David Garrow, Univ. of Cambridge, has a review coming out in American History, on both the upcoming PBS documentary, The Supreme Court, and a companion book, Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries that Defined America. He likes the book, and raises questions about the widely touted documentary. The review will be available on-line at Historynet.com, but isn't there yet. The print issue will be on newsstands February 6.
Update: Just found out it's ok to post the entire review. I'm doing that because it's not available elsewhere.
ANY TELEVISION documentary that features Chief Justice of the United States John G. Roberts Jr. as one of its many “talking heads” is certainly a rare opportunity for viewers to get a personal sense of the man who now leads the U.S. Supreme Court. In the four-part PBS series The Supreme Court, Chief Justice Roberts addresses subjects ranging from John Marshall, his most illustrious predecessor, who in the early 1800s institutionalized the court’s power to interpret the U.S. Constitution, to William H. Rehnquist, whom Roberts once served as a law clerk and whose 2005 death led to Roberts’ elevation.
Throughout the series, the producers make use of a veritable army of talking heads. Some interviewees, such as David G. Post of Temple University, R. Kent Newmyer of the University of Connecticut and Lucas A. Powe Jr. of the University of Texas, are superbly well-spoken historians who bring energy and meaning to the narrative. Other academics, however, seem pompous or slightly goofy, and the producers should have reduced their oversized roster to the
most compelling speakers.
The first hour focuses largely on Marshall and the story of how he outfoxed President Thomas Jefferson, his political rival, in Marbury v. Madison, the 1803 decision in which the court bestowed on itself the power of judicial review. Illustrating a television account of a prenewsreel era requires heavy reliance on static old prints and paintings, but the producers try to enliven the program with reenacted dramatizations of scenes like Jefferson’s inauguration, where Marshall administered the presidential oath of office.
The second hour traces the court’s history from the aftermath of the Civil War to Franklin Roosevelt’s New Deal in the 1930s. Three justices—John Marshall Harlan, Stephen J. Field and Oliver Wendell Holmes Jr.—serve as focal figures. The profusion of academics describing the justices’ jurisprudence, however, makes the show feel like undergraduate constitutional history as taught by a tag team of 15 different professors, none of whom speaks for longer than 90 seconds at a time. The program also features extensive footage of what’s presented as Holmes’ home library, including a memorable shot of what are depicted as his blood-stained Civil War uniforms. Many viewers might watch this segment and wonder where Holmes’ house is and what its visiting hours are. But this too is only a recreated dramatization. At the location of Holmes’ house, 1720 I St., N.W., in Washington, D.C., now stands only a bland office
The final two hours suffer from far more substantive shortcomings. The first, covering the 1940s through the 1960s, is disproportionately focused on Justice Hugo L. Black, a former Ku Klux Klansman and Alabama senator, who became one of the court’s most outspoken liberals in the 1950s. Chief Justice Earl Warren is portrayed as a decidedly secondary figure, and the Warren Court’s most widely praised jurist, John Marshall Harlan II—the grandson of the late 19th-century justice—is never even mentioned.
The late Chief Justice Rehnquist anchors the last hour. Some additional interviewees, including retired Justice Sandra Day O’Connor, USA Today reporter Joan Biskupic and A.E. Dick Howard of the University of Virginia, add verve, but this show too is occasionally troublesome. Misleading narration falsely suggests that Justice Harry A. Blackmun was undecided about his vote in Roe v.Wade until he received advice from his wife and daughters. Justice William J. Brennan Jr., whose role as Earl Warren’s most influential colleague is mentioned just once in the third hour, is featured as Rehnquist’s ideological opposite. The producers, however, allow a conservative former Reagan administration Justice Department official, Charles J. Cooper, to assert that Brennan as a single justice exerted “greater influence on domestic social policy than any president had had.” Biographers of Lyndon B. Johnson would surely challenge the accuracy of that description.
Cooper’s characterization of Brennan is mirrored by a closing comment from Larry D. Kramer of Stanford University, who calls the Supreme Court “a huge institution at the center of American politics.” That theme serves the producers’ grandiose aspirations, but more careful and measured scholars refrain from such easy exaggerations. In a landmark article in the Harvard Law Review this past November, Frederick Schauer of Harvard makes a powerfully persuasive argument that the Supreme Court is actually far less involved in the political issues that most concern Americans than critics of the court regularly claim.
Anyone who chooses to watch these shows must do so skeptically, and the four hours would be far better spent reading Jeffrey Rosen’s superbly well-written companion volume, likewise titled The Supreme Court. Rosen, a law professor at George Washington University who writes regularly for The New Republic, The Atlantic and The New York Times, is a far more trustworthy guide to the court than the TV documentarians. Rosen too focuses first on Marshall and Jefferson, then on Holmes and the elder Harlan, but he balances his treatment of the Warren Court justices far better than the TV program.
The most valuable parts of Rosen’s book concern the Rehnquist and Roberts courts. Rehnquist exemplified what Rosen identifies as the most desirable traits for a Supreme Court justice: “A pragmatic disposition, a degree of humility and common sense, and the ability to interact well in groups—these have proved over time to be more important qualities than academic brilliance or rigid philosophical consistency in determining a justice’s long-term influence.”
In stark contrast, Rosen identifies Justice Antonin Scalia as a present-day exemplar of undesirable judicial traits. When he joined the court in 1986, Scalia told C-SPAN that “judges ought to make an effort to avoid becoming public figures, because it’s not their personalities or their particular viewpoints that they are supposed to be promoting.” As Rosen highlights, Scalia has “ignored his own advice” and has repeatedly proven “unable to restrain himself from broadcasting his views on topics unrelated to his judicial duties. By repeatedly inserting his own
personality into public debate, he called his impartiality into question.”
Rosen also obtained an interview with Chief Justice Roberts. Asked about his 17 predecessors, Roberts answered that “certainly a solid majority of them have to be characterized as failures.” Roberts strongly criticized the issuance of fractured decisions, remarking that the court “over the past thirty years has been eroding, to some extent, the capital that Marshall built up” with unanimous rulings two centuries ago.
Roberts told Rosen that the court needs to “refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” Those are exceptionally strong public words from a sitting chief justice, but Roberts went on to speak of what he called “the failure in Bush v. Gore,” the controversial court ruling that decided the 2000 presidential election. “It’s a high priority to keep any kind of partisan divide out of the judiciary,” he said, and only time will tell whether Roberts’ own votes will live up to that standard.
Rosen observes that Roberts exhibits “a temperament that suggests he has many of the personal gifts and talents of the most successful justices” in the court’s history. Rosen may well be right, and his book is a wonderfully informative guide to the Supreme Court both past and present.