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Experts Offer Glimpse into Workings of Supreme Court

The Supreme Court's responsibility as upholder of the Constitution at times puts it in the spotlight when controversy arises. Two authors of recent books Jeffrey Rosen and Jan Crawford Greenburg discuss the court's place in history and the makeup of the current bench.

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    Now, two veteran court watchers offer some perspectives on the U.S. Supreme Court.

    In "The Supreme Court: The Personalities and Rivalries That Defined America," George Washington University Law Professor Jeffrey Rosen examines the importance of judicial temperament throughout the court's history.

    Jan Crawford Greenburg, former NewsHour regular and now a legal correspondent for ABC News, looks at the making of the current court in "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court."

    I talked with them recently in the Moot Court Room at the George Washington University Law School.

    Well, Jeffrey Rosen, Jan Crawford Greenburg, between your two books we get 220 years of court history. Was it always clear that the Supreme Court, Jeffrey Rosen, was going to be the important institution that it became?

  • JEFFREY ROSEN, George Washington University:

    Certainly not. When John Marshall, the greatest chief justice, took over, it was a backwater. The court met in the basement of the Capitol. People kept turning down the job of chief justice, because it wasn't considered important enough. Congress refused to allow the court to meet for two years.

    It was not a prestigious job, by any means. And the progress of the court from that embattled backwater to the strong, self-confident institution we know today is largely a reflection of the personalities that made it up. That's what's so striking: It really is character and temperament that made the court into the strong institution.


    Well, you put a lot of store in your story in the personal attributes of these men who became both associates and chiefs over the years. Was this something that you even understood at first? How important personality, temperament was?


    No, I was so struck by this. I just thought, why not pair justices? Take a pragmatic justice who's able to compromise with a brilliant justice who's more interested in ideological purity. And I found in these pairings that the brilliant ideologue was less successful than the pragmatic justice.

    And it's surprising. Take Oliver Wendell Holmes and John Marshall Harlan. Holmes is a great liberal icon. People think he was a great defender of civil rights, but it was actually the opposite.

    He was a radical majoritarian, based on his experience in the Civil War. He said, "I hate justice. If my fellow citizens want to go to Hell, I will help them. It's my job." He almost never met a law he was willing to strike down, and he upheld some of the darkest laws that were passed by Congress, including those subverting African-American voting rights.

    By contrast, John Harlan, a former slaveholder, the only southerner on the court, less brilliant than Holmes. Holmes condescended to him and said, you know, he was the last of the great "tobacco-spitting judges." He was very emotional and moralistic.

    But Harlan, based on his experience in the Civil War as a practical politician, understood the central achievement of Reconstruction, wrote that great dissent in Plessy v. Ferguson, objecting to the court's decision to uphold railway segregation, and, because of his personal experience, was able to foreshadow the great Civil Rights revolution that the Warren Court wouldn't recognize for almost a century.

    It's an incredible lesson about the importance of judicial temperament.

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