Wild Bill: The Legend and Life of William O. Douglas - Bruce Allen Murphy

Justice Douglas is my favorite Supreme Court justice, ever.  Justice Stevens is #2, and Justice Brandeis might be #3.  (Brennan, Marshall, and Black might fill out a few other top slots.) That all 3 ran on the "same line" from 1916 - 2010 is noteworthy, and whatever reservations Douglas may have had about his likely successor, one hopes that Justice Stevens "made good" in the eyes of history (I believe that he has).

Wild Bill is a long book--511 pages to be exact.  It was published in 2003 and took 15 years to research and write.  Mr. Murphy did a fine job with his research and his prose, but one tends to wonder about editing.  While Wild Bill will certainly make the "best books" list on Flying Houses, I fear that it did not capture a wide audience.  Murphy states that he had a 2,700 page manuscript at one point, so boiling this down to 1/5 of that length must have involved some serious editorial wrangling.  He had good help:

"My gratitude is extended to agent Robert Gottlieb, then at William Morris, for arranging the original book contract and for encouraging me to stick with the plan of doing a one-volume biography." (515)

Gottlieb is a legend in his own right, but it is quite apparent to me that few people in 2003 were still interested in reading multi-volume biographies.  However I will not use this review as a sword against the modern world of literary agents.  This is a book that deserved to be published (of course) and deserves to be called one of the greatest biographies in American history--primarily because its subject is one of the greatest heroes in American history, and the treatment of that subject is well considered.

For those that are unaware of Justice Douglas (or who did not read my review of his excellent work Points of Rebellion) there are a number of "sound bites" that people in law school tend to know:

(1) He was married four times.

(2) He was an impassioned environmentalist.

(3) He holds the record for the longest term of service on the Court.

(4) He was fucking crazy.

Of course I am only kidding about the last one.  If he was crazy at any point, it was near the end of his life, and I intend "crazy" in its most endearing form: good crazy; not bad crazy.

His life story is not easily told in a review of a book, but I would like to comment on one thing first:

Whitman College.

Now, few people may know this, but Whitman College was on my "shortlist" of undergraduate institutions to attend back in 2001.  It did not win out, but I am sure that had I gone there, I would have been aware of Justice Douglas much earlier in my life, and would have modeled the years past accordingly.  Therefore, I blame the admissions outreach office of Whitman College for its failure to highlight this esteemed alumnus's humble roots.  Perhaps I was not interested in law when I was 18, but I am sure that, had I gone to Whitman College, I would have gone to law school immediately, would probably have graduated at one of the most terrible times in history, and might not be sitting in the Napping Room of the Brooklyn Law School library, typing out this post.  

I suppose the best place to begin is with his time in law school (at Columbia):

"As his classmates got to know Douglas, they became aware that he was different from them.  'The thing that really set him apart from the rest of us,' remembered classmate Herman Benjamin. 'was not his brilliance--we were all pretty smart--and it was not his poverty--we were all pretty poor...No, what set him apart from the rest of us was his age.  He was a full two years older than the rest of us.'  Indeed, in an entering class of 264 people, nearly all twenty-one or twenty-two years old, Douglas was one of only two who were about to turn twenty-four.  Embarrassed by this difference, Douglas made up a story to explain it...." (44)

That story involves distinguished service in World War I, which later serves to get him a place at Arlington National Cemetery.  This is apocryphal, like some other stories Douglas liked to tell, but true enough to make people shut up.  

Douglas did well in law school, but not as well as most modern Supreme Court justices:

"This combination of intellectual challenges took its toll on Bill Douglas's scholarly performance.  At the end of the first year's exams, when the top several students were acknowledged by being named James Kent Scholars, Douglas was not among them.  Douglas's friends believed that his lack of academic success was due to causes beyond any intellectual weakness on his part. 'Douglas was not well-off in law school,' explained Herman Benjamin.  'He was the only one of our class who absolutely had to work...The rest of us worked to get spare money, but Douglas had to work to live.  I think it's quite possible that his financial straits may have affected his scholarship." (45)

Later, he improved in his second year, due in no small part to the efforts of his first wife, Mildred, who taught school in New Jersey and supported him for his last two years in school.  However, it was not without its disappointments.  He didn't make the Columbia Law Review (at first) and he "lost a clerkship."  Furthermore:

"The real truth, they all knew, was that the Yakima Apple Knocker had been nowhere close to graduating second in his class or, for that matter, to the law clerkship.  Herman Benjamin, a Law Review compatriot who is acknowledged as the class's historian, remembered, 'Not only can I assure you that Al McCormack was the universal and obvious choice for the clerkship [with Harlan Fiske Stone], but...if Douglas was competing with McCormack, it was for no better than fifth in the class....Douglas's memory on this matter is never very precise.  I have concluded that he is always a little general about the facts.'" (474)

This is not a far cry from my laments about Justice Stevens being the only recent Justice not to graduate from Harvard or Yale, but that being okay because he graduated #1 in his class at Northwestern.  Once again, I lament that only the most intellectually superior will ever have a chance to sit on the Supreme Court.  It is particularly ironic, in this day and age of anti-intellectualism, that the President has never felt compelled to place a "more ordinary" mind on the Court.  I digress.

Justice Douglas was raised in large part by his mother, with whom he had a stormy relationship.  His father was a Reverend, and sometimes Murphy invokes that image when writing of Douglas as a "preacher from the pulpit of the Court."  He was very ill as a boy, but recovered, and eventually was a very powerful hiker.  At one point he challenges a bunch of people to hike a 161 mile trail:

"The Washington Post endorsed a plan to build the C&O Parkway from Cumberland, Maryland, to the nation's capital along an old 185-mile, 230-foot-wide towpath beside the historic Chesapeake and Ohio Canal....Douglas sent a letter to the editor protesting that this highway would destroy the canal that his predecessor Justice Louis D. Brandeis used to travel by canoe to Cumberland.  Even now, he said, 'it is a refuge, a place of retreat, a long stretch of quiet and peace at the Capitol's [sic] back door--a wilderness area where man can be alone with his thoughts, a sanctuary where he can commune with God and with nature, a place not yet marred by the roar of wheels and the sound of horns.'" (330)

Of course he makes good on his challenge, and the editors at the Post decide that they were wrong, that the trail is indeed beautiful, and that they no longer endorsed the project.  

Oh, also he did this (in his mid-50's) after a horse fell on top of him about five years earlier, crushing 23 out of 24 of his ribs.  

There is also plenty of gossip regarding his womanizing and drinking.  No less than five wives/long-term girlfriends (while married to someone else) were sprinkled throughout his life.  And there were more:

"'We never knew what Dad did in Goose Prairie,' recalled his daughter Millie.  'He would just be gone for long periods of time [during the summer].'  And he took advantage of his privacy, especially in his relationships with women.  'Bill was the biggest whorer around,' recalled Isabelle Lynn, an early guest and later Kershaw's partner at the Double K, 'but we still loved him, though.'  Kay Kershaw had built a one-room, tine-roofed outbuilding, complete with a fireplace and a half bath, where a guest could live in total seclusion even from the main ranch.  This very quickly became Douglas's home away from home.  'Bill came here when he had a girlfriend, or when he didn't have a girlfriend and was writing one of his books,' recalled Kershaw, adding with a knowing smile, 'and he was here a lot.'  His female guests were arranged by an old friend.  'Douglas would just see what he liked in Yakima, and Elon Gilbert would ask the girl up,' explained Kershaw.  'I was always seeing girls come by saying, "Is Bill around?"   There were all types and all ages, and they came all the time...Poor Bill,' Kershaw concluded, 'he was no family man.  His personal life was all fouled up.'" (270-271)

As for drinking, Douglas could do it with the best of them.  But his paranoia, while oftentimes reasonable in certain respects (this was the J. Edgar Hoover era after all), sometimes took a toll on his staff:

"After a day of hard work with Douglas, everyone would wait until he departed before leaving themselves--sometimes it was at 6:00 and sometimes as late as 8:00 P.M.  When Douglas found out about this practice, he began leaving and then returning ten minutes later to see if the work was still under way.  If he saw no one, Douglas asked his secretary the next day, 'Where was everyone last night?  I came back, and no one was in the office.'
On days when they did not all scramble for the door after he had departed, the bottle of vodka in the bottom of Fay Aull's desk might be brought out to celebrate the survival of another day in the Justice's service.  One time, the Justice walked in a few minutes later to find a party well under way, said nothing, and went into his office.  The next morning, he buzzed for his secretaries and told them, 'Somebody is stealing my booze.'  Knowing that no one would dare touch the ample supply of liquor that he kept in his office, this was merely intended to put them on notice that what he saw should not happen again.  All it did, though, was convince them all to wait an extra five minutes before beginning the end-of-day festivities." (407-408)

There is also a great account of a pseudo-nervous breakdown he suffers while on a hiking trip:

"Everyone looked forward to dinner and the conversation that followed around the campfire, where Douglas would often sit cross-legged on the wooden supply boxes or on a log by the fire and tell his stories.  Looking past the roaring embers, with sparks filling the air around him, he would mesmerize the travelers with his tales of how he had 'cleaned up the Street,' how he had told Felix [Frankfurter] to 'go to hell,' or how close he had come to being vice president and then president instead of that haberdasher from Missouri.
But as the pack train moved along on this August day, it soon became clear to everyone that something was dreadfully wrong with their famous friend...'I'm gonna get good and drunk tonight,' he hissed at Cragg Gilbert.  Normally, that would not be an unusual statement, except this time Gilbert could see that Douglas would be drinking out of anger rather than to amuse himself.
As soon as the procession reached Blankenship Meadow, nearly everyone sprang into action--pitching their tents, getting their water, scouring the woods for kindling, arranging the food and cooking utensils for dinner, and building a campfire.  But Bill Douglas did none of that.  Instead, reaching into one of his saddlebags, he took out a liquor bottle and just sat down, drinking as fast as his body would allow.  With each swig, a deepening anger set in.  When the bottle was finished, he simply tossed it aside, returned to the saddlebag, and picked out another one.....Douglas started mumbling, but it wasn't to anyone around him, it was only to himself and in a language only he seemed to understand....'They bought it! They bought the goddamned nomination!'...Douglas's mumbling eventually ceased, and he began yelling at no one in particular...."(348-349)

So on the personal side of things, Murphy does a good job of summarizing Douglas's life.  Murphy's writing on the law could be compared to Jeffrey Toobin's (in The Oath or The Nine), though it lacks the same kind of immediacy that present-day reportage on the Court entails.  It seems clear that Murphy is "liberal," but he is more nuanced in his treatment of "conservative" justices.  In any case, this book has some overlap with The Brethren, but an unrelenting attack on Justice Burger is not undertaken. And it is to Murphy's credit that he must have known the existing literature on his subject, and that he didn't want to needlessly repeat some episodes already noted in other books.  Thus, there is some discussion of Douglas's treatment of his law clerks, but none of the stories from The Brethren are repeated.  Generally, Murphy is great at summarizing the Court's decisions in concise and well-chosen language.  See for example, his two sentence summary of Roe v. Wade:

"In Roe, the Court had overturned Texas's ban on abortions by creating a trimester system regulating the ability to secure abortions based on the differing interests of the three parties involved in the dispute: the mother, the unborn fetus, and the state.  While the mother had an unlimited right to get an abortion in the first three months of a pregnancy, and the state had the right to prevent an abortion in the last three months to protect the fetus, in the middle trimester a state could only regulate the decision to get an abortion based on the need to protect the health and life of the mother." (458)

So, again, this book will be useful for students studying Constitutional Law.  Here is a brief list of cases that the book touches upon, and may be useful in supplementing one's studies:

Adderley v. Florida (1966)
Dennis v. United States (1951)
Feiner v. New York (1950)
Griswold v. Connecticut (1965)
Korematsu v. United States (1944)
Minersville School Dist. v. Gobitis (1940)
New York Times Co. v. United States (1971)
Papachristou v. City of Jacksonville (1972)
Poe v. Ullman (1961)
Rosenberg v. United States (1953)
Roth v. United States (1957)
Sierra Club v. Morton (1972)
Terminiello v. Chicago (1949)
United States v. Nixon (1974)
United Stats v. O'Brien (1968)

Sadly, the book does not pass the 420 test--but it comes pretty close:

"By this time [1970] he was especially suspicious of the FBI.  Upon noticing men in dark suits loitering around his summer house, Douglas began to investigate their mission.  'I wrote you last fall or winter that federal agents were in Yakima and Goose Prairie looking me over at Goose Prairie.  I thought they were merely counting fence posts,'  Douglas wrote his friends at the Double K ranch in the spring of 1970.  'But I learned in New York City yesterday that they were planting marijuana with the prospect of a nice big TV-covered raid in July or August.  I forgot to tell you that this gang in power is not in search of truth.  They are "search and destroy" people...It would be ironic if they planted it over in Ira [Ford]'s yard, not mine!'  But no such marijuana raid was ever staged." (444-445)

Douglas's career looks like this: (1) humble beginnings in Yakima, WA; (2) Whitman College years; (3) One year spent teaching high school; (4) Columbia Law School years; (5) Time spent working at Cravath, the work making him sick, weighing his other options; (6) Time spent teaching at Columbia and Yale Law Schools; (7) Offers dangled from the University of Chicago, playing law schools against one another to have him on their faculty; (8) elected Chairman of the SEC and prosecutes Richard Whitney; (9) Appointed to the Supreme Court in 1939; (10) Potential Vice-Presidential Candidate for Franklin Delano Roosevelt and Harry S. Truman; (11) Potential presidential candidate--until he gets divorced; (12) Several wives, stultifying alimony responsibilities, and general disarray of personal financial affairs; (13) Discovery that he could be paid handsomely for writing books on the various travels he took; (14) Last surviving New Dealer on the Court, facing five Nixon appointees; (15) Greatly diminished old man who refuses to accept that he can no longer handle the work on the Court after suffering a stroke.

While the book does not discuss the Bakke case (that was decided in 1977, two years after Douglas retired), it does mention a similar case that came before it, and Douglas's opinions on the matter would turn out to be quite prophetic:

"The 1973-1974 term offered Douglas the opportunity to deal with the growing number of programs offering preference based on race to law-school applicants.  Marco DeFunis Jr., a Caucasian, was suing the University of Washington Law School for denying him admission while admitting under its 'affirmative action' program minority applicants with lesser qualifications...'I don't know about these tests,' said Douglas, referring to the Law School Admissions Test (LSAT), which is used to test the aptitude of prospective law-school applicants.  Three days later, after the Court decided not to hear the case because DeFunis was about to graduate, Douglas decided to write a dissent to the denial.  The reason, he explained to his clerk, was simple: 'I might not be around next time this issue comes up.'
After considerable back and forth with his clerk in writing the opinion, Douglas's arguments against affirmative-action programs were instructive.  First, he vigorously attacked the LSAT, even without evidence to prove his point, as being so racially biased that on occasion there must be reverse bias by a law school to correct it.  The only requirement for him was that 'the consideration of each application [be done] in a racially neutral way.  Since [the] LSAT reflects questions touching on cultural backgrounds, the Admissions Committee acted properly in my view in setting minority applications apart for separate processing...The melting pot is not designed to homogenize people, making them uniform in consistency.  The melting pot as I understand it is a figure of speech that depicts the wide diversities tolerated by the First Amendment under one flag.'.......
Douglas made very clear, however, that he had no tolerance for a quota system, by which a certain number of the seats for the incoming class were reserved for certain minorities: 'The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar dangers, for one must immediately determine which groups are to receive favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group.'  Only a policy of admissions based on racial neutrality was the answer: 'The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish.  It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone...A segregated admissions process creates suggestions of stigma and caste no less than a segregated classroom, and in the end it may produce that result despite its contrary intentions.'  For Douglas, who had once been denied access to the undergraduate portion of this very school because of his family's finances, the programs of affirmative action, which diminished the use of merit as an admissions criterion, were not permissible: 'All races can compete fairly at all professional levels.  So far as race is concerned, any state-sponsored preference to one race over another in that competition is in my view "invidious" and violative of the Equal Protection Clause.'  He was prepared to send this case back to the lower court to determine both the impact of the LSAT and this application process on various groups." (467-468)

These concerns would arise 40 years later in the Grutter and Gratz (University of Michigan) cases, and are still being decided as I write this today (University of Texas).

The lesson is that anyone interested in a progressive future for America should read this book and try to follow Douglas's lead.  To be sure, Murphy does not hold up Douglas as a god, and details his personal indiscretions as greatly as his contributions to American society at large.  So maybe, it is not okay on a moral level for a Supreme Court justice to use his or her position in order to constantly get laid.  But the point is Douglas lived by what he preached.  He believed in the freedom of the individual to express themselves in whatever ways they sought fit, and he certainly expressed himself without worrying what others would think of him.

Murphy sums up Douglas's importance in the history of 20th century America nicely near the end:

"He celebrated his 74th birthday, on October 16, 1972, by objecting to twenty-six denials of writs of certiorari, offering full dissents in ten of them.  Douglas was objecting to the Court's unwillingness to hear all manner of cases: antimonopoly laws, airport zoning statutes, state support for parochial-school education, employment liability, destruction of war materials, the constitutionality of chain gangs, and the rights of the poor in filing for criminal-trial transcripts.  By this time, Douglas was so anxious to show his displeasure with his colleagues that when four members of the Court voted to accept a case, he objected to that as well.  But with four Nixon appointees now dominating the Burger Court, it was all to no avail." (458)

His retirement announcement is described in rather moving terms as well:

"After they heard the news, one by one each member of the Court walked over to shake their senior colleague's hand and wish him well.  Then, as Douglas was quietly wheeled to the door, he raised his good arm, and, with some difficulty, expressed to his colleagues what had become his mantra in his waning years: 'Keep the Faith!'  With Douglas's record-making legacy of 1,164 full opinions, including 486 full dissents (not to mention thirty-two books and hundreds upon hundreds of public speeches), now complete, for the first time in more than thirty-six years the guardianship of the Constitution was in others' hands." (495)

At times this book may drag (I found it a bit slow through the several chapters dealing with Douglas's Presidential ambitions) but at other times it reads like an adventure story ("Trouble in the Woods" may be the strongest chapter in the book, as Murphy does an excellent job of recreating the horror of Douglas's horseback-riding accident).  Generally, the book is about as "quick" a read as you can expect for a 500+ page volume.  It is excellent reading for law students and those interested in the law, but I fear most people will forget about Justice Douglas.  That would be unfortunate because his influence remains relevant even in these technologically-advanced times.  Douglas could see where the future of America was heading, and more often than not, his opinions articulated that view.  He was an extraordinary human being, and this book is likely the most authoritative text on his life.

Of course this book won't be for everyone--but as I've mentioned on Flying Houses previously, parents should stop telling their children to "one day be President" and instead urge them to "one day be a justice."  Douglas may have wanted to be President (due in no small part to his mother's prediction that it was his destiny), but the lasting impact of his work as a justice easily outdoes that of the majority of 20th century American Presidents.  Future generations of law students will know his name, but more of the general American population should become acquainted with him.  This book should provide that requisite level of intimacy for all.      

The Oath - Jeffrey Toobin

The Nine: The Sequel

by Jack Knorps

The Nine  was a difficult book to review because I deigned to describe each Justice.  While it was a terrific book, and more even-handed than The Brethren, I criticized the amount of material the author included on Supreme Court appointments and Bush v. Gore.  Toobin has, in fact, written an entire other book on the subject (Too Close to Call), and I do not think I will be reading that.  However, I have heard good things about The Run of His Life: The People v. O.J. Simpson and would consider reading that.  Toobin is a talented writer, and at times the words flow off the page.  He is a "quality author."  

That being said, The Oath is a better book than The Nine though there is almost nothing to distinguish the two from one another.  True, The Nine was about the period between 1993 and 2005--the longest period in which the same nine justices served together, and there is more material because the "length of the story" is longer.  The Oath is about the period between 2005 and 2012 (though primarily '08-'12) and clocks in at a perfect length of 300 pages.

A friend recently asked me what the perfect length for a book was.  It is a hard question and depends on the book but I have to say now that it is between 250 and 300 pages.

And I have to say that, though my review of The Nine (published January 1, 2012) was probably not read by Toobin himself, it is almost as if Toobin took my criticisms to heart and wrote a better book, substantially similar though it may be.

It is a subject that is hard to write about briefly.  The Brethren was very long, too.  So much has happened, but when we last left off, I had reviewed Five Chiefs and was bemoaning the Conservative Court--that is, the moment Justice Thomas replaced Justice Marshall (not the moment Justice Souter replaced Justice Brennan): the Court seemed like it was "fixed."

However, The Oath makes the point more than once that Justice Stevens, Justice O'Connor, and Justice Souter were all Republicans, and slowly but surely became part of the "liberal wing" of the Court.  I don't think this point can be emphasized enough.  If you look at the Court, you are looking at a group of extremely distinguished individuals, some of the most intelligent professionals in America.  That three of them abandoned their former party highlights my distaste for the conservative movement.  Toobin, I would imagine, shares this view.

When I reviewed The Nine I provided snippets about each Justice, and it was an extremely long review.  I will do my best to stick to the highlights in this review.  

The book is divided into five parts.  Part One focuses on Obama, his election, and the Court as it stood when he took office.  Part Two focuses on Second Amendment concerns and introduces Justice Sotomayor.  Part Three is basically about Citizens United.  Part Four introduces Justice Kagan.  Part Five is basically about the Affordable Care Act cases.  Oh and Part One also discusses Stern v. Marshall (briefly).  

Unlike Bush v. Gore, Citizens United and the ACA cases (which I wrote an extensive article and roadmap on) are both extremely interesting cases.  So obviously I like those parts.  Part One is good because it tells us some thing about Barack Obama that, shockingly, we probably did not know:

he went to law school when he was my age:

"His life as a public figure began in 1990, when he was twenty-eight and won election as president of the Harvard Law Review, the first African American to hold that position.  Obama practiced law for a dozen years and taught at the University of Chicago Law School for nearly as long.  But by the time he ran for president, Obama was above all a politician, and a cautious one.  Obama admired the heroes of the civil rights movement, including the lawyers, but he did not model his career on theirs.  Obama did not believe the courts were the principal vehicle for social and political change.  Elections, rather than lawsuits, were his battlefield of choice, and by 2008 he knew that the way to win the presidency was, in part, to embrace the individual rights theory of the Second Amendment." (22)

The Oath is quite timely but Toobin might revise that last sentence in light of the events that have transpired over the past four months.  We are living in an increasingly insane world where people are isolated and would rather go out in a blaze of glory and kill dozens of innocent people than attempt to grab that increasingly fictitious concept known as the "American Dream."  Chief Justice Roberts and Barack Obama, one might say, are both "living the dream"--but it would be wrong to say they are totally happy and their lives are perfect:

"Near the end of his memoir Dreams from My Father, which he published when he was thirty-three, Obama reflected on his education at Harvard Law School.  His tone was ambivalent.  'The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power--and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.'  Then, in a gesture that was common in the book, and in Obama's character, he gave the other side of the story: 'But that is not all the law is,' he continued.  'The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.'" (22-23)

The reason why I have no respect for republicans is because they lambast Obama as if he was the worst president ever and they have absolutely no idea what he has come up against.  Basically, whoever became president in 2008 needed to be FDR in order not to look like a douchebag.  Obama is not FDR.  People generally consider Lincoln the greatest President.  FDR is often near the top of the list, too.  For me, Obama is number three.  Some people put Kennedy up in the top five, but I'm not sure I could (shockingly I might even put Nixon above Kennedy).  I don't want to get into word games but I think Chief Justice Warren was probably the greatest Chief Justice (and Scott Brown took Ted Kennedy's seat in Massachusetts) and in three years, in my fantasy world, a different Warren could potentially be the greatest President, too.  

You can't blame Obama for putting Sotomayor and Kagan on the Court.  Sotomayor has recently become popular for putting out a book of her own--and she claims that Obama's book greatly inspired her.  It is quite shocking, though, to think of Chief Justice Roberts.  I made this point in The Brethren review, but I'll make it again: it is such a better job than President!  He could be Chief Justice for like, twenty-five, maybe thirty years.  Clearly, the Justices are the ones that see the change in the country more clearly than anyone else. 

I basically hate Chief Justice Roberts because he is so perfect:

"There was never a student like John Roberts at the La Lumiere School in LaPorte, Indiana, a quiet town near Lake Michigan, on the outer edges of the gravitational pull of Chicago.  It was a Catholic school, but it was independent of any order or diocese; the founders, all laymen, built the institution around an ideal of academic excellence.

"Roberts was not just the valedictorian of the class of 1973.  He served as captain of the football team, a varsity wrestler, member of both the student council and the drama club.  (He played Peppermint Patty in You're a Good Man, Charlie Brown; the school was all boys in Roberts's day.) He continued taking Latin, as a tutorial, after the school dropped the language as a requirement...." (8)

Toobin goes on to explain Roberts's excellent memorization skills and how ironic it was then that he messed up on The Oath that he gave to Obama at his inauguration.  But there is something sinister about Roberts's perfection: he is too much like Kennedy (except not quite as well-to-do from birth) and his conservatism is blind to the problems of society's have-nots.  However, he did get one case right--and it was an important one.

Toobin covers the drama around the Affordable Care Act and the various legal challenges to it in an economical and entertaining fashion.  The same goes for Citizens United.  Thus, Part Three and Part Five are excellent reading for law students.  (Citizens United is only really studied, however, in classes on First Amendment Law and Campaign Finance law--it doesn't affect Americans as individuals as broadly as the ACA--but it has enormous philosophical implications: read thought control).  What is most upsetting about Citizens United is that we never got to read Souter's dissent:

"The new majority opinion--which transformed Citizens United into a vehicle for rewriting decades of constitutional law--shocked the liberals.  Stevens assigned the main dissent to Souter, who was in the last weeks of his tenure on the Court. (He was actually working on the opinion when he announced his departure.) The Kennedy opinion reflected everything Souter had come to loathe about the Roberts Court--its disrespect for precedent, its grasping conservatism, its aggressive pursuit of political objectives.  Worse yet, Robert's approach to Citizens United contradicted a position he had taken earlier in the term.  At the argument of a death penalty case known as Cone v. Bell, Roberts had berated at length, the defendant's lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the briefs.  Now Roberts--the chief justice--was doing precisely the same thing to upset decades of settled expectations.  

"Souter wrote a dissent that aired some of the Court's dirty laundry.  By definition, dissents challenge the legal conclusions of the majority, but Souter accused Kennedy and Roberts of violating the Court's own procedures to engineer the result Roberts coveted.  The dissent, had it been published, would have been an extraordinary, bridge-burning farewell to the Court by Souter." (168)

But "The Ninety-Page Swan Song of John Paul Stevens" is a pretty good thing to read, too. I have written at length on Justice Stevens and how he is my second-favorite Supreme Court justice so I will not add much, except that next time I go to Chicago I will take a picture:

"....Still, the family never recovered its former wealth, and it lost control of the hotel. (It is now known as the Chicago Hilton and Towers; the 'S' is still there.)" (187)

This book is not quite as gossipy as The Brethren but it is more gossipy than The Nine.  In The Nine Toobin makes some pretty incredible statements about Justice Thomas, but in The Oath he makes Thomas out to be some kind of enormous evil genius/fool.  I do not even want to repeat what Toobin wrote about Thomas (this is why I think writers are the only more hated group than lawyers: if I were Thomas I would go kick Toobin's ass for the things he suggests and reveals).  But now I know that "Lady Kaga" is not, in fact, gay, so I make this plea:

***

Dear Justice Kagan,

I know that you probably get lots of date offers but I want to ask you out.  I am a 29-year-old law student and that means there is only about 23 years separating us.  That is less than the difference between Justice Douglas and some of his wives.  I promise you that, if you give me a chance, I will be a good and loyal partner to you, and help you achieve whatever it is you hope to do in this life.  I will never "leak" anything.  I am a good cook and would make a great stay-at-home dad.  I also have a tremendous singing voice, and am a soon-to-be-acclaimed filmmaker.  

If you'd like, I would be your law clerk for a year if you wanted to test me out.  If that's too much trouble, I understand (my credentials are nowhere near as impressive as Sparkle's), but if you just want to grab dinner sometime and see if we'd get along, that could be really cool.  I'll take the Bolt Bus down to D.C. and meet you some Friday evening when you get off work.  I'd even be willing to pick up the tab!  Please respond via comment if you are so interested. (And yes I am being totally serious.)  

***

Kagan also apparently kicked a 20-year cigarette habit.  On that note, I am going out to have one....

Kagan was also a classmate and friend of Toobin's.  He can't recuse himself from writing this book, but it highlights his own achievements.  While I don't necessarily agree with some of his statements (for example, that Justice O'Connor is "the most influential woman in American history" (207)) The Oath is more often than not, erudite and sensitive to the political climate of our nation's capital:

"Stewart [not Potter-Ed.] was wrong.  Congress could not ban a book.  McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life.  The influence of books operates in a completely different way.  Individuals have to make an affirmative choice to acquire and read a book.  Congress would have no reason, and no justification, to ban a book under the First Amendment." (166)

It is an important book that everyone should read. (Many will not because reading about law is boring--and honestly, having studied the law for the past two-and-a-half years, sometimes I just don't want to read about all of those Commerce Clause cases over and over again...) It also taught me how to correctly use parenthetical sentences, so it may improve your writing also (though I would hardly call this review one of my finest moments).  

Basically, if you are pressed for time, read The Oath.  Then, if you want, you can read The Nine for the sake of nostalgia.  The only problem with this book is that it preempts its prequel.  But a lot of people still prefer the first Back to the Future to the second one.  I would imagine the debate between fans of those two movies is quite similar to the debate that fans of these two books would have: it largely depends on how accurate their vision of 2015 will be.  I, for one, hope that there is another Warren on the way to "reshape" American society, and not another Clinton. 

Five Chiefs: A Supreme Court Memoir - Justice John Paul Stevens

I have written at length on Justice Stevens before in my reviews of The Nine and The Brethren, and unfortunately this review will not offer many more exciting biographical tidbits--perhaps one or two.  This should be fairly predictable.  I have not read Justice Douglas's Points of Rebellion or any other "literature" by the Justices, but I have to believe they would not go out of their way to air any dirty laundry.  Of course, Bill Clinton's memoir simply has to include a segment on extramarital affairs, and any Justice's book has to include a portion on Clinton v. Jones and Bush v. Gore and there are plenty of opportunities for silly jokes--but most (if not all) Justices know better.

There are zero exclamation points in this book.  Many people may fear the exclamation point.  They worry that it will cheapen whatever they say, or that it will look like they make lame jokes.  They see "bad writing" that uses 1 exclamation point (or 2) per paragraph, and they believe that this writer has simply ripped off Kurt Vonnegut too badly and that they probably have nothing of substance to say.  Of course I am not anti-exclamation point at all, but I felt the need to comment on this.  Because Stevens (who is my second favorite Justice) references another legal heavyweight (who is my favorite judge, period) from Chicago, whose book I am reading as a follow-up to this (and is packed with exclamation points):

"In many respects I did not--and do not--agree with the approach of the Warren Court to antitrust issues.  As a young lawyer, I taught courses in antitrust law at Northwestern and at the University of Chicago.  The course at Chicago, called Competition and Monopoly,was traditionally co-taught by an economist and a lawyer.  The year that I substituted for Edward Levi, who later became the attorney general under Gerald Ford and provided much needed leadership in the Justice Department after the Watergate scandal, the economist was Aaron Director, a brilliant teacher whose disciples included Bob Bork and Dick Posner.  While I did not learn half as much  about economics as either of those outstanding rising scholars, I did--through my association with Aaron--pick up a few fundamentals." (95-96)

Bork was 12 years older than Posner, and, sadly, he passed away 8 days ago.  While I find it humorous that Stevens would refer to Bork as a "rising scholar"--and 85 years is not such a bad run--I am not sure how much humor was intended in this statement.  I do not know very much about Bork except that he figured heavily in both The Nine and The Brethren as a constant "potential appointee."  We will have plenty of time to talk about Posner later.

So, the bottom line is that, even though the book lacks exclamation points, and even though I find its structure a bit frustrating, Stevens's winsome character is on full display and further exemplifies why he is my second favorite Justice.  Though he does sometimes go off on tangents that seem a bit uselessly complex (generally reading the physical characteristics of the rooms in the Supreme Court) and perhaps he finds it funny that he is forcing the reader into his strange mathematical mind games, at least in this passage:

"When the marshal shouts, 'Oyez, oyez' (the traditional equivalent of 'hear ye, hear ye'; it is pronounced 'Oh yay,' not "Oh yez'), and requests all of the spectators in the courtroom to rise, the justices ascend the bench in groups of three: the chief justice and the two most senior justices are in the center; the fourth, sixth, and eighth most senior justices enter at the right end of the bench; the fifth, seventh, and ninth most senior justices enter at the left end.  Thus, using numbers to describe the lineup in the conference just prior to entering the courtroom, the sequence is 123-468-579.
The five-four split that impressed me on my first day was that of the five justices who were over six feet tall and the four--Justice Brennan, Stewart, Blackmun, and Stevens--who were all within an inch or two of five feet six.  As the most junior, I was at the end of the line, with the six-foot Lewis Powell (number 7) in front of me, and the even taller Bill Rehnquist (number 8) in front of him.  The only other justices visible to me were the broad-shouldered Thurgood Marshall (number 5), the all-pro running back Byron White (number 4), and our handsome leading man (number 1).  I won't say that I felt insignificant, but I did feel that I was beginning my tenure as a member of a small minority." (135-136)

Clearly, he could have used an exclamation point there, but it would not be appropriate.  This is dry humor, and while I previously thought that judges lacked a certain literary flair that made opinions boring to read, one cannot write opinions on the Supreme Court for more than 30 years and not become a good writer.  And there is often subtle humor found in even the most boring opinions, but one must be attentive to that dryness.

The next paragraph is, however, the one passage in the book that made me laugh out loud:

"During the argument, Lewis Powell carefully explained that when we adjourned I should be sure to push my chair back far enough to enable Thurgood and himself to walk past it before descending the steps from the bench.  At the end of the argument, attentive to that counsel, I gave my chair such a firm shove that I missed catapulting down those stairs by only a matter of inches.  I continue to thank the good Lord for saving me from what would have been a truly memorable opening argument." (136)

A note on structure: I always knew this book was called Five Chiefs and I knew enough about the Court that it didn't seem to line up with reality (if Stevens was writing about each of the Chiefs he served under).  There was Burger, there was Rehnquist, and there was Roberts--only 3.  Was Stevens implying that he was a "chief" in his own right?  (Not in the least--though he does include one chapter about his role as Senior Associate Justice and the brief period in 2005 when he served as interim Chief Justice).

Chief Justices Vinson and Warren are also included because Stevens "knew" them: Vinson, because Stevens served as a law clerk to Justice Rutledge during the 1947 term; Warren because Stevens's first and only time presenting an oral argument at the Supreme Court was before him.  As previously noted in The Brethren review, Earl Warren is universally beloved, and he can seemingly do no wrong (save the Court's antitrust jurisprudence, referenced above).  More interesting is Stevens's chapter on Warren Burger--which is probably the most intriguing part of the book (at least for those that have read The Brethren).

After reading Five Chiefs, I am apt to dismiss The Brethren as blow-hard escapist entertainment (i.e. look at all those silly Justices and that bumbling moron of a chief!) because the stories about Warren Burger are extremely demeaning.  I was willing to give Woodward & Armstrong the benefit of the doubt, and while I know that Stevens must have had certain reputational elements in mind when he published this book, I am much more persuaded by his view that Burger made more positive contributions to the Court than negative.  He does, indirectly, reference The Brethren:

"In my judgment Warren Burger's contributions to the law in the years after I joined the Court have not been fully appreciated, possibly because unfriendly critics have had so much to say about Burger's evolving views about the abortion issue.  Public interest in that issue increased dramatically in the years after 1973, when Roe v. Wade was decided.  As the seven-to-two vote in that case illustrates, the basic issue was not as controversial in 1973 as it became in later years." (142-143)

He does, however, verify that Burger had certain "lapses of memory" when he would assign a justice in a minority position to write the majority opinion, or change his own vote so he could write the majority.  Generally though, he has nothing but kind things to say about every Chief.  There are many more passages I could quote but I would like to get to my major criticism of the book: there is almost nothing about the other associate justices.

To be sure, Scalia probably gets most of the publicity in this book, and it is quite funny when Stevens mentions the dual Senate Confirmation Hearings of Rehnquist (to ascend to the position of Chief) and Scalia (to join the Court):

"Bill had served as an associate justice for fourteen years when President Reagan chose him, in 1986, to be the chief justice.  In the Senate, a substantial number of legislators opposed his confirmation because they regarded his opinions as reflecting insensitivity to civil rights issues.  That opposition overlooked the fact that the change in his status from an associate justice to chief justice would not give him any additional voting power.  Because of the senators' concentration on the qualifications of Rehnquist, they devoted relatively little attention to the far more important question of what kind of justice the new appointee, Antonin Scalia, would be.  He, of course, was exceptionally well qualified and would have been confirmed overwhelmingly even if he had been the center of attention.  Nonetheless, there is irony in the fact that the senators were far more interested in raising questions about Rehnquist than they were in questioning the new justice." (170)

Moreover, I was intrigued to see what Stevens thought of Justice Douglas--but there is very little material on him.  Of course, Justice Stevens replaced Justice Douglas, and it was noted in The Brethren that Douglas kept wanting to come to work.  Stevens does not have anything particularly mean to say about Douglas, though he doesn't have anything particularly nice to say, either.  There is one extremely chilling incident that I had never read about before:

"Chief Justice Stone's dissent in Girouard v. United States (1946) also arose out of an individual's conscientious objection to a governmental requirement [the previous paragraph discussed the Gobitis case, which involved mandatory flag salutes at school].  Although willing to take an oath of allegiance to the United States in order to become a citizen, Girouard was unable to swear that he would take up arms in support of the country.  The question was whether he could nevertheless qualify for citizenship.  In earlier cases presenting the same issue, Stone had joined dissents from decisions holding that the applicant could not qualify for citizenship without taking the required oath.  In the Girouard case, the majority decided to overrule those cases and adopt the views that Stone had previously endorsed.  Stone, however, thought that the legislative history of proposed amendments to the statute that Congress had refused to enact demonstrated that Congress had rejected his interpretation.  Although he still thought the law unwise, he believed he had a duty to accept what he understood to be the interpretation that Congress intended.
Stone planned to explains his views in an oral announcement of his dissent in open court, but while Justice Douglas was reading the majority opinion, Stone suffered his fatal cerebral hemorrhage." (35-36)

Stevens does, however, become very angry about certain opinions that were written.  He certainly makes clear that he did not appreciate a lot of Rehnquist's decisions, and he makes a stinging reference to Kennedy's opinion in Citizens United.  But he does not spare Justice Douglas.

At this point the review should shift into the "law school usefulness" test--and I think this book is probably more helpful than either The Nine or The Brethren on that score.  Because Stevens does not just supply background information on how certain cases were decided, but he whittles down incredible amounts of legalese and scholarly debate to give a law student a crisp explanation of an issue.  Most notable is his account Marbury v. Madison which still confuses me (I am not even sure what a "justice of the peace" is supposed to be)--and 1Ls taking Constitutional Law will benefit from the three or four paragraphs he takes to explain the significance of that case.

Also noteworthy are the extremely confusing cases of Myers v. United States (1926), Humphrey's Executor v. United States (1935) and Morrison v. Olson (1988).  Stevens describes these cases briefly and lucidly, and I wish I had this book at the time I was taking the course (the book was published in 2011, but I do not think it came out before April or May--and even if it did, I doubt that I would have sought it out).  I would have done much better than a B.

But to return to Douglas--Stevens clearly has antipathy for the majority opinion in Lochner, but he has a different view of Griswold v. Connecticut--there, he clearly agrees with the result, but for different reasons (and for reasons, which, I must admit, strike me as just as confusing in the critique he makes of Douglas):

"Earl Warren did not write an opinion in one of the most important cases decided during his tenure as chief justice--Griswold v. Connecticut (1965)--the case challenging the constitutionality of a Connecticut statute making the use of contraceptives a criminal offense.  He must, however, accept responsibility for assigning the majority opinion to Justice Douglas, who, unfortunately, crafted an imaginative rationale for reaching an obviously correct result.....Justice Douglas's opinion is now famous--or infamous--for its reliance on the proposition 'that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.'  In his view, the statute violated the 'penumbral rights of "privacy" and "repose"' that earlier cases had protected.  Presumably he avoided the straightforward reliance on substantive due process that Justices Harlan and White advocated because of his concern that construction of the word liberty that would be broader than the specific guarantees in the Bill of Rights would rejuvenate the universally despised decision in the Lochner case.  Unfairly, in my opinion, Justice Douglas interpreted, '[o]vertones of some arguments'--presumably those of the appellants challenging the Connecticut law--as suggesting that the Lochner case 'should be our guide.'  It would have been more accurate to describe those arguments as identifying a critical difference between Mr. Lochner's claimed right to freedom from regulation of his economic decisions and the kind of fundamental right that Justice Holmes identified in his Lochner dissent......(107-108)

Stevens becomes absolutely apoplectic when talking about Rehnquist's opinion in Seminole Tribe of Fla. v. Florida (1996)--he thinks Rehnquist is a great guy, but he does not like the way he adorned his robe with special stripes, and he thinks this decision is one of the worst ever!  It deals with the issue of sovereign immunity and is another topic in Constitutional Law that made me want to throw up.  Regardless, "[l]ike the gold stripes on his robes, Chief Justice Rehnquist's writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.  I am hopeful that his writings in this area will not long be remembered." (197)

He has good things to say about Justice Jackson (who might be in my top 5 favorites) but he scolds him for leaving the court to serve as Lead American Prosecutor in the Nuremberg Trials.  I am quite surprised that Stevens believes this was such a great error.  Indeed, from what I have read, it seems as though Jackson benefited greatly from the experience, and learned more about the degree to which the United States was threatened by shades of totalitarianism.

One final word on Citizens United:  I mentioned before that I got a B in Con Law.  Well, that is only Con Law I and II--that is, Separation of Powers, Equal Protection Clause, Due Process Clause, Commerce Clause, etc.  First Amendment is Con Law III at our school and I am still awaiting my grade.  I am praying for a good one because I just got a C+ in Accounting for Lawyers--tied for my worst grade in law school.  So it is quite funny to see Stevens speaking of a "passing grade" in a similar context:

"It is easy to gloss over the difference between prohibitions against the expression of particular ideas--which fall squarely within the First Amendment's prohibition of 'rules abridging the freedom of speech'--and prohibitions of certain methods of expression that allow ample room for using other methods of expressing the same ideas.  The difference is much like the difference between speech itself and money that is used to finance speech.  Given the fact that most of his colleagues joined the chief in his funeral-speech opinion, perhaps I should give him a passing grade in First Amendment law.  But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so."  (221)

Another place where an exclamation point would not be appropriate--but another one of the best declarations in the book.

In the end, Justice Stevens is wary of offending his colleagues, and he puts it better than anyone else I have ever read or heard, when he mentions that, while it seems like they all hate each other in their opinions (indeed if one reads Heller v. United States (2008), it looks like Stevens and Scalia are about to go for each other's throats--but Stevens mentions in this book that he is actually very good friends with Scalia), a greater intelligence is at play:

"I have no memory of any member of the Court raising his or her voice during any conference over which I presided or showing any disrespect for a colleague during our discussions.  In his State of the Union address in 1976, President Ford eloquently referred to our country as a place where Americans can disagree without being disagreeable.  That comment accurately describes the Supreme Court where I worked.  It is a place where we not only could but regularly did disagree without being disagreeable."  (244)

In short, one could do far worse than following the example provided by Justice Stevens, and Five Chiefs (like The Prince) may be considered a sort of  "how-to" manual: how to be a great jurist, and a great person too.