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Rosen’s Crabbed View of Judicial Temperament

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4 Responses

  1. cosim says:

    With due respect, I feel that William O. Douglas has received some overly harsh treatment from those judging his jurisprudence.

    I must, therefore, question how much *more* guidance Justice Brennan’s majority opinions gave lower court judges and litigants’ lawyers as compared to those authored by Douglas.

    Douglas’s reference to penumbras and emanations is again ridiculed. But perhaps that mockery misses the point Douglas wanted to get across his readers, that each constitutional proposition taken with its counterparts stand for more than merely their mereological sum, that they make that sense against a certain background. Douglas inferred a right to privacy in that background.

    The criticism of Douglas’s thinking that the Constitution is more than merely its propositions is itself what’s more ridiculous. It’s taken for granted, for example, that readers of this blawg cannot be tried more than once for some the crime even though the pertinent constitutional provision speaks only to prosecutions involving amputation or execution (“life or limb”). Freedom of association is inferred quite ‘naturally’ from the constitutional text. The “police power” of the state is all of the time presumed. Freedom of speech covers artwork and non-vocal expression. The exclusionary rule is ‘derived’ from the constitutional propositions. Etc. But Douglas is ridiculed because he certainly appeared to care a good deal less about making his opinions look like the template. He is not a judge of the three-part, seven-factor balancing sort; I would submit that’s a good quality. Douglas seems, to this writer anyway, someone who decided constitutional cases as though they were common law cases; that’s not of necessity a bad thing. His approach was at a far remove from the more technocratic judging that’s nowadays prevalent on his court, which is no crime.

    Was Douglas significantly more predisposed to obscurantism than his colleague Brennan? What’s “actual malice”? Is that notion any less ridiculous than Douglas’s penumbras and emanations?

    The blog entry posited that Brennan shared Douglas’s political instincts. While there’s some overlap between the two, it’s rather clear that Brennan was a good deal more the establishment figure, methodologically definitely, but also ideologically. Douglas, for example, wanted to order the military to stop bombing Cambodia, a judicial exercise that his colleagues did not join him in. The judicial left in America – now as then – is not monolithic, in either style or substance. (Take a look at how many times the left on the Supreme Court has reversed opinions issued by Court of Appeals judges on the left on, say, the Second or Ninth Circuits.).

    Was, for example, Brennan’s reason for opposing capital punishment better than Douglas’s? The answer hints at one of the qualities that nonetheless made Brennan a good judge, I think. In terms of vision, Douglas has few equals (the first part of which frightens Jeffrey Rosen, it seems, and the second part comforts him); but Douglas’s love for people on paper was seemingly lost in many of his daily encounters. (As a not-so-aside, his great nemesis, Felix Frankfurter had an even more severe version of that disorder; perhaps it is something about the academic life…). Douglas’s disdain for the usual judicial method probably put many of his more ‘judicious’ colleagues ill at ease.

    By contrast, Brennan could put his political convictions into the customary judicial language, and on the level of human interaction, he seems to have been one of the all-time great judges. Being bright alone only gets one so far. Nonetheless, Douglas was something rather more than just a judicial lounge act.

  2. Nate Oman says:

    “Nonetheless, Douglas was something rather more than just a judicial lounge act.”

    But not much. It’s too bad really. He would have been a damn fine editor of the New Republic.

  3. Jason says:

    re: the last two comments. Point and counterpoint? Nope. Point and pithy substanceless tossaway line.

  4. Nate Oman says:

    “Point and pithy substanceless tossaway line.”

    Yup. I’ll take pithy…

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