No sooner do I drop a rare Wiley Rutledge reference (in "Guantanamo") than out pops a biography of the last justice appointed by Franklin Delano Roosevelt, reviewed in the Washington Post here.
Justice John Paul Stevens, 84, who leads the Court in age, clerked for him. Rehnquist clerked for Justice Robert Jackson, another FDR appointment. John Marshall Harlan was the grandson of John Harlan.
Do you ever get the impression that if you want to be a Supreme Court justice you must ask your parents, well in advance, to name you Marshall or Harlan, or line you up with a clerkship?
Rutledge, is the thinking man's justice according to this review. I must read the book, even at $39.95, which seems like a lot for a book about a Supreme Court justice.
I wouldn't pay that much for a Mickey Mantle bio and I did all I could to emulate him, except I couldn't hit the fastball OR the curve. And I suppose you know by now that Boston won the World Series four straight against the St. Louis Cardinals, coming back four straight from three down against God's own New York Yankees in the pennant race. The world is truly upside down.
What makes a good justice bio worth reading, and maybe even paying for, is that if it's really well-done you get a jump start on your Con-Law education as you read how the justice came to vote the way he did on the landmark cases, how he interacted with the other quarreling justices, etc.
"Nine scorpions in a bottle," someone called them, Holmes probably, not a bad scorpion himself. Holmes once said he didn't mind law students criticizing his opinions, but it really ticked him off when they told him in the law reviews that he was right. I can see that.
Other good bios include those of John Marshall, both Beveridge and Jean Smith, Justice Hugo Black, William O. Douglas, Lewis Powell, and Byron White. One of the best Con-Law bios is about Learned Hand of the Second Circuit, by Gerald Gunther, his clerk, who wrote the book on Con-Law and taught at Stanford for many years.
Justice Sandra Day O'Connor has two books, the vivid "Lazy B" about her experience growing up as a cowgirl on her parents' ranch out in the Wild West and "The Majesty of the Law," whose title belies the liveliness of its contents.
Lucas Powe of the U. of Texas Law School faculty has written a rich history of the Warren Court that will fill you in on a great many landmark cases, year by year.
One of the eye-opening things one learns from reading others' takes on cases is that while you recall a case as standing for one thing, another expert finds a wholly new value in it. Result, you've expanded your education for the price of a book, a possibly stolen book.
When I was in law school, the New York Times v. Sullivan case came down during the Civil Rights Movement, 1964. We all regarded it as a victory for civil rights. No longer could public officials in the South win big libel judgments from redneck juries against the liberal New York press just because they innocently screwed up yet again. Innocent mistakes were allowed. The cost of a free press. The Bible, make that the NYT, could now publish with impunity and hold the segregationists' feet to the civil rights fire.
NYT v. Sullivan did so, of course, by changing the rules of libel, adding a malice element to defamation, and giving a new definition to 'malice:' knowledge that you were publishing lies about public officials or not caring. We all saw that.
But the significance of this as defamation doctrine took awhile to develop as new cases came up.
Justice O'Connor, in Majesty, refers to NYT v. Sullivan for a proposition that was there, of course, and should have been noticed by all, but which I certainly missed in so many words, when she says this is the case that guarantees you the right to criticize public officials with impunity.
I'd always assumed that I could do that under the First Amendment, but I couldn't have cited you a case (I guess there wasn't one) until Justice O'Connor handed it to me on a silver platter, for which I thank you kindly, Ma'am.
So, as to the costly Rutledge bio, to quote Abbie Hoffman of Chicago Seven fame, Steal this book. Or buy it. Not necessarily in that order.
Here's the W-Post review, another thinking person's newspaper, and I thank them:
The Thinking Man's Justice
By Cliff Sloan,
vice president of business development and general counsel of washingtonpost.Newsweek Interactive, and a former law clerk to Supreme Court Justice John Paul Stevens
Wednesday, October 27, 2004; Page C02
SALT OF THE EARTH, CONSCIENCE OF THE COURT
The Story of Justice Wiley Rutledge
By John M. Ferren
Univ. of North Carolina. 577 pp. $39.95
Wiley Rutledge may be our most interesting forgotten Supreme Court justice. He served on the court for a mere six years, from 1943 to 1949, before a sudden death at 55. Despite his brief tenure, he contributed a powerful voice on civil liberties, defendants' rights, and race and gender discrimination. Most distinctively, he is a thinking person's justice whose comprehensive opinions, whether one agrees with them or not, are the work of a serious mind. They frequently have framed the terms of debate for decades.
John Ferren, a senior judge on the D.C. Court of Appeals, has written a compelling biography, bringing to life the often-overlooked Rutledge, as well as the court and times in which he labored.
Every Supreme Court appointment has its own alchemy, and no justice might have seemed more unlikely than Rutledge. Born in 1894 in Kentucky, he worked his way through law school as a high school teacher, returned to law school as a professor and ultimately became law school dean at Washington University in St. Louis and the University of Iowa. During his academic years, Rutledge plunged into public policy issues, particularly as the Supreme Court struck down key parts of the New Deal. He supported a constitutional amendment permitting the regulation of child labor and emerged as one of the few legal leaders defending Franklin Roosevelt's court-packing plan.
After battling a hostile court, FDR suddenly had the chance to fill eight vacancies within a six-year period when many justices retired or died. Irving Brant, an influential New Deal supporter and editorial writer in St. Louis who had FDR's ear and who knew Rutledge, touted the Iowa dean for the court. Roosevelt appointed him to the D.C. Court of Appeals in 1939 and then, in 1943, made Rutledge his final appointment to the Supreme Court. In an era when geographic balance was prized, Roosevelt told Rutledge, "Wiley, you have a lot of geography."
The court that Rutledge joined overwhelmingly rejected the judicial imperialism that had invalidated broad swaths of legislation, but it was deeply fractured by personal and ideological feuds. Felix Frankfurter and William O. Douglas shared an abiding mutual contempt; Hugo Black and Robert H. Jackson bitterly denounced each other. Rutledge was a soothing force in this caldron of personalities. A gregarious man, he managed good relations with all of the justices. He became particularly close with Frank Murphy, another Roosevelt appointee, who died just weeks before Rutledge.
As Ferren recounts, Rutledge's opinions, particularly his concurrences and dissents, generated a lasting impact. His pathbreaking positions in favor of civil rights, a high wall between church and state, broad First Amendment rights, and defendants' rights became classics and often carried the day in later years. In an opinion of particular interest today, he vigorously dissented from a decision upholding a military tribunal convicting and executing Japanese Gen. Tomoyuki Yamashita. (A major stain on Rutledge's record, however, is his surprising vote to join five other justices to uphold the internment of Japanese American civilians in the infamous Korematsu case.)
His leadership extended off the bench. In a remarkable speech on women's rights in 1948, he objected that women do not receive "equal pay for equal work."
Although Rutledge's positions are readily pigeonholed as "liberal," the real hallmark of his opinions is their intellectual heft. Ironically, Ferren maintains that Rutledge's exhaustiveness limited his effect on his colleagues. Justices urged him to drop sections of opinions, and Ferren suggests that the length and complexity of Rutledge's decisions produced "impatience" in other justices. But it is precisely the depth of analysis, including careful attention to the facts of each case and an aversion to sweeping generalizations, that has given Rutledge's opinions a more enduring impact than, for example, the peremptory opinions of the far better-known William Douglas. Ferren emphasizes that Rutledge "forced his colleagues to think" -- a compliment of the highest order, and a statement equally true for any reader today.
Rutledge's habit of mind had a profound impact on one of his clerks, Justice John Paul Stevens. As a Stevens clerk, I knew that a Rutledge opinion carried special weight with the justice -- not from sentimentality but because it reflected a quality of thought and reason that he highly valued. As Washington Post reporter Charles Lane revealed in an article earlier this year, Stevens's analysis in the recent Guantanamo Bay case drew heavily on his work with Rutledge on a 1948 dissent.
Ferren's biography is first-rate. It is prodigiously researched and includes the fruits of some 160 interviews. The book is marred by an occasional indulgence in cliche (as the title indicates) and an overabundance of detail (in unconscious emulation of Rutledge?), particularly in the early chapters. But these are minor flaws in an admirable work. Ferren has made an important contribution in reclaiming the lost life of an outstanding justice.