The Supreme Court: The Personalities and Rivalries That Defined Americaby Jeffrey Rosen, Alan Sklar (Narrated by)
A leading Supreme Court expert recounts the personal and philosophical rivalries that forged our nation's highest court and continue to shape our daily lives. The 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.
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Read an Excerpt
On April 8, 1952, to prevent an imminent steelworkers’ strike that he thought would cut off the flow of guns to U.S. troops in the middle of the Korean War, President Harry S. Truman decided to use his authority as commander in chief to seize the nation’s steel mills. His decision would provoke more criticism than any other in his presidency. But Truman had been emboldened to act in part because of confidential advice from Chief Justice Fred Vinson, whom Truman had appointed to the Supreme Court in 1946. When Truman informed Vinson in advance of his intention to seize the steel mills, the chief justice assured his friend the president that the seizure would be legal under his executive powers and that a majority of the Court would support it. Vinson’s advice turned out to be wrong. In June, two months after the president issued his executive order, the Supreme Court declared in Youngstown Sheet & Tube v. Sawyer that Truman had acted unconstitutionally. Writing for a 6–3 majority, Justice Hugo Black declared that the Constitution gives Congress, not the president, the power to make laws, and Congress had refused to authorize this heavy-handed approach to settling labor disputes. Black read his opinion for the Court from the bench. “Even though ‘theater of war’ be an expanding concept,” he drawled in his calm and deliberate southern accent, “we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.” Although an ardent Democrat as well as a former senator, Black revered the institution of the Supreme Court as something larger than the individual justices who composed it, and masterfully persuaded a majority of his colleagues to enforce the limits that the Constitution places on the president’s power. Vinson filed a sputtering dissent insisting that any president worthy of the office should be free to take emergency measures necessary to ensure the “survival of the nation.” Truman was understandably livid at his rebuke by a Court that had been appointed entirely by him or by his Democratic predecessor, Franklin D. Roosevelt. But Black soon made amends by inviting the aggrieved president and the entire Court over to his house in Alexandria, Virginia, for bourbon and a barbecue. As the canapés were passed around, the mollified Truman declared, “Hugo, I don’t much care for your law, but, by golly, this bourbon is good.”1
Fifty-four years later, a similar drama unfolded at the Supreme Court. President George W. Bush, seeking to protect the nation after the terrorist attacks of September 11, 2001, issued an executive order creating special military commissions to try suspected enemy combatants who were being held at Guantánamo Bay. His decision, combined with other assertions of unilateral presidential power to authorize something close to torture or indefinite detention of suspected terrorists, provoked more criticism than any other in his presidency. Bush had been emboldened to act in part because his legal advisers had assured him that unilateral action would be upheld as constitutional under his powers as commander in chief, and also, perhaps, because the chief justice he had recently appointed, John G. Roberts, Jr., had sustained Bush’s action as an appellate judge. When the Supreme Court heard the case in 2006, Roberts properly recused himself because of his earlier participation in the case, but Bush still had reason for optimism: seven of the nine justices were Republican appointees, including an associate justice appointed by Bush, Samuel A. Alito. In Hamdan v. Rumsfeld, however, by a vote of 5–3, the Supreme Court held that the president’s military commissions were illegal. In his opinion for the Court, Justice John Paul Stevens emphasized that the president could create military commissions only with congressional support, and Congress had refused to give Bush the power to create the military commissions at issue in the case. In an emotional dissenting opinion, which he read aloud from the bench (only the second time he has done so in his fifteen years on the Court), Justice Clarence Thomas declared that the majority had endangered the nation by “sorely hamper[ing] the President’s ability to confront and defeat a new and deadly enemy.” Thomas, like Vinson, insisted that the president’s inherent authority as commander in chief was broad enough to allow him to act unilaterally in times of war.
The impassioned performances by two justices—Black in 1952, Thomas in 2006—open a window onto the Supreme Court. In many respects, the similarities between Black and Thomas are striking. Both were appointed young to the Court by a president who relished the opportunity to put a stick in the eye of his congressional opponents. Black, a southern white liberal, was Franklin D. Roosevelt’s first appointment after his bitter defeat over expanding the Court’s membership in 1937; Thomas, a southern black conservative, was George H. W. Bush’s choice to replace the civil rights icon Thurgood Marshall in 1991. Both had been on the Court for exactly fifteen years when these cases about presidential power in wartime came before them—long enough to accustom themselves to the Court’s peculiar rituals and to find their jurisprudential voices. And both men considered themselves strict constructionists and constitutional fundamentalists who refused to enforce rights that did not appear explicitly in the Constitution and believed that the constitutional text should be construed in light of the original understanding of its framers and ratifiers.
Despite these similarities in background and judicial philosophy, Black and Thomas differed in one crucial respect: judicial temperament. Black revered the institution of the Court so passionately that when he proposed marriage to his secretary, Elizabeth (six years after the death of his first wife), he made a little speech about how he had been having a love affair with the Court for almost twenty years, and therefore she had to be, like Caesar’s wife, above reproach: “I have to know that the woman I marry is a one-man woman,” he declared.2 This reverence led him to moderate or to rein in his strict constructionist ideology when he thought the good of the Court and the country required it. As a result, he became one of the most influential justices of his era, redefining large areas of American law in his own image. Thomas, by contrast, is an ideological purist, more interested in being philosophically consistent than in persuading colleagues to embrace his vision. He is so zealous in his devotion to carrying every principle to its logical conclusion that his ideological ally Justice Antonin Scalia told Thomas’s biographer that Thomas would overturn any judicial precedent with which he disagreed, whereas he, Scalia, wouldn’t do that.3 Thomas is underrated as a constitutional lawyer in the popular imagination: his Hamdan opinion, like much of his work, was exhaustively researched, and his colleagues have praised his technical ability in complicated regulatory cases. But because Thomas approaches the law as an essentially academic enterprise, he is content, after fifteen years on the Court, to marginalize himself in lonely dissenting opinions, without any immediate prospect of winning majorities. Even if Thomas had the option of ruling against the president and then inviting him over for drinks in the interest of the Court—a form of interbranch socializing that is no longer thinkable in a post-Watergate age—it seems unlikely he would have the inclination to do so.
The difference between Black and Thomas shows the importance of judicial temperament on the Supreme Court. Those who have it find that the Court is their oyster; those who do not are often condemned to grumbling on the sidelines. And this has been the story of the Supreme Court from the beginning.
Copyright © 2007 by Jeffrey Rosen. All rights reserved.
Meet the Author
Jeffrey Rosen is a professor of law at George Washington University and the legal affairs editor of The New Republic.
Audie Award finalist Alan Sklar has narrated nearly two hundred audiobooks and has won several AudioFile Earphones Awards.
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This was a great book. It was a fairly short read but it covered the most influential figures on the bench. The author focused on temperament and how each judge's temperament changed and influenced the bench. Each chapter would compare and contrast two judges from the past to present. I really enjoyed this book. It was interesting and the reader was able to see how individual personalities really did affect how they ruled and the political leanings of the Supreme Court. I definitely recommend this to anyone who is interested in learning a little bit about the U.S. Supreme Court.
This is a well written, interesting and informative tome. My only regret is that it was not available to me when I was studying Constitutional Law in law school. I gained so much insight, not only about the inner workings of the Supreme Court, but of the incredible interplay among the Justices, their personalities and the impact it had on their ultimate decisions/opinions. I agree with Professor Rosen's conclusion that "temperment" is perhaps the most important quality a judge should possess. This book should be required reading for all 1L students studying Constitutional Law and is highly recommended to all members of the bench and bar.