A People’s History of the Supreme Court – Peter Irons (2006)

A People’s History of the Supreme Court is modeled after Howard Zinn’s A People’s History of the United States, a book I have not read but have often seen in the bookshelves of friends.  As such this review may be lacking.  It would be interesting to compare the books to one another and see which is more “readable.”  This book clocks in at 531 pages and covers the period between 1787 and 2006.  It mentions every single Supreme Court Justice, but it is less about the personnel of the Court than the cases brought before it.  There are glimmers of greatness in this book, but I must confess that it eventually began to bog me down.  This may be attributed to the fact that I have previously read and reviewed The Brethren, Wild Bill, and The Nine—three books which mine similar territory to this book’s final 130 pages.  Regardless, the first 400 pages were often more interesting than not, and Irons has created a largely admirable work. 

But first, I cannot resist tying in a personal connection.  Few readers of Flying Houses have been with us from the beginning (those inauspicious days of April through July of 2008), but it is worth noting that Irons’s literary agent was the subject of an early post.  “Finally, let me thank some of the people who helped make this book come to life.  My agent, Sandy Dijkstra, found my editor, Jane von Mehren, whose meticulous and thoughtful editing has improved the book immeasurably.” (xix) Now, there are not all that many literary agents.  There are the heavy hitters, and they keep large rosters of writers.  However, I found this mention quite ironic.  Ms. Dijkstra was the only agent to respond to my query on my first novel.  She rejected it, and I attacked her in the post linked to above, which mentioned her derision for the original title of The Joy Luck Club. 

First, let me note that I am not the same person I was in 2008.  Many changes have taken place and I would probably not be so critical of Ms. Dijkstra as I was in those impetuous days of my mid-20’s.  Second, let me note that my complaints have not abated, and that the publishing industry continues to irk me to no end.  I went to law school in a time of economic turmoil, and I felt that getting a job with a law degree would be easier than getting a first novel published.  My dreams remain intact, however, and soon it will be time to test those waters again.

With that out of the way, Irons opens up his book by explaining that he was an ex-con admitted to Harvard in his mid-thirties.  He went to jail, “serving a three-year sentence for refusing military induction in 1963.” (xvii)  He also was instrumental in reopening the wartime internment cases of Fred Korematsu, Min Yasui, and Gordon Hirabayashi.  In short, Irons mentions these facts in the introduction to the book as a way of setting up the reader’s expectations.  Yes, he is probably going to be taking a “liberal” stance on the cases to be discussed. 

This does not make the book any less valuable, however, because Irons is a very good researcher.  The book opens with what is probably its strongest point of coverage: the Constitutional Convention in Philadelphia, PA in 1787.  For the first 75 pages or so, Irons brings the real “framers” to life and makes it feasible for 21^st century readers to understand them and maybe even identify with them.  This part of the book is truly special because there have been numerous debates about the “original intent of the framers” and how to decide cases from a “textualist” perspective.  Irons delves deeply into this material—but not so deeply as to make it a bore.  I have to believe that many Americans would find this portion of the book to be a “page turner,” even though it makes virtually no mention of the English court system or how the American court system would differ.  He does offer up a real stinger to the pro-gun lobby:

“In recent years, advocates on both sides of the ‘gun control’ issue have debated the ‘original intent’ of those who framed the Second Amendment.  Elbridge Gerry, Madison’s adversary in both Philadelphia and New York, offered this defense of the proposed amendment: ‘What, sir, is the use of a militia?  It is to prevent the establishment of a standing army, the bane of liberty.’  Arming the citizens who belonged to state militias, Gerry argued, would deter Congress from establishing a federal army that might oppress or invade the states.  Those who now advocate the constitutional ‘right’ of every citizen to ‘bear arms’ of any kind—from cheap handguns to assault rifles—are well advised to read the debates that led to adoption of the Second Amendment.  Not a single member countered Gerry’s argument that the ‘right to bear arms’ was limited to members of a state militia.  The current opponents of gun control legislation pay little heed to the Framer who spoke most clearly to the ‘intent’ of Congress on this controversial issue.” (75)  

From there, he moves into a discussion of George Washington’s first appointments to the Supreme Court.  This may well be the most hilarious portion of the text.  It is understandable that the Court seems “bush league” because it was in its infancy.  They barely have any work to do at first, and many of the Justices simply failed to show up for work.  Nobody really seemed to care, though.  The Supreme Court was in New York City in those early days.  It is worth noting that Irons writes with an eye towards entertaining “lay readers” (i.e. those that have not studied the primary materials themselves) and at times he writes with literary flair:

“The men Washington placed on the Court, in contrast [to Franklin Roosevelt], were a thoroughly undistinguished lot.  One spent time in debtors’ prisons for defaulting on loans; one returned his commission after five days to serve in state office; one never attended a single Court session; one was impeached for political bias on the bench; one was insane; and another was senile.” (86)

Things changed in 1801 when John Marshall took the post of Chief Justice.  Irons mentions that there are more than twenty books about Marshall and practically everything is praiseworthy.  Irons is careful, however, and keeps a critical eye on the Justices, primarily in regards to their views on slavery.  He is very tough on Marshall’s successor, Roger Brooke Taney, whom he denounces as a “racist” perhaps a dozen times, but he is more even-handed with Marshall:

“For almost two centuries, praise for Marshall as a judicial statesman has far outweighed criticism of his role as Chief Justice.  But the historical scale requires some balance.  Marshall was plain and humble in person, yet he was an aristocrat in outlook.  He came from a state [Virginia] that vigorously insisted on its ‘sovereign’ rights within the Union, but he favored the ‘General Government’ in almost every case he decided.  He read the Constitution broadly to protect the rights of property, but narrowly when he addressed individual rights.  Most important, Marshall disregarded his ‘feelings of humanity’ and looked at blacks as property, not as persons.  This last weight on the historical scale strips the mantle of ‘statesman’ from Marshall’s shoulders.” (141)

At this point it seems prudent to consider the usefulness of this book to law students.  There is probably no better book for incoming 1Ls to law school than this, for it covers almost every single case that will be encountered in any course on Constitutional Law.  This is what makes the book largely admirable.  While The Nine may be a more intriguing read because it covers events that most of us are not too young to remember, this book explains the foundations of the major doctrines of Constitutional Law—it is thorough on First Amendment cases and the Equal Protection Clause; it mentions substantive due process in passing; it covers the early Commerce Clause cases in fair detail (but unfortunately fails to mention Wickard, Lopez, Morrison, or Raich); it covers the “laissez-faire” period of the Court and the Lochner decision quite well; and it draws useful distinctions on the voting of certain Justices on the value of precedent and deference to the legislature against judicial “activism” and “voting from the gut.” And the Table of Contents will be useful for law students that wish to gain a more “human” grasp on what is actually being said in the opinions they are studying, for it includes all the cases mentioned.

The coverage of the major Marshall Court decisions is phenomenal.  Marbury v. Madison and Martin v. Hunter’s Lessee are brought to life, and Irons thankfully explains Marshall’s personal role in each, which some professors may mention but may just confuse law students, for the facts behind each case are so bizarre.

His coverage on Chief Justice Taney’s reign is focused squarely on the Dred Scott decision.  I had no idea how complicated the facts behind this case were, but while Irons explains that details on it are sketchy, he does an excellent job of telling the story of how Dred Scott came to bring his case before the Supreme Court.  This is a very long section of the book and probably has the most detailed analysis of any single decision.  This case is not a major point of study in law school, but it is interesting reading. 

He also covers the case Ex parte Milligan in good enough detail that it will prove helpful for law students.  This is a case that is studied more often, and it is these early cases (up through the Slaughterhouse Cases) that make for the most difficult reading in a law school course and accordingly prove to be the most valuable portions of the book.  But what comes across most clearly is Irons’s distaste for Taney:

“Lincoln correctly charged Taney with trying to ‘nationalize slavery’ by his twisted and tortured reading of the Constitution in Dred Scott.  That his opinion was ultimately reversed by constitutional amendment is no consolation to the hundreds of thousands of young men who died after the Supreme Court shot holes through the Constitution.  It is fitting to speak ill of the dead when they committed acts of infamy.  Taney wrote an infamous opinion in Dred Scott, and no later judgments of his judicial ‘greatness’ can remove that stain from the Court’s history.” (184)

Irons also does his best to define what “partisanship” meant in the 19^th century, but I must confess that I still find what the parties stood for to be confusing:

“(The change in party labels requires a brief digression to avoid confusion.  The Federalists changed their name to the Whig Party between 1836 and 1856, when they became the second Republican Party, adopting the name of their former opponents.  The Jeffersonians who first called themselves Republicans abandoned that name in 1828—after using the hybrid title of Democratic-Republican for several years—to become the Democrats.  If this sounds confusing, it is.  But the nineteenth century saw a proliferation of party labels, including Free-Soil, Liberty, Union, American, and Anti-Mason.)” (122)

The next major point the book takes on is Plessy v. Ferguson.  This will be more useful than the coverage on the Dred Scott case because it is arguably more infamous for its precedential value.  (Irons also covers the Yick Wo v. Hopkins case and explains its facts quite well.) While the story of Homer Plessy is not quite as entertaining as that of Dred Scott, it is interesting to know that he could “pass” as a white man and that he actually wanted to get arrested so that he could challenge the separate accommodations for whites and blacks at the time.  Here, Justice John Marshall Harlan is the only dissenter in the case, and he emerges as one of the more noteworthy Justices and not just because his grandson would take up the post 44 years after he retired.  Again, Irons turns a critical eye on an apparently “liberal” justice that is worthy of praise:

“The notion of a ‘color-blind’ Constitution has enormous appeal as a guiding principle.  But there are dangers in substituting slogans for hard, realistic analysis.  Harlan’s famous sentence [‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’] has been ripped from its context by those—including Supreme Court justices—who have wielded it in recent years as a weapon against affirmative action and other ‘race-conscious’ remedial laws and programs.  Those who quote the ‘color-blind’ sentence invariably fail to quote the sentences that preceded it in Harlan’s opinion.  ‘The white race deems itself to be the dominant race in this country,’ he wrote.  ‘And so it is, in prestige, in achievements, in education, in wealth and in power.  So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.’
Harlan stated in these sentences the reality of race in 1896.  Whites held the reins of power, which they used to whip blacks into submission.  Harlan does not deserve scorn for acknowledging this reality, however much it reflected the ‘pride of race’ that he celebrated.  He had no more desire for ‘social equality’ with blacks than Justice Brown.  He was, after all, a man of his times, the son of slave owners and a man of superior prestige, education, wealth, and power.  But he was not a racist like Chief Justice Taney.” (230-231)

Irons makes a similar point about Abraham Lincoln, quoting from a speech where he says that he is not for social equality with blacks, though he is definitely against slavery.  This is surprising and some of these glimpses into the realities of the times are another factor that make this book worth reading. 

However, around this point, Irons switches his focus to the First Amendment, and Oliver Wendell Holmes, Jr. and the Schenk case in 1917.  He focuses on the “incitement” cases during World War I in First Amendment jurisprudence for quite a while, perhaps because of his own skirmishes with the law in the 1960s.  While this coverage is good, it is at this point that the Court’s decisions began to speak more for themselves than coverage on them.  There is quality coverage on Holmes as one of the greatest Justices in history, and also Louis Brandeis.  But, at least in my course in the First Amendment, our professor covered these cases in such fine detail that Irons’s descriptions amounted to little more than a nostalgia trip. 

He does cover the New Deal cases in excellent detail—the Schecter Poultry v. United States, West Coast Hotel v. Parrish, and National Labor Relations Board v. Jones & Laughlin Steel Company cases are quite important in defining the contours of the Commerce Clause, and law students are likely to find Irons’s emphasis of the importance of these decisions useful.  But it is also at this point that I began to lose interest in the book and “went through the motions.”  Of course, I was excited for the year 1939:

“Born in Minnesota in 1898 and raised in Washington state, William O. Douglas went east as a young man to Columbia Law School, where he taught after graduating at the top of his class [Not exactly—see Wild Bill review].  He moved to Yale’s law faculty in 1928, joining the ‘legal realists’ who looked behind judicial doctrine to explore the social, political, and economic forces that shaped the law.  Douglas staked a claim in the growing field of public and corporate finance, and Roosevelt picked the young professor to head the Securities and Exchange Commission.  Word got around that Douglas was a card shark, and he soon became one of the president’s ‘poker buddies’ and a New Deal insider.  Ironically, the only four senators who voted against his confirmation opposed Douglas as a ‘reactionary tool of Wall Street.’
William Douglas joined the Court at forty, the youngest justice since Joseph Story.  He stayed for thirty-six years, the longest tenure of any justice.  Douglas came to the bench without a well-defined judicial philosophy, and left as he came.  Much like the woodsman he was, Douglas avoided the beaten path and blazed his own trail.  Raised in poverty and struck by polio as a child, he developed a visceral sympathy for society’s ‘outcasts,’ including Communists and criminals.  He shared Frankfurter’s expansive view of due process and Black’s ‘absolutist’ devotion to the Bill of Rights.  Douglas was often criticized for failing to articulate a coherent judicial philosophy.  Certainly he never followed the narrow—but divergent—path from which Frankfurter and Black rarely strayed.  But there was an animating principle behind the twelve hundred opinions Douglas wrote over more than three decades.  ‘Our starting point has always been the individual, not the state,’ he wrote in 1958.  However far he wandered from the beaten path, Douglas never lost sight of his judicial lodestar.” (328-329)

So I really cannot complain about the coverage of Douglas, except that it is short and mentions nothing about his personal life.  There is also a nice quote about Justice Brennan:

“Perhaps the warmest tribute came from a former law clerk, Richard Posner, now a notably conservative federal judge.  Justice Brennan’s lasting influence, Posner wrote, stemmed less from his ‘commitment to a doctrine’ than from ‘the emanation of a warm, generous, and good-hearted person.’” (474)

There is not much else I can say about this book.  I think I have made my points relatively clear.  There are better books to read about the Court in the 20^th Century, but I have not read anything as compelling as this on the 18^th and 19^th century Court (though I have not been very interested in reading anything about it also).  Irons chief focus seems to be racism and later on, affirmative action programs, sprinkled in with the two major gay rights cases in 1986 and 2003.  He ends in 2006, largely focusing on the Guantanamo Bay cases, and barely mentioning Chief Justice Roberts and Justice Alito.  As I mentioned in the review for How Judges Think, this book may be due for a revision.  It is unfortunate that Irons does not mention Buckley v. Valeo, but any description of the Court that includes 2010 will include Citizens United and any mention of that case requires reference to Buckley.  This book was already revised once, however, and it is unclear that much could be added, though the opinions handed down by the Court this past summer certainly fall in line with Irons’s predictions regarding the path of gay rights.  Jeffrey Toobin did an excellent job on Citizens United and the Affordable Care Act Cases in The Oath so there is at least good reading material out there.  Irons work as a scholar of the “ancient history” of the Court is what makes this book most special, and though I have not read Zinn’s famous volume, I am sure this stands up alongside it fairly well. 

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.

The Brethren - Bob Woodward & Scott Armstrong

"Justice Brennan, 

take out some insurance on me, baby, baby

it's just the i'm busted and dripping, 

my sorry lungs are all leaking, 

it's all over, it's all over i said, 

the last fair deal going down. 

you let your gown to the ground, 

but i'm not waiting around until the kiss-off. 

wasn't it you who said yeah you can shoot me lightly, 

but ask me to be excused, i won't go die politely

anytime that you want you can shoot me lightly,

but ask me to be excused, i won't go die politely. 

justice brennan, i know it's not your fault,

no baby no baby. 

it's just that you're busted and dripping, 

your sorry lungs are all leaking, 

it's not over, it's not over, i said. 

here comes the kiss-off."

-Fugazi, "Dear Justice Letter" 

This song was written at the end of the Supreme Court term in 1990, after Justice Brennan retired.  He had served more than 33 years on the Court, and was 84 years old at the time of his retirement.  He died seven years later.  It would be quite uncharitable for Fugazi to claim that Brennan quit too early, and indeed I do not think that is the point of this song.  Rather it appears to be a lamentation of the reality that the Court now had replaced Brennan, one of the strongest liberals in the history of the Court, with Souter.  Now Souter was somewhat unpredictable--but President Bush appointed him on the theory that he would be a "good right-wing vote."  Clearly this was not the result in many cases, but the Court appeared to be deprived of all its hard-line liberals: only Thurgood Marshall was left.  Harry Blackmun had skewed liberal as time progressed, and John Paul Stevens was essentially liberal, but by no means a "solid vote" for that side every time.  Sandra Day O'Connor was, like Souter, a Republican in name but perhaps the most ideological "centrist" on the Court.  While some of this may be interesting to general readers, this post is not intended as political commentary.  It is a review of The Brethren, which concerns a different Court--the Warren Burger Court from the 1969 through 1975 terms.  Now, I am studying for my First Amendment Law exam on Wednesday and some may view this review as a waste of precious studying time, so I hope you will forgive me if I skew heavily in favor of First Amendment cases so that, when I return this book to the library, I will at least have this post as a sort of "back-up file."

The first and most obvious thing to mention about this book is that it is written by 1/2 of the notorious duo responsible for All the President's Men, as well as for breaking the Watergate Scandal story in The Washington Post.  And it is quite wonderful that Bob Woodward has stayed active in the arena of political reportage.  It is always interesting to see what he has to say.  I must concede that I read All the President's Men when I was a senior in high school, for a course in journalism, and that I was unable to appreciate most of the action that took place during those tense months in Washington.  I must also concede that I am a huge fan of the film Nixon and that I am still somewhat mystified by the extraordinary distaste that the vast majority of American society has for that former President.  Indeed it appears to me that he had no reason to lose the 1972 election, had no reason to "cheat," and was simply a rather insecure candidate who was poorly advised. Frost/Nixon paints quite a different portrait of the man than the Oliver Stone biopic does.  But again, we must address the book at hand, not a political situation.

This connection between these two books is significant, however, because Woodward & Armstrong express rather uncharitable views on Warren Burger.  They glorify Earl Warren as a hero, and indeed so does almost everyone I have ever heard utter his name.  By all accounts, he was perhaps the greatest Chief Justice in the history of the United States Supreme Court.  And after reading The Brethren, most readers would be easily inclined to view Warren Burger as the worst Chief Justice in the history of the Court.  The irony is not lost on others, either, of their progression: Earl Warren - Warren Burger.

The Introduction to this book states that "[m]ost of the information in this book is based on interviews with more than two hundred people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court.  Chief Justice Warren E. Burger declined to assist us in any way." (3) They go on to state that they only make characterizations of the Justices after having several individuals from each chambers confirm that a particular view was generally held.  But the most striking thing about this book is the body blow it deals to Burger.  

Burger is absolutely torn apart nearly every single time he is mentioned.  While the events of this book may be accurate, they are certainly shocking.  And I have to believe that some of the statements are somewhat incredible.  There is one in particular that I recall being quite ridiculous (actually taken from the Memoirs of Richard Nixon):

"'Speaking in the greatest confidence, Mr. Chief Justice,' Nixon replied, 'I am realistic enough to know that if this operation [the U.S. Military incursion into Cambodia] doesn't succeed--or if anything else happens that forces my public support below a point where I feel I can't be reelected--I would like you to be ready to be in the running for the nomination in 1972."  (79)

Now perhaps this statement is in fact true, but one needs to point out the obvious: it is way better to be a Supreme Court Justice than a President!  I do not understand why millions of children across this nation are told by their parents that, "You can do anything--you could even be President of the United States one day!"  Now true, the President is ultimately the #1 most public figure in the Nation and the most powerful standing alone, but it just goes to show the irrationality of people.  It is an incredibly difficult job where you are subject to personal attacks and probably go gray and age much faster than normal people do.  You are in the limelight.  You get to live in the White House, and that is cool, but you also have to do all of these press conferences and take responsibility for all of the actions of government--some of which you have absolutely nothing to do with whatsoever.  Plus, the longest you can stay in the job is 8 years.  Afterwards of course, you are regarded as a celebrity.  But look at every President since JFK:

JFK = beloved, and assassinated.  

LBJ = did not seek second term, widely reviled.  

Richard M. Nixon = resigned.  

Gerald Ford = not viewed all that charitably, mostly remembered for his wife Betty.
Jimmy Carter = sometimes regarded as one of the "weakest" Presidents in history.  

Ronald Reagan = remembered for economic deregulation and Iran Contra Scandal, even blamed for 2008 Financial Collapse.  

George H.R. Bush = did not get elected for a second term (though history has been pretty kind to him, I must say). 

Bill Clinton = Impeached, and though fondly remembered, one cannot forget the rank arrogance of carrying on an affair while in that post--though I do credit him for opening up (later) and being honest.

George W. Bush = Often called the worst President in history while he was in office for 8 years, always mocked for his stupidity.

Barack Obama = a real triumph for America as the first black President, but always questioned about his citizenship, and bashed to all hell regarding his solution to the 2008 Financial Collapse.

By contrast you have the Chiefs since then:

Earl Warren = beloved by every account.

Warren Burger = A question mark, but for the extreme criticism in The Brethren.

William Rehnquist = Another question mark, but for some criticism in The Brethren and The Nine.

John Roberts = Did not receive the blame for Citizens United (Anthony Kennedy did), got some glory for the Affordable Care Act decision, stumbled through Obama's first inauguration--too early to tell--may serve as Chief until 2035 or later.

I think it is quite clear that it is way better to be a Supreme Court Justice than a President, and had Burger actually tried to run for President, it would have been a horrible career decision.  My point is that more parents should impress upon their children that "one day, they could even be a Supreme Court Justice!" --NOT the President!  

Moving on, I do not want to discuss how much this book disses Justice Burger, but I do want to talk about my favorite Justice in it: Justice Douglas.

Justice Douglas (along with Brennan, it must be admitted) is one of the greatest Justices in history.  He joined the Court in 1939 as the replacement for one of the other greatest Justices in history (Louis Brandeis) and he served until 1975.  He currently holds the record for the longest tenure of anyone.  He was an environmentalist before it became fashionable, loved the national parks, and most controversially was married four times (the last two being in his 60s to girls in their early 20's).  Whenever his name appears in The Brethren it is almost always automatically amusing.  One is struck by his powerful beliefs and unflinching views.  It's quite possible that he was the most hardcore liberal that has ever been on the Court (and thus comprised a powerful troika with Brennan and Marshall).  On the subject of courtroom decorum in a case involving a Vietnam War protest outside the Supreme Court building, Woodward & Armstrong reported:

"Douglas intended no delay.  He prided himself on being the fastest writer on the Court.  He often turned out an opinion the day after an assignment; his separate opinions were ready weeks, if not months, before the majority opinions.  His clerks often called these 'plane-trip specials,' because they were written after the Friday conference on an airplane, as Douglas traveled to some speaking engagement.  At times he mailed longhand drafts back to the Court, so that they could be printed and ready for revision upon his return.  The other Justices all acknowledged Douglas's brilliance and incredible productivity, White called him a 'paper factory.'  Douglas was so prolific that once when former Justice Charles E. Whittaker was unable to draft a majority opinion, Douglas finished his dissent and then wrote Whittaker's majority for him.

But the others also had come to wonder if Douglas's opinions--often disorganized treatises on sociology rather than the law--did not sometimes fall victim to his unrelenting pace and curiosity.  Declaring 'there will be no errors in my opinions,' Douglas, just the same, refused to allow his clerks to edit them." (63)

While we are on the subject of Douglas and his clerks, it bears mention that he often treated them poorly, which is quite amusing.  His clerks for the 1972-1973 term--Janet Meik and Carol Bruch--were eviscerated by him.  The book explains that Douglas's abuses of his clerks were "legendary":

"The following term [1969-1970], Douglas told one of his two clerks that he would be fired except for the fact that he was a nice boy and that he was so incompetent that he would not be able to get another job.  'I can get better legal advice from drunks in the gutter,' Douglas said."  (241)

Bruch in particular takes a lot of abuse from Douglas.  "'If you're in over your head, you can leave and I'll get someone else,' he said, hanging up in a fury." (Id.) After he wrote a cryptic note on one case that appeared to ask her to apply an area of the law that had nothing to do with the case, she said to him, "'Excuse me, Mr. Justice, I've been looking at this note and I'm afraid I don't understand it.'  

'I'm not running a damn law school,' he barked." (242) 

Later, I personally think she makes a huge mistake when she leaves him a note that says, "I'm very sorry I made a mistake on this case.  I'm sure there will be other times this year when I will make other mistakes.  However, I've found that civility in professional relationships is most conducive to improved relationships.  You can afford to be basically polite to me."  (Id.)  Later in the week, he says to her, "I gather that you think I'm not civil.  Nothing that I ever say is personal.  This is the rough-and-tumble of the law as practiced in courtrooms daily.  If my law clerks can't take it, I don't want them." (Id.)  Then she responds, "I don't need unnecessary sarcasm, Mr. Justice."  (Id.)

Their relationship further deteriorates and he begins ignoring her.  I will stop writing so much about Douglas now but I must mention the way the clerks are portrayed in this book.

They are portrayed as the "real writers" of the opinions--particularly of Marshall's.  And I often find the characterizations of them annoying and immature.  I am particularly upset that such clerks find their way into this position.  These are people that generally go to the top law schools and then seem to walk around the place like they own it.  If I were so lucky as to even be considered for a position such as that,  I would always tread cautiously--and never talk back to Douglas!  I realize things were different in the late 1960s and early 1970s, but the recent law grads of those days act more like the recent college grads of today.  Particularly lame is when they form a choir for a holiday party and sing a song about how Nixon appoints new Justices.  I cannot say anything more on the subject.

Brennan deserves to have more of a place in this post than I am giving him, but I have grown tired of thinking about this book as a whole.  It is simply worth noting that Brennan emerges as the most powerful member of the Court, and the angriest.  While Douglas's retirement would be worth noting (as would Justice Black's) I simply do not want to spoil those for the reader, as they are some of the most incredible and moving scenes in the book.  Brennan, however, remains and there has probably not been anyone as liberal as him on the Court since his retirement.  One could say that Justice Ginsburg, or perhaps Sotomayor or Kagan, approach him, but it is too early to tell for the latter two.  Justice Stevens appears at the end of the book as Douglas's replacement and is referred to as the "wild card." While I still consider Stevens to be one of my favorites of all time (indeed the one person living that I would most like to have dinner with, if I could) and was always quick to point out that he was the only one on the Court in the 2000s not to go to Harvard or Yale--I was somewhat dismayed to find that he graduated #1 in his class (from Northwestern).  Clearly, no one from Brooklyn Law School will be appointed to the Court anytime soon (except for maybe a faculty member that taught here).  

It is somewhat ironic that the book considers Brennan something of a "mouthpiece" for Marshall.  "Marshall parroted Brennan," (442) according to the unattributed thoughts of Justice Stevens, which is one of the more confusing literary techniques Woodward & Armstrong use.  It has been suggested that Brennan was something of a "reverse-Scalia" -- extremely vocal and angry -- but super liberal rather than super conservative.  And the irony appears when Marshall is replaced by Thomas, who often dispelled accusations of being Scalia's "parrot."  It's a perfect example of the moment the Court changed--not when Brennan retired, but when Marshall retired.  It hasn't really been the same since, and some people wonder whether the composition of the Court will change in the next four years.  It seems doubtful that Scalia or Kennedy would be willing to retire before 2016, but I would not be all the surprised if Ginsburg retired during Obama's next term.  There will be a very interesting same-sex marriage case next year, and though I didn't mention this above, one of the more amusing aspects of The Brethren is the way that the Justices simply do not want to retire because they love their job too much.  Once you're in, unless you have a nervous breakdown and just can't take it or have some sort of scandal (both of which are mentioned in this book), they'll probably need to wheel you out.  

The Brethren, like The Nine (reviewed here http://flyinghouses.blogspot.com/2012/01/nine-inside-secret-world-of-supreme.html) is quality reading, particularly for law students.  I would say that it is a more entertaining book than The Nine and they are pretty similar in length.  The Nine is just denser, and deals much more heavily in the appointment process, as well as the Bush v. Gore decision.  The Brethren, predictably, deals heavily in the Nixon v. United States decision--but it also discusses the voting strategies of far more cases, and is thus more revealing (if not useless) to the law student who happens to be studying them.  However, The Nine is much more "respectful" to the Justices whereas this book treats the Justices more like "human beings" or "mere mortals."  This is a nice perspective to have, but I can't help but feel that this book, more than The Nine, makes the Court appear more petulant and politically-interested than interested in applying a coherent body of law.  Regardless, it is a great book, and I am very glad it was written.  The only thing that remains to be made is a Ken Burns documentary on the Supreme Court.  That would be awesome.  

Appendix

This is for purposes of studying for the First Amendment Law.  It will mention every case that we have studied in the particular section of our course that is mentioned in this book.  Caution: there is a lot about the obscenity cases in this book so I will do my best to keep the passages limited to the essentials.

Gooding v. Wilson (1972) (this is nothing substantive: just an example of Burger's case assignment mischief...)

"In another case, the Chief had assigned a case in which he and Blackmun were a two-vote minority.  Douglas, as the senior justice in the majority, had already assigned this case at conference to Brennan."  (170)

[Note: Brennan actually did end up delivering this opinion--Burger dissented, stating that, "It is not merely odd, it is nothing less than remarkable that a court can find a state statute void on its face, not because of its language--which is the traditional test--but because of the way courts of that State have applied the [fighting words] statute in a few isolated cases, decided as long as 1905 and generally long before this Court's decision."]

[When Rehnquist and Powell join the Court after Black and Harlan retire, the case emerges again]:

"One 4-3 case involved an antiwar demonstrator who had cursed at a policeman (Gooding v. Wilson).  The Chief said it should be re-argued.  

Douglas was sure the vote had been 5 to 2.  'Who was the third vote to reverse?' he asked.

'White,' the Chief replied.

His jaw jutting out, White stared at the Chief.  No, he was with the majority, he stated.  The issue of reargument was finally dropped."  (177)

Roth v. United States (1957)

"The Court's sin, Douglas felt, had been to make obscenity an exception to the First Amendment in the first place.  And the original sinner, the father of obscenity law, the author of the first Court opinion that had attempted a definition, was Bill Brennan.  In a 1957 case (Roth v. United States), Brennan had written an opinion holding that there was one category of expression, obscenity, that was not speech, and thus was not protected by the First Amendment and could properly be banned." (194-195)

"Douglas knew that Brennan had developed his definitions to protect serious literary works--James Joyce's Ulysses, William Faulkner's Sanctuary, Erskine Caldwell's God's Little Acre--from overzealous prosecutors and judges.  Under Brennan's definition, material was obscene if, to 'the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.'  But lower courts continued to ban material Brennan thought was obviously not obscene.  For a plurality, in a 1966 opinion (Memoirs of a Woman of Pleasure [Fanny Hill] v. Massachusetts), Brennan had next tried a formulation holding that material had to be 'utterly without redeeming social value' before it could be banned.  This placed the burden on prosecutors to prove that nothing in a work redeemed it.  Pornographers then took to citing medical reports or throwing in lines from Shakespeare to protect the product." (195) 

Stanley v. Georgia (1969)

"In Douglas's view, these efforts by the Court to define obscenity were absurd.  The only remotely rational development, he felt, had occurred in a 1969 case (Stanley v. Georgia) when Marshall had said obscenity was largely a personal privacy question.  He had written, 'If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he must watch.' 

As defense lawyers attempted to expand the logic of Stanley, hundreds of cases began working their way up the Court.  If there was a constitutional right to possess obscene material in one's home, then there was a right to buy it.  If there was a right to buy it, there was a right to sell it.  If there was a right to sell it, there was a right to distribute it.  If there was a right to distribute it, there there must be a constitutional right to write, photograph or film it.  Or so their logic went.

If the privacy logic could be extended all the way, the lawyers argued, the distinction between obscene and not obscene would become largely irrelevant.  There would be no need to define obscenity as long as people had the right to see and read what they wished.  But Brennan had dissented from Stanley, and during the previous two terms had refused to provide the liberals a crucial fifth to extend the logic.  Now, with White shifting and two new Nixon Justices taking their seats, Douglas feared that a majority modify Brennan's old definitions and declare a war on pornography--and soon on free speech."  (195-196)

Miller v. California (1973) -- Decision to pass over to the next term

"The Chief could hardly wait for three obscenity cases that were to be among the first argued to the full nine-man Court.  He considered it fortunate that the Warren Court liberals had never gotten five votes to agree on a definition; that would have settled the law.  Their lack of agreement gave him an opportunity to leave his mark in an area of the law on which the Court had been stumbling for fourteen years.  There had to be a way to suppress pornography and still protect free speech, he felt.

The January 21 conference, with Powell and Rehnquist now in attendance, was a test of endurance.  By the time the Justices got to the three obscenity cases, their energies had measurably faded.  The first case (Miller v. California) was the most difficult, in that it raised questions about the definition of obscenity.  The conference put it aside and turned to two cases that involved extending the Stanley privacy decision (* U.S. v. Ortito and U.S. v. Twelve 200-Foot Reels of Super 8 mm. Film).

The discussion was complex, the positions difficult to follow, but Douglas counted votes quickly.  Stewart and Marshall were ready to vote with him to extend the Stanley decision to cover both cases.  To Douglas's surprise, Powell also joined them.  In an effort to bring himself up to par on constitutional law before he arrived at the Court, Powell had asked associates at his old law firm to prepare memoranda on major areas.  One of their recommendations had been to extend the Stanley privacy doctrine.  Powell was willing to follow the advice, at least tentatively.  Brennan and Blackmun seemed ready to go along with the four in one case, but not the other.  

The Chief waited and spoke last.  He was willing to go along in one case, perhaps both.  'I'll try my hand at the opinions,' he said." (196)

Paris Adult Theatre v. Slaton (1973) 

"Burger also shared Brennan's concern about protecting children from pornography.  'I consider the state free to make a serious felony out of any conduct that permits access to minors to nonprotected material,' he said.  Most importantly, he would be willing to extend the Stanley logic to permit importing pornography for private use.

Brennan was still partially encouraged but wondered what the Chief had in mind.  Surely his draft was not ready for publication.  He went to see Burger to talk over the situation.  

The next Monday, June 19, the Chief sent around a simple note.  'In the present posture of the [obscenity] cases neither Justice Brennan nor I can make specific recommendations as to the disposition of the cases held for opinion...We will discuss this at the June 22 Conference.'

Brennan reassessed the situation.  White, Blackmun and Powell seemed concerned with the need to give a publisher or seller fair warning that he could be prosecuted; he must be told what is obscene.  If that hurdle could be overcome, they might follow the Chief's lead and permit the states to restrict obscene materials even from consenting adults.  

To keep them from voting with the Chief, Brennan wanted them to take cases that did not involve unwilling viewers but rather cases in which consenting adults had sought out pornography.

One involved the sale of a pornographic novel without illustrations to an undercover police officer who asked to buy some pornography.  The other two involved an adult movie theater and an adult bookstore, both plainly marked, both without offensive advertising outside, and both of which refused to admit juveniles.  If those cases, involving only printed matter or consenting adults, could be argued early, Brennan might be able to show that his approach was preferable to the Chief's redefinition of obscenity.  

The conference on June 22 readily agreed with Brennan's suggestion to take the additional cases (* Kaplan v. California; Paris Adult Theatre v. Slaton; Alexander v. Virginia) and to argue them early in the next term.  They also put over the three cases before them.  They now had a package of eight cases that would present virtually every unanswered question in obscenity law." (203-204)

"Two weeks into the term, the Court heard the first of the obscenity cases.  These were three cases that Brennan wanted considered first.  They posed the question of whether states could ban consenting adults from walking into a theater or store and buying or seeing what they wanted and expected to see. There was no exposure of books or movies to unwilling viewers or children.

The first case involved the Paris Adult Theater in Atlanta, whose owner had been convicted of showing the X-rated movies Magic Mirror and It All Comes Out in the End.  At oral argument on October 19, the attorney for the theater noted the Chief's frequent public complaints about the Court's heavy case load.  One way to reduce it, he suggested, was to permit the 'controlled' sale and showing of sex-oriented films.  The courtroom erupted in laughter.  The Chief did not smile."  

JK: There is more about Miller v. California, but I grow tired of transcribing so much and worry that this may be the most flagrant violation of copyright that I have ever proffered on Flying Houses, so I will move onto other cases.

Cohen v. California (1971)

"Harlan's view of the First Amendment was not always so expansive.  Paul Cohen, a young antiwar protester, had been sentenced to thirty days in jail for disturbing the peace by wearing a jacket with the words 'Fuck the Draft' inscribed on the back.  Harlan termed this case (Cohen v. California) a 'peewee.'  

.....

Black found the conviction of Cohen so outrageous that he insisted that the Court summarily reverse the conviction without even holding oral argument.  Harlan's strong opposition prevented the summary reversal, and only reluctantly did he agree to have it argued.  

Many clerks, however, saw the case as symbolically important.  Sentiment against the Vietnam war was at its height.  Many of the clerks opposed the war, and felt a little guilty that they had signed up for a year with an establishment institution like the Supreme Court.  Most agreed with the sentiments on Cohen's jacket, and one way or another many had themselves avoided military service.  In a vote on whom to invite to a question-and-answer lunch, one of their top choices had been the outspoken anti-war activist Jane Fonda.  

The antiwar movement was part of the clerks' culture, and its slogans part of their politics.  The obscenities used to denounce Vietnam and the draft were important political expressions.  Clearly, if the First Amendment protected speech of any kind, it protected political speech.  Abrasive, outrageous expressions were sometimes called for.  'Fuck the Draft' was hardly the most extreme.  A decision against Cohen, in essence banning 'Fuck the Draft' from the jackets and posters of the antiwar movement, could have deeper ramifications, some clerks believed.  Police throughout the country were looking for grounds on which to curtail the activism unleashed by the war

....One of the clerks [in Stewart's chamber] fashioned a makeshift patch combining the themes [of flag sculptures and jacket slogans] and put it on the back of his suit coat.  'Fuck the Flag' it said.  He wore it for several hours around the chambers before deciding that he did not want to test the Court's tolerance for political speech in its own building." (128-129)

"The ritual that Harlan enjoyed most was sitting with his clerks on Thursday afternoons, reviewing the cases argued that week in preparation for the Friday conference.  The afternoon of February 25, the clerk he had assigned to the Fuck-the-Draft case reviewed the details at length, pointing out that according to Harlan's prior opinions, the slogan was clearly protected by the First Amendment.  Cohen's conviction was for the content of the message on his jacket, for his opposition to the war, and not for some disruptive conduct.  

For Harlan, and for all of his colleagues except Douglas and Black, there were exceptions to what was protected speech under the First Amendment.  The clerk went down the list to assure Harlan that none was involved.

Did the words advocate an insurrectionary act--the overthrow of government or interference with the draft?  No, they merely conveyed Cohen's view of the war and the draft.

Did the words immediately endanger observers--like shouting 'Fire!' in a crowded theater?  No, of course not.  

Did the words incite a noisy disruption?  No, the only one in the courthouse apparently bothered by them was the arresting officer.

Did the words provoke a violent reaction from observers, so-called 'fighting words?'  No, again only the arresting officer seemed concerned.  He had tried and failed to get the judge to hold Cohen in contempt.  

Were the words 'offensive' to unconsenting viewers?  This was the most difficult problem for Harlan.  Some passersby in the corridor might have been offended.  But they could have limited their exposure by moving away, the clerk argued.  The only captive audience would have been the one in the courtroom where Cohen appeared, but there he folded his coat over his arm, so that the spectators were not exposed.  Moreover, the clerk reasoned, a certain amount of 'offensive' exposure had to be expected in public.

....

At conference the next afternoon, the Chief referred to the case as the 'screw the draft' case.  He voted to uphold the conviction.  To everyone's surprise, Black's position had changed drastically.  He did not offer his absolutist position.  Instead, he agreed with the Chief: this was a question not of political speech but rather of the pernicious use of a vile word.  Cohen's jacket slogan was not protected 'speech' but unprotected 'conduct,' he said.  Cohen could be prosecuted.

With his most boisterous drawl, Black claimed that he was not deviating from his absolutism.  Conduct was different from speech.  His favorite example was picketing a courthouse.  It was unacceptable conduct, not speech.  People could not 'tramp up and down the streets by the thousands' and threaten others, for example. 

Douglas and the other First Amendment liberals--Brennan, Stewart and Marshall, who grumbled that it wasn't a case worth 'giving blood on'--all lined up in favor of reversing the conviction.  White and Blackmun sided with the Chief and Black.  

Harlan provided the days second surprise.  He had thought it over, and he was not leaning toward overturning the conviction.  But he was still not sure.  He wanted the case put over for a week.  He needed more time to consider it.  

The others agreed.

Douglas's clerk joked about how the 'magic word' set off such severe reactions in the 'Bad B's,' as he referred to Black, Burger and Blackmun.  Douglas was disappointed that Black had deserted his long-standing First Amendment position.  Perhaps Black was simply too old to understand these issues anymore, to pursue the reasoning necessary to draw consistent parallels.  But Harlan's hesitation offered little encouragement.  He would likely end up voting to uphold the conviction.  He too was out of touch with the country.  The key would be Black, Douglas figured." (129-131)

JK: This last quote may set a record for the longest single passage on Flying Houses.  There is more, but I believe this is enough.  But it is worth noting that Blackmun, Burger, and Black dissented from the majority in this case (which reversed the conviction), and White joined paragraph two of the dissent (written by Blackmun) which read, "I am not at all certain that the California Court of Appeal's construction of section 415 is now the authoritative California construction....Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of [a subsequent] decision by the State's highest tribunal.  (White did not join paragraph one of the dissent which reads "Cohen's absurd and immature antic, in my view, was mainly conduct and little speech...the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench.  As a consequence, this Court's agonizing over First Amendment values seem misplaced and unnecessary."  

Alright, that is enough on Cohen!

Buckley v. Valeo (1976)

"Also pending was a challenge to the massive federal campaign law, which had been enacted in 1974 to reduce the influence of big money and large contributions in political campaigns (Buckley v. Valeo).  The law had four major provisions.  It provided for the financing of presidential campaigns from federal tax revenue; imposed elaborate contribution and campaign-expenditure reporting in which contributors were publicly named; limited individual campaign contributions to $1,000; and set strict limits on campaign spending by candidates.  

Senator James F. Buckley, a conservative Republican from New York, and Eugene McCarthy, a liberal Democrat from Minnesota, had led the legal challenge, arguing that the limitations abridged free speech.  The case presented more than twenty constitutional questions."  (395-396)

[JK: As you can imagine, I am exhausted at this point, having finished this actual book at 9 AM this morning, and having taken an hour long nap in the napping room of the library, and it being 3:35 PM now]

"Douglas returned to Washington at the end of November.  When he came to his chambers, he buzzed for one of his clerks.  No one came.  He pushed the buzzer again.  Still no one.  It was strange.  They always came running.  He pushed longer and harder on the buzzer.  

Marty Bagby, Douglas's senior secretary, finally appeared at the door.

'Where are the clerks?' Douglas angrily demanded.

'There are no clerks,' she stammered.  The Chief Justice had reassigned his clerks while he was gone.  

Douglas glared at her.  No clerks?  He was a Justice.  He had work to do......

Douglas had been a full member of the Court when oral argument was heard on the campaign finance law.  He saw no reason not to participate in the decision, since his replacement would not be able to take part.  He decided to write an opinion......."  (396-397)