Battles on the Bench: Conflict Inside the Supreme Court

by Phillip J. Cooper

Overview

Felix Frankfurter's blustery depiction of debate within the Supreme Court suggests that combat sometimes supersedes collegiality in those hallowed halls. In fact, as Phillip Cooper shows, conflict is an inescapable fact of life in the Marble Temple.

Cooper peels back the calm, quiet public image of our judicial royalty to reveal their "family" feuds and squabbles. He shows that, whether motivated by deeply felt principle or by petty and vindictive impulses, these disputes dramatically shape the court's decision-making process, the justices' relations with one another, and the public's perception of the court.

Filled with wonderful vignettes and telling anecdotes, Battles on the Bench illuminates the court's legendary and little-known clashes from John Marshall to Ruth Ginsberg and helps us understand why they fight, how they fight, and why their fights matter. In the process, it reveals a long tradition of strategic flattery, cajolery, name-calling, threats, subterfuge, and sermonizing-all in an effort to win over or run over fellow justices.

Conflict in such high-stakes circumstances is hardly unexpected. But some of the court behavior is: Fred Vinson going after Frankfurter with a clenched fist and shouting that "no son of a bitch can ever say that to me!"; Frankfurter's dismissal of Justice Reed's intellect as "largely vegetable"; James McReynolds' undisguised anti-semitism toward Louis Brandeis; Antonin Scalia's harsh attacks on Sandra Day O'Connor; and William Rehnquist's sarcastic recital of a nursery rhyme and the "Star-Spangled Banner" before his startled brethren.

Cooper, however, makes clear that to a surprising degree these justices do find ways to work together. As Earl Warren noted, life on the Court is like a marriage-one can't tolerate it if it's one battle after another. Appointed for life and completely independent, these "nine scorpions in a bottle" are nevertheless compelled to furl their stingers from time to time-for no justice can prevail without the support of at least four others. Indeed, one of the toughest questions Cooper tries to answer is why they don't fight more often.

A rich treasure trove mined from the vast resources of judicial biography, Cooper's engaging study will be especially appealing to students and general readers with limited knowledge of the court's inner workings.

Product Details

ISBN-13:	9780700609666
Publisher:	University Press of Kansas
Publication date:	12/06/1995
Edition description:	Revised ed.
Pages:	236
Product dimensions:	6.00(w) x 9.00(h) x (d)

Table of Contents

Preface

1. The Symbolic Handshake

2. Why Do They Fight?

3. How Do They Fight? The Professional Fights

4. How Do They Fight? Internal and Personal Battles

5. What Difference Does it Make?

6. Why Don't They Fight More Often?

7. Nine Scorpions in a Bottle or the Most Collegial Institution in Town?

Appendix: Justices of the United States Supreme Court

Notes

Selected Bibliography

Opinions Cited

Index

Editorial Reviews

"Cooper has made a contribution to scholarship and public understanding of the Court from which others can build."—ABA Journal

"Cooper is precise in his history. He explains who has done what and how certain conflicts came to be."—Public Relations Review

"[Cooper’s] analysis of the reasons why conflict is not more extensive and serious is one of the most interesting and distinctive elements of the book."—American Political Science Review

"In a nutshell, Battles on the Bench discusses the history of conflict among the justices in an entertaining and colorful style. The book succeeds in helping us to understand the Supreme Court as a unique political institution and in reminding us that the justices, like the rest of us, are merely human."—American Journal of Legal History

"A superb study of conflict in the Supreme Court. Cooper has produced a work that is in many ways seminal. He has also done an excellent job of classifying the nature, types, and consequences of conflict on the Court, illustrating each with amusing, touching, gripping, shocking, and at times profound anecdotes. Highly recommended."—Tinsley E. Yarbrough, author of John Marshall Harlan: Great Dissenter of the Warren Court and Mr. Justice Black and His Critics

"Cooper’s book in some ways covers ground found in The Brethren but is superior to that book. He weaves a fascinating story and provides sound political analysis."—Sheldon Goldman, author of Constitutional Law and Supreme Court Decision Making

From the Publisher

Cooper (liberal arts, U. of Vermont) reveals both the ideological and the petty conflicts within the Supreme Court throughout its history, and how they have shaped the Court's decision-making process, the justices' relations with one another, and the public's perception of the Court. He uses vignettes and anecdotes to illuminate the clashes, and discusses why justices fight and why it matters. Of interest to students and general readers. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Booknews

In recent correspondence, Charles Cameron -- a student of the legislative process at Columbia University -- explained to me why scholars working his field find Richard Fenno's work so attractive: Fenno always has a model in mind when he tells his stories, and he has wonderful, on-point data for his models. Reading his books makes a theorist's fingers itch to write down models, either to formalize his implicit perspective or to explain the fascinating stylized facts' his implicit models allow him to see as important and report. There is a repeated "Ah-ha" effect that has an overwhelming impact on the reader. I think political scientists who study law and courts would make the same kinds of claims about Walter F. Murphy's ELEMENTS OF JUDICIAL STRATEGY and David J. Danelski's a SUPREME COURT JUSTICE IS APPOINTED. Both books, while chock-full of stylized facts, have a model they seek to develop; and both have that "finger-itching" quality Cameron finds so appealing in Fenno's work. Judged by these criteria -- criteria reasonable to apply to any scholarly book largely composed of stories -- Cooper's BATTLES ON THE BENCH comes up short. While the volume makes my fingers "itch," it lacks a point. Cooper wanders aimlessly from one story to the next, without offering explanations, morals, or even punch lines -- much less having a model in mind. Worse still, many of his stories are only half stories, some of his claims either lack any sort of empirical basis or are contradicted by existing data, and virtually nothing he writes is informed by modern-day theories of the judicial process. The trouble starts in the first few pages of the book in which Cooper lays out his key concerns. Primarily, he writes, BATTLES is "about conflict in the United States Supreme Court" (ix). Of course, "conflict" is an interesting subject but some of the reasons he offers for studying it are too simplistic. The first begins with Cooper noting that "The justices continue the ritual of the handshake to this day, but they have also been known, symbolically at least, to shake fists as well....Yet it is hard to think about conflict in the Supreme Court. We have no difficulty discussing clashes between the Court and other levels or branches of government, but within the Court itself? Many Americans would consider the notion tantamount to contemplating fist fights in the College of Cardinals" (p. 1). I had to read these sentences several times. I can't imagine in this day and age -- when the media regularly report on tensions within the Court, when dissents have become an institutionalized feature of Supreme Court decision making, when confirmation proceedings typically focus on candidates' ideological predilections, and when THE BRETHREN (though now quite dated) was a bestseller and continues to be used in classrooms -- that anyone would make this claim or that anyone would buy it. Page 24 follows: Surely Americans (at least the few who think about the Court) don't believe it is the monastery that Felix Frankfurter once so hypocritically deemed it. A second justification Cooper offers for the study is a void in the literature: "Given the importance of conflict in the history of the Court, it is surprising that so little has been written about the subject and what has been written centers largely on voting alignments in particular cases with a bias by commentators toward reducing fragmentation in opinions" (p. 3). This was another sentence I had to read twice, for it is so stunningly wrong. As virtually all political scientists who study the Court acknowledge, the field of judicial politics owes its origins to C. Herman Pritchett's (1941, 1948) observation that conflict exists on the Court. Prior to Pritchett's writing, many political scientists would have bought Cooper's claim that justices fight about as much as do members of the College of Cardinals. But, as Pritchett so insightfully asked, if this was so, if justices made decisions on the basis of a well-established "canon" of principles, then why do various justices in interpreting the same legal provisions consistently reach different conclusions on important issues of the day? By merely raising this question, Pritchett propelled generations of scholars to study not only Supreme Court votes but to explain trends in conflict over time as well. So why Cooper makes the claims he does is puzzling. The justifications he offers also bring into question the audience for the book. Most scholars, I believe, would find Chapter 1 just as retrograde as I did and, for that reason, would think twice before assigning it to students to read. I can imagine many readers signing off by page 8. Of course, as a reviewer, I was forced to plunge forward and, in some sense, I'm glad I did. This is not because the book becomes any more sophisticated or analytical in the ensuing chapters. Indeed, the material forming the heart of the book -- Chapter 2 (Why Do They Fight?), Chapter 3 (How Do They Fight?: The Professional Fights), and Chapter 4 (How Do They Fight: Internal and Personal Battles) -- only serves to shore up my claim that, unlike Fenno, Murphy, or Danelski, Cooper writes with no model or point in mind. Take Chapter 3 in which Cooper provides examples of the ways internal Court conflicts manifest themselves professionally: dissenting opinions and dissents from denials of certiorari, "named attacks in footnotes," presentation of dissents in open court, and clashes over court operations, to name just a few. For each of these, Cooper relies on vignettes that he put together from public case records and the papers of various justices. So we read that Brennan and Marshall "issued increasingly harsh dissents from denials of stays in the death penalty cases...principally because of their fundamental opposition to the death penalty itself, but also because they came to feel that there was a rush to judgment in which important issues and cases were simply ignored;" and that "Chief Justice Warren was generally opposed to dissents from denials, but neither he nor any of his successors have been able to put a stop to the practice or even to curb its expansion... [because] they are a device by which justices can vent their anger at the unwillingness of the Court to undertake critical decisions that are in the dissenters' view essential" (pp. 65-66). Page 25 follows: This is all well and good, but what do we really take away from these observations? Why have dissents from denials increased (if, in fact, they have; the data Cooper offers come from O'Brien [1996, 241-242], which only provides numerical figures for the 1980-81 and 1987-88 terms)? Why are such increases important? I could raise the same sorts of questions about virtually all of Cooper's manifestations of conflict for, within the substantive chapters, he provides almost no answers. And he doesn't even do so in Chapter 5, though surely with the propitious-sounding title of "What Difference Does It Make?" Cooper fully builds up expectations; finally, I'd get some answers to the very question that had been in the forefront of my mind for the past 122 pages. But such was not to be. Rather than focus on the kinds of answers scholars would find interesting and important (such as, "Conflict has implications for law emanating from the Supreme Court because___________"), Cooper invokes the word "hurt" (and various synonyms) a lot: "Words do HURT and when they come from peers and colleagues with whom one must work every day and on whom one must depend for support, they hurt even more" [emphasis added] (p. 123); Thurgood Marshall, owing to perceived disrespect or attempts at manipulation, felt "what might be called unarticulated injuries, slights that [Marshall] never mentioned but that nonetheless HURT and conditioned his relationships with others" [empasis added] (p. 137). Not all of the material in this chapter is so trite; indeed, there are a few portions in which Cooper verges on saying something significant but, unfortunately, stops short. Consider a section titled "External Views of the Court Can Be Affected," in which I thought Cooper might invoke data in Eskridge's seminal law review article, showing that Congress is more likely to override fragmented Court decisions than unanimous ones. This would have been a clever way for Cooper to have illustrated the consequences of conflict but, instead, he largely describes how the press chronicles the Court: "The battles of the 1970s over abortion and affirmative action brought a new visibility [to the Court]" (p. 149). Not only does this statement undermine the book's initial contention that Americans view justices as Cardinals, but it and the surrounding material also underscore BATTLES' inability to engage in serious and meaningful analysis. Why, then, am I glad I read this book? The answer takes me back to my starting point: Despite the fact that Cooper has no "model in mind when he tells his stories," his book made my "fingers itch to write down models, either to formalize his implicit perspective or to explain the fascinating stylized facts'." Let me provide but one illustration. In trying to show why justices fight, Cooper writes that "The ideological premises that motivated Marshall and Powell were too deeply held to be reconciled" (p. 15), with their division over the resolution of BAKKE a case in point. To be sure, as Cooper notes, Marshall was highly critical of Powell's approach, going so far as to craft a rather harshly-worded response to various memoranda Powell and others had circulated prior to opinion assignment. Cooper reproduces Marshall's memorandum but he never finishes the story. A review of Brennan's case files shows that after Powell circulated a draft of his BAKKE opinion, Marshall wrote back that he would "not join Page 26 follows: any part of the opinion" and that he planned to dissent "in toto." This led Brennan to conclude that "with such evident ill-will and sensitivity in the background, it would be difficult to win Marshall's vote." But, at the end of the day, Marshall retreated from his adamant position, and joined part of Powell's judgment. Why Marshall took this course of action is a fascinating puzzle -- the solution to which probably lies in his goals, his perceptions of the goals of his colleagues, institutions, and so forth. And it is a puzzle just begging for a solution, as are many others that researchers could extract from this book. So, for scholars interested in solving puzzles, in writing down models, I strongly recommend BATTLES; I guarantee that it will make their "fingers itch." For those who want the author to do most of the work -- a not altogether unreasonable expectation -- I believe that the University of Chicago Press still stocks ELEMENTS OF JUDICIAL STRATEGY. References Danelski, David J. 1964. A SUPREME COURT JUSTICE IS APPOINTED. New York: Random House. Eskridge, William N. Jr. 1991. "Overriding Supreme Court Statutory Interpretation Decisions." YALE LAW JOURNAL 101: 331-417. Murphy, Walter F. 1964. ELEMENTS OF JUDICIAL STRATEGY. University of Chicago Press. O'Brien, David M. 1996. STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS. New York: W.W. Norton. Pritchett, C. Herman. 1941. "Divisions of Opinion Among Justices of the U.S. Supreme Court." AMERICAN POLITICAL SCIENCE REVIEW 35:890-898. Pritchett, C. Herman. 1948. THE ROOSEVELT COURT. New York: Macmillan.

Lee Epstein