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.