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Battles on the Bench

Conflict Inside the Supreme Court

Phillip J. Cooper

224 pages, 6 x 9
Cloth ISBN 978-0-7006-0737-2, $35.00
Paper ISBN 978-0-7006-0966-6, $16.95

Book Cover ImageThis is war we're fighting! Don't you understand? A war!

Felix Frankfurter's blustery depiction of debate within the Supreme Court suggests that combat sometimes supersedes collegiality in those hallowed halls. In fact, as Phillip Cooper shows, conflict is an inescapable fact of life in the Marble Temple.

Cooper peels back the calm, quiet public image of our judicial royalty to reveal their "family" feuds and squabbles. He shows that, whether motivated by deeply felt principle or by petty and vindictive impulses, these disputes dramatically shape the court's decision-making process, the justices' relations with one another, and the public's perception of the court.

Filled with wonderful vignettes and telling anecdotes, Battles on the Bench illuminates the court's legendary and little-known clashes from John Marshall to Ruth Ginsberg and helps us understand why they fight, how they fight, and why their fights matter. In the process, it reveals a long tradition of strategic flattery, cajolery, name-calling, threats, subterfuge, and sermonizing--all in an effort to win over or run over fellow justices.

Conflict in such high-stakes circumstances is hardly unexpected. But some of the court behavior is: Fred Vinson going after Frankfurter with a clenched fist and shouting that "no son of a bitch can ever say that to me!"; Frankfurter's dismissal of Justice Reed's intellect as "largely vegetable"; James McReynolds' undisguised anti-semitism toward Louis Brandeis; Antonin Scalia's harsh attacks on Sandra Day O'Connor; and William Rehnquist's sarcastic recital of a nursery rhyme and the "Star-Spangled Banner" before his startled brethren.

Cooper, however, makes clear that to a surprising degree these justices do find ways to work together. As Earl Warren noted, life on the Court is like a marriage-one can't tolerate it if it's one battle after another. Appointed for life and completely independent, these "nine scorpions in a bottle" are nevertheless compelled to furl their stingers from time to time--for no justice can prevail without the support of at least four others. Indeed, one of the toughest questions Cooper tries to answer is why they don't fight more often.

A rich treasure trove mined from the vast resources of judicial biography, Cooper's engaging study will be especially appealing to students and general readers with limited knowledge of the court's inner workings.

"A superb study of conflict in the Supreme Court. Cooper has produced a work that is in many ways seminal. He has also done an excellent job of classifying the nature, types, and consequences of conflict on the Court, illustrating each with amusing, touching, gripping, shocking, and at times profound anecdotes. Highly recommended."--Tinsley E. Yarbrough, author of John Marshall Harlan: Great Dissenter of the Warren Court and Mr. Justice Black and His Critics

"Cooper's book in some ways covers ground found in The Brethren but is superior to that book. He weaves a fascinating story and provides sound political analysis."--Sheldon Goldman, author of Constitutional Law and Supreme Court Decision Making

PHILLIP J. COOPER is Gund Professor of Liberal Arts at the University of Vermont. His books include The Supreme Court Inside Out, Hard Judicial Choices, and Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution.