in 2025, the court’s legitimacy is in tatters. And that’s with a “‘modern day Marshall” at the chief justice position. In classrooms all across the country, you learn about Holmes and Frankfurter and Powell and, more than anyone else, Scalia. Every rule and judicial assessment levied by JMHarlan and Black and Douglas are being eviscerated by Scalia-types, now with the help of Roberts. It’s an interesting argument on its face. It just doesn’t hold up 18 years later.
This entire review has been hidden because of spoilers.
August 7, 2018
A good discussion of four sets of supreme court justices from the beginning until present day. Pretty good discussion of the pairs but I can't say how widely accepted his conclusions are. They seemed good to me but I have no knowledge of the men to make a solid judgment. Like another book I recently read, this author also tries to make some judgments about current day justices. But like the other author, I think he was also not as objective as he thought he was being.
He would take one person and say they mostly lived by their convictions and then take another person and say they sometimes didn't live by their convictions. Saying it one way makes them sound good while saying the other way - not so much.
But an interesting book and the conclusion about what type of personalities works was thought-provoking.
He would take one person and say they mostly lived by their convictions and then take another person and say they sometimes didn't live by their convictions. Saying it one way makes them sound good while saying the other way - not so much.
But an interesting book and the conclusion about what type of personalities works was thought-provoking.
November 17, 2021
This book was a good idea, and had some interesting information, but was poorly executed. The book discusses four pairs of historic figures who interacted with each other at various points in the courts history. Unfortunately, the central argument is muddled, it becomes unclear whether Rosen is arguing that personality/personal interactions matters most or ideology. Part of the issue is that while most pairs are two contemporary SCOTUS justices, the starting point is Chief Justice John Marshall and President Thomas Jefferson. Along the way, Jefferson tends to be the primary touchstone that Rosen returns to, despite being a politician and philosopher, rather than a judge or legal expert. Jefferson is a figure worthy of study, but he is a poor fit for this type of analysis of the Supreme Court.
If you are interested in this subject, I would suggest finding a different book.
If you are interested in this subject, I would suggest finding a different book.
October 23, 2016
A rather heavy read at times, this book of contrasts on the Supreme Court Judge is interesting in part because of how unpredictable it seems, at times, to understand exactly how appointed judges will eventually vote. Some have proved themselves capable of crossing their liberal or conservative leanings. Some have become more liberal or conservative over time. All-in-all an interesting book about Supreme Court personalities and how the court struggles with the meaning of the court. Should it always try to uphold the original intent of the constitution or should it reflect the times in which we live? This is the constant question.
July 8, 2020
Although at this point in need of another chapter, or at least an appendix, I found Rosen’s writing to be challenging and expository. Reading as a story instead of a biography or history text, the book’s comparisons between contemporary judges helps to explain various generations of justices and their individual motivators. I haven’t seen the companion PBS series, the book reads how I would expect such a TV series to sound. Personally, taking the time to read the book is preferable for me to watching.
November 28, 2025
Interesting as a historical review of different justices, but the aspect of rivalry was a bit contrived. I enjoyed learning about the various justices and their individual approaches to legal issues. The book was clear and well written on those aspects. But I didn't walk away thinking that the personalities highlighted here were somehow the critical ones. I also found some of the pronouncements quite overstated; eg I don't think Anthony Scalia fans, of which there are many, would consider his time on the bench to be a failure. [audiobook]
October 21, 2023
Great book!!
Given that this was published shortly after John Roberts finished his first term as Chief Justice of the Supreme Court of the United States, i hope Jeffrey Rosen publishes an updated version of this book that provides an analysis of how Roberts has lead the Supreme Court in his 18 years as the Chief Justice so far. Also hope he includes more info about other rivalries on the Supreme Court.
Given that this was published shortly after John Roberts finished his first term as Chief Justice of the Supreme Court of the United States, i hope Jeffrey Rosen publishes an updated version of this book that provides an analysis of how Roberts has lead the Supreme Court in his 18 years as the Chief Justice so far. Also hope he includes more info about other rivalries on the Supreme Court.
August 30, 2019
I’ve read a number of books about Constitutional law and the Supreme Court. This book takes a practical look at personalities. It is a quick and easy read. It has a very relevant take on Supreme Court justices: judicial temperament. The book is well written, balanced and, I would argue, quite shrewd.
August 9, 2023
The author definitely has his favorites in this one. He compares and contrasts Supreme Court justices who served together and recounts their rulings and styles.
Two of the justices, Harlan and Holmes are biographies that I have yet to read and this book gives an introductory look at them.
Recommend if you’re into the Supreme Court and the justices.
Two of the justices, Harlan and Holmes are biographies that I have yet to read and this book gives an introductory look at them.
Recommend if you’re into the Supreme Court and the justices.
August 2, 2017
The Supreme Court is a book that has many cases that have gone through the government. this book is about all the important cases that helped shape America into what it is now and how they resolved every case.
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