Tuesday, September 11, 2007

Book Review: Rosen, "The Supreme Court

I just finished reading Professor Jeffrey Rosen's book, The Supreme Court: the Personalities and Rivalries that Defined America. It should be noted that marketing experts at publishing houses, not authors, create titles for books. Thus, one should not blame Mr. Rosen that the subtitle goes well beyond what the author of the book claims. Mr. Rosen does not to set out to show what personalities and rivalries helped to define America; he only attempts to explain why certain personalities were more effective than others in shaping American jurisprudence.

Mr. Rosen's thesis is that judicial temperament, more than other characteristics such as judicial philosophy or ideology, is the primary factor in determining the longstanding effectiveness of key figures in the history of American jurisprudence. In order to substantiate that claim, he expounds on four key rivalries in the history of the court: John Marshall and Thomas Jefferson, John Marshall Harlan and Oliver Wendell Holmes, Hugo Black and William O. Douglass, and William Rehnquist and Antonin Scalia. By his overview, Mr. Rosen seeks to show that the former individual in each of those pairings had a more lasting influence due to differences in judicial temperament.

There is much to be said for that thesis, but Mr. Rosen's argument is weakened somewhat by his rather elastic use of the term judicial temperament. In different situations, that term seems to be used to refer to a judge's collegiality, the ability to get along with those on the other side of a philosophical divide, a willingness to moderate positions, a philosophy that is not prone to taking extreme positions, industriousness in writing opinions, and a discipline in personal lifestyle choices. The elasticity of what Mr. Rosen includes under the heading of judicial temperament allows him to claim one overarching reason for judicial effectiveness, when in reality a number of factors come together to make one judge more effective than another.

That being said, Mr. Rosen's depictions of the various key figures that he discusses are interesting and informative. This book is very much worth the time of anyone with an interest in the court.

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