Justice Fever

The baloney in two new books about the Supreme Court.

What forces—personal and political—drive the decisions of the Supreme Court? In Supreme Conflict, veteran legal journalist Jan Crawford Greenburg promises the “Inside Story of the Struggle for Control” of the modern court, as her subtitle proclaims. George Washington University law professor Jeffrey Rosen takes a more historical approach. In his new book, The Supreme Court: The Personalities and Rivalries That Defined America, he seeks to explain how the character and temperament of leading justices have shaped the American Constitution and national identity.

Greenburg’s book comes hyped as the latest iteration of The Brethren, the 1979 book by Bob Woodward and Scott Armstrong that was the first to crack the court’s locked-up and buttoned-down culture. Greenburg interviewed nine justices for her book, no mean feat. The problem is that they don’t seem to have told her anything very enlightening. The story she tells about the modern court—with the important exception of her view of Clarence Thomas—is familiar to anyone who follows the court.

The basic plot points: For the last 20 years, “centrist” Justices Sandra Day O’Connor and Anthony Kennedy have been the swing votes on the court, and have prevented the rightward shift advocated by hard-liners like Justice Antonin Scalia. Various Republican presidents blew several chances to appoint more Scalias. All this might change now, however, because this Bush administration, thanks partly to its false start with Harriet Miers, succeeded in placing on the court two serious right-wingers, John Roberts and Samuel Alito, and, in Roberts’ case, in the chief justice’s chair.

Like others, most notably Linda Greenhouse of the New York Times in her book Becoming Justice Blackmun, Greenburg has mined the papers of former Justice Harry Blackmun for details from the justices’ internal deliberations. She tells the important story of how Justice Kennedy reversed his initial views in favor of overturning Roe v. Wade and allowing prayer in public schools, torpedoing a big chunk of the right-wing agenda. And with some new specifics, Greenburg effectively portrays the two sides of Justice O’Connor—the heroic trailblazer as the court’s first woman, and the grudge-holder whose center-right positions were shaped partly by resentment toward liberal former Justice William Brennan, and then Scalia, for their barbed criticism of her opinions.

Greenburg’s engaging reportage, however, is marred by serious analytic failures. Her dogged insistence on describing every act of every justice as either “liberal” or “conservative” distorts the court’s debates. Rehnquist and Scalia, for example, may both fairly be described as “conservative,” but Scalia’s conservatism is tempered by a libertarian streak foreign to Rehnquist. Greenburg misses how these crosscurrents affect the court’s decision-making.

Greenburg also isn’t a particularly savvy reader of court politics. In interviews and a Wall Street Journal op-ed, she has touted the big surprise in her book—that Clarence Thomas, far from being a Scalia clone, drew Scalia into his own orbit. Here, Greenburg lets her desire for novelty and revelation steer her down a rabbit hole. It’s true, as Greenburg argues, that Thomas is no Scalia-parroting dullard. In fact, Thomas is a more radical version of Scalia because he does not believe in standing by any precedent (previous ruling) of the court’s that he considers wrong. But Greenburg further claims that from the moment Thomas arrived, the force of his arguments meaningfully altered Scalia’s views. This is risible.

As evidence for her theory, Greenburg relies on a few cases from Thomas’ first term in which Scalia initially voted against Thomas’ dissenting position, but eventually switched over to join Thomas in dissent. It does not seem to have occurred to her that Scalia might have joined Thomas to cultivate and buck up a beleaguered ally—early on and in cases in which the switch would make no practical difference. Scalia had also tried to woo Kennedy and David Souter early in their tenures. Thomas, unlike the other two, made it easy. Rather than blazing his own intellectual path, Thomas adopted Scalia’s controversial method of judicial interpretation (originalism, which treats the meaning of the words in the Constitution as fixed according to the framers’$2 18th-century understanding of them). For Scalia, joining Thomas was costless.

Rosen approaches the court from an entirely different angle. Part scholar, part popularist, he has fashioned a set of Plutarchian pairings of leading legal figures that combines fine biography with nuanced discussions of jurisprudential debates, from the founding to the present. Rosen’s working thesis is that academic brilliance or theoretical rigor among the justices is vastly overrated. His Supreme Court heroes are principled pragmatists whom he thinks were serious about separating law from politics, but not such purists as to ignore the politics of their times. In each pairing (Thomas Jefferson and John Marshall, Oliver Wendell Holmes and John Marshall Harlan, Hugo Black and William O. Douglas, William Rehnquist and Antonin Scalia), Rosen pits an erratic or embittered genius against a far-seeing institution builder.

Thus, Rosen belittles Jefferson for his utopianism while lionizing Marshall for mediating between the early 19th-century factions on his court to win a series of unanimous opinions establishing the principle of judicial review and elevating national power over states’ rights. Rosen’s most loving portrait is that of Justice Hugo Black, the former Klansman, whose sensitive reading of constitutional history led him to champion civil rights and civil liberties—until, with the help of Justice Douglas, the Warren Court unmoored itself from the Constitution’s text and lost sight of the proper bounds of judicial discretion.

Rosen had me on the first page, and right up to Black’s death in 1971. But then he starts rewriting history to suit his thesis. As a contrast to the hard-charging Scalia, Rosen portrays Rehnquist as a pragmatist who modulated his views to create greater consensus and increase the court’s institutional legitimacy.

This is mostly baloney—and you get the sense Rosen kinda knows it. He concedes that Rehnquist probably lied at his confirmation hearings to get on the court, and then led the way on Bush v. Gore, a case Rosen once called an act of integrity “suicide.” And to praise Rehnquist for consensus-building is to ignore the Rehnquist Court’s habit of splintering into so many factions in many important cases that no majority emerged for any position.

Rosen also exaggerates the degree to which Rehnquist modified his own beliefs. Most egregious is Rosen’s claim that, even though Rehnquist originally opposed Brown v. Board of Education as a law clerk for Justice Robert Jackson, upon becoming a justice himself, he “made no attempt to dismantle the civil rights revolution” because of his “reverence” for the court and for majority rule. Really? In 34 years on the court, Rehnquist almost invariably voted to restrict civil rights and voting-rights enforcement and to deny remedies to minority groups. Maybe Rehnquist never voted directly to overturn Brown, but to me that looks an awful lot like dismantling (or evisceration).

Some of the same unreality clouds Rosen’s concluding portrait of John Roberts. Despite the new chief justice’s fairly consistent hard-right record, Rosen sees him as a Marshall-like figure who is bringing much greater unanimity to the polarized court. This depiction contrasts sharply with Greenburg’s, who casts Roberts as more ideological. It’s too soon to say who’s right—and we’d all be better off if Rosen is. But one senses he is an idealist desperate for a hero in a depressing age. In the end, Greenburg may prove the better judge of character.