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Tuesday, January 27, 2015

The Supreme Court: The Personalities and Rivalries That Defined America by Jeffrey Rosen | LibraryThing

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)

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