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Justice FeverThe baloney in two new books about the Supreme Court.

By Edward LazarusPosted Monday, Feb. 5, 2007, at 1:49 PM ET

(Continued from page 1)

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The Supreme Court: The Personalities and Rivalries That Defined America by Jeffrey Rosen 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 19^th-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.