JUSTICE ROBERTS: THE RIGHT MAN FOR THE JOB

Silence in the Court! Why are liberals urging that the Supreme Court do next to nothing? (Dahlia Lithwick, 24 July 2006, Slate)

It has become something of a vogue among liberal legal academics to draw an intellectual Maginot line between themselves and the landmark Supreme Court decisions of the 1960s and '70s. There is a deep sense of something—is it shame?—informing their views of those reckless Warren Court do-gooders and their well-meaning, slobbering efforts to protect women, minorities, and criminal defendants...

There is no sharper critic of the Supreme Court than the New Republic's Jeffrey Rosen, and there is no finer ambassador between the planet of legal academia and that of the popular media. That's why Rosen's newest offering, The Most Democratic Branch, is so radical. Following in the wake of Radicals in Robes, a call to judicial "minimalism" by University of Chicago Law School's brilliant Cass Sunstein, it gives both a body and a voice to all this progressive uneasiness. First, Rosen channels some of the most agonized liberal legal scholarship (Roe v. Wade was both badly decided and terrible for progressives; Brown v. Board of Education wasn't really all that central to the project of desegregation). Then he ties it all up with this neat prescriptive bow: Supreme Court justices, in order to do justice, should do almost nothing at all...

Rosen rejects the "romantic myth" of "antidemocratic courts protecting vulnerable minorities against tyrannical majorities." He contends that "the least effective decisions have been those in which courts unilaterally try to strike down laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people." And then he urges that if the courts want to maintain "democratic legitimacy" they must become safe, cautious; forever lagging one step behind Congress and the public-opinion polls...

MORE (via Eugene Volokh):

ANTI-HERO (Richard A. Posner, 24 February 2003, The New Republic)

I met justice William Douglas, the longest-serving member of the Supreme Court, when I was clerking for Justice William Brennan. Douglas struck me as cold and brusque but charismatic--the most charismatic judge (well, the only charismatic judge) on the Court. Little did I know that this elderly gentleman (he was sixty-four when I was a law clerk) was having sex with his soon-to-be third wife in his Supreme Court office, that he was being stalked by his justifiably suspicious soon-to-be ex-wife, and that on one occasion he had to hide the wife-to-be in his closet in order to prevent the current wife from discovering her. This is just one of the gamy bits in Bruce Allen Murphy's riveting biography of one of the most unwholesome figures in modern American political history, a field with many contenders. Murphy explains that he had expected the biography to take six years to complete but that it actually took almost fifteen. For Douglas turned out to be a liar to rival Baron Munchausen, and a great deal o0f patient digging was required to reconstruct his true life story. One of his typical lies, not only repeated in a judicial opinion but inscribed on his tombstone in Arlington National Cemetery, was that he had been a soldier in World War I. Douglas was never in the Armed Forces. The lie metastasized: a book about Arlington National Cemetery, published in 1986, reports: "Refusing to allow his polio to keep him from fighting for his nation during World War I, Douglas enlisted in the United States Army and fought in Europe." He never had polio, either...

From my account, Murphy's book may seem a hatchet job, with its mountain of often prurient detail about Douglas's personal life and character. Not so. Murphy displays no animus toward Douglas. He does not try to extenuate Douglas's failings as a human being, or to excuse them, or even to explain them, but he greatly admires Douglas's civil liberties decisions, and (without his actually saying so) this admiration leads him to forgive Douglas's flaws of character. The only time his realism regarding Douglas's character falters is when he is discussing Felix Frankfurter. His portrayal of Frankfurter is relentlessly and excessively critical; he sees Frankfurter exclusively through Douglas's hostile eyes...

Murphy is right to separate the personal from the judicial. One can be a bad person and a good judge, just as one can be a good person and a bad judge. With biography and reportage becoming ever more candid and penetrating, we now know that a high percentage of successful and creative people are psychologically warped and morally challenged; and anyway, as Machiavelli recognized long ago, personal morality and political morality are not the same thing. Douglas was not a good judge (I will come back to this point), but this was not because he was a woman-chaser, a heavy drinker, a liar, and so on. It was because he did not like the job.

Justice Douglas never met a decision he didn't want to make.

Posted by Pepys at July 31, 2006 6:19 PM