ROBERT SIEGEL, host:
Now Jeffrey Rosen's new book called "The Supreme Court." It's a companion book to a public television series that starts tonight. We tend to toss Supreme Court justices into wide bins - liberals, conservatives, strict constructionists, whatever.
But Jeffrey Rosen teaches law at the George Washington University, writes about it in the New Republic, frequently talks about it here, and his book is about the personalities of the justices and the rivalries that raged within the court.
Welcome back to the program.
Mr. JEFFREY ROSEN (Author): Very good to be here.
SIEGEL: Jeffrey, the stories you're telling are not just about judicial philosophy. They're about the personal backgrounds, the formative experiences and outlook of the justices.
Mr. ROSEN: They are. And it was so surprising to me to learn how important personality and temperament has been over the history of the court.
I was trained as a law student to think that academic brilliance and philosophic consistency are the only thing that mattered, but when I looked at the history, I was struck by the fact that over and over again, the more pragmatic, collegial, likeable justices succeeded in transforming the court in their own image, while the ideologues and the philosophically consistent people often marginalized themselves.
SIEGEL: Your chapters typically take pairs of individuals and one of them pairs two justices who served together for some time on the court, John Marshall Harlan and Oliver Wendell Holmes. Harlan wins in this chapter, and I'd like you to talk about these two justices. First Oliver Wendell Holmes.
Mr. ROSEN: Oliver Wendell Holmes today is celebrated as a progressive hero because he upheld minimum wage laws and he wrote great free speech dissents at the end of his career, but in fact he was a much more complicated character.
He was centrally defined by his experience in the Civil War. He was wounded at Antietam. As a result of seeing that carnage, he came to abandon the abolitionist ideals that had led him to enlist. He had no faith in any ideals of any kind and he viewed democracy in the most violent military terms, as an opportunity for the strong to impose their will on the weak. And as a result, he almost never met a law he was willing to strike down.
He upheld some of the darkest laws ever passed by legislatures, including those eviscerating the civil rights of African Americans, and he said he would fight for the ability of the majority to impose its will even as he said, I loathe the thick fingered clowns we call the people.
I mean, to view him as a progressive is sort of an historical joke, and he might have taken a perverse satisfaction in that historical reversal.
SIEGEL: So there on the court is Oliver Wendell Holmes. Also on the court, John Marshall Harlan of Kentucky.
Mr. ROSEN: John Marshall Harlan has tended to be dismissed over the years as a muddled judge whose result-oriented political preferences just happen to have been vindicated by history. I think this does him a grave injustice.
He was the son of a slaveholder, one of the few Southerners on the court at the time, but he alone among the justices of his era recognized the central achievement of the reconstruction Republicans. He defended African American civil rights and African American voting rights. And it's just remarkable. You think of the great Supreme Court decisions in the 1960s, almost all of them vindicated Harlan's vision.
Thurgood Marshall used to read Harlan's dissent in Plessy v. Ferguson aloud for inspiration before he argued Brown v. Board of Education.
SIEGEL: Now obviously, Supreme Court justices like all political figures, or for that matter writers, go in and out of fashion and their ideas look better in different eras than in others. But how do you account for the fact that Oliver Wendell Holmes survived his tenure on the court, emerged from it as a giant of American jurisprudence and John Marshall Harlan as a role player?
Mr. ROSEN: I think a lot had to do with good PR. Holmes was very concerned about his image. He had a group of acolytes at the New Republic magazine, for which I now write, that would just write fawning editorials saying how great he was. He had a radio broadcast when he was 90 and the whole nation celebrated him. He spent an awful lot of time promoting himself.
As opposed to Harlan. Holmes dismissed him as the last of the great tobacco-spittin' judges. He was less concerned about his public image. And at the time that he was writing, his views were out of fashion. But Harlan was vindicated on all of the issues that Holmes was wrong.
SIEGEL: How did they get along with each other in the court?
Mr. ROSEN: Oh, they didn't like each other much at all, but Harlan did charm Holmes by leaving some violets on his desk on his 70th birthday and Holmes sort of grudgingly said peace be unto his ashes when he died.
SIEGEL: One last thing one can come away with from reading your accounts of Supreme Court justices you write about is that at confirmation hearings we shouldn't be so interested in questions about what did you think in that particular case when you ruled on the appellate court? As rather, did you feel left out in high school? Or what were your parents' values? What kind of college experience did you have?
Mr. ROSEN: You know, it's entirely right. It sounds maybe obvious. We know in small groups, personality and character matters a lot, but instead of always focusing on the last ideological battle in confirmation hearings, the way people interact is important.
SIEGEL: Jeffrey Rosen, thank you very much for talking with us once again.
Mr. ROSEN: Thank you so much.
SIEGEL: Jeffrey Rosen's book is "The Supreme Court: The Personalities and Rivalries the Defined America." It is a companion to the PBS series "The Supreme Court." It starts this evening.