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BOOK REVIEW The Wizards of Washington There is irony and double entendre in the title of Al Knight’s1 new book, The Wizards of Washington, but, no, it is not a tell-all about the NBA team or a Harry Potter follow-on. Wizards is a provocative, critical history of the United States Supreme Court and of the Justices who, for better or worse, have made it what is was — and what it has become. The book’s richly illustrated thesis is that, in the final analysis, the law-making of the Supreme Court justices amounts to nothing more than the expression of intensely human “biases and beliefs of people who, except for their office, have no special claim on wisdom,” but who are, nonetheless and sometimes troublingly, “the main architects of American social and political policy.” Part I tells the story of how, “despite some serious errors in selecting its personnel,” the weakest branch of government, created almost as an afterthought by the founding fathers, became perhaps the strongest branch. The court gave itself supremacy over the legislative branch with its mythic 1803 decision in Marbury v. Madison, and still today the American public, no matter that it might disagree with a Supreme Court decision, is willing to accept the decision as the law, at least for the time-being. Case in point: Bush v. Gore. Over the years, presidents have appointed some truly great justices to the Supreme Court, like John Marshall. They have also managed to appoint — Al Knight is not one to mince words — “[q]uite a few hacks, and perhaps some fools.” Justice Alfred (No-Show) Moore takes the prize for worst justice ever. In his five years on the court (1799-1804), he wrote only one opinion, totaling all of one page, and distinguished himself by being totally absent for the decision in Marbury. Justice James McReynolds is a close runner-up for worst justice, but not for lack of a work ethic. A Vanderbilt undergraduate, McReynolds practiced law in Nashville and taught commercial law at Vanderbilt before his appointment to the Supreme Court. He was highly intelligent, but “breathtakingly reactionary” and “flauntingly disagreeable.” He despised many things, including red nail polish, athletics, women lawyers, and “un-Americans.” Anti-Semitism seems to have been his special passion. During his tenure on the court (1914-1941) he refused to speak to, travel with, or sit near his Jewish colleagues, Justices Brandeis and Cardozo. Part II provides penetrating insight into the court’s triumphs and travesties. Here, by culling representative cases and characters, Knight adroitly chronicles the early, golden years of the court when it served as unifier of the nation and giver of natural law and when the justices acted as Philosopher Kings. He also tells of the tarnished years of Dred Scott, the Darwinist Lochner era, and the prima donna brilliance of the 1940s and 1950s when Justices Black, Frankfurter and Douglas held court and the court at last held (Brown v. Board of Education) that racial segregation is intolerable. Finally come stories of the Warren years, the Burger years, the Rehnquist years, all trending toward what the author sees as the slow but sure surrender of the court’s once awesome, mythic authority. Part III — the future of the Supreme Court and its Wizards — has yet to be written, but Knight is not optimistic that the court is headed toward a return to its glory days. The great Supreme Court decisions of the past were those that were broadly formulated and that rested on the strength of constitutional principles. Today’s court, Knight points out, tends to limit its rulings to the specific facts of each case — Bush v. Gore being a chief example. Because such “minimalist” rulings are merely an exercise of personal power, not an exercise in applying the law, they threaten to undermine America’s trust in the judicial system. Today’s opinions are not based on broad, clear decisional principle. They are mushy. They are factionalized. They are fractious. They are sometimes incoherent. Too often they are merely legislation, announcing laws, but not pronouncing constitutional policy. Missing from today’s opinions are the “mature coherence and an occasional poetically expressed truth” so necessary to truly important, great opinions. Making matters worse is the “court’s dirty little secret”: most of its opinions are now being written by law clerks who lack the life experience and the level of eloquence needed to convey important constitutional principles. Their opinions, obscured by legal jargon and footnotes crammed with arcana, are interminable. But then, “[t]he advantage of a long opinion is that it is very difficult to see how it failed to reach the right result, because one gets lost in the words.”[1] The Wizards of Washington certainly does not suffer from any of these problems. To the contrary. It is accessible, coherent, lucid. It is philosophical. It is trenchant. It is eloquent. • • • ALFRED H. KNIGHT is a partner in the Nashville law firm of Willis and Knight. His previous (1999), award-winning book, Life of the Law, is a lively and engaging introduction to the evolution of Anglo-American law from Runnymede to Rodney King. • • • Notes
• • • ANDRéE SOPHIA BLUMSTEIN is a partner at Sherrard & Roe PLC, in Nashville and chair of the Tennessee Bar Journal Editorial Board. Tennessee Bar Journal
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