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f C H A P T E R 6 Conclusion The story of Justices Jackson, Frankfurter, Black, and Douglas is really three interrelated stories that affect our current understanding of the Court and its justices. One story is about the Court’s evolving civil rights jurisprudence , a jurisprudence that was born in the period that the four justices served together and that had its custody and direction shaped by the debates between the two factions that the four justices were divided into. It is the jurisprudence of unenumerated rights that shapes in signi‹cant part the way we live today. The second is about the justices themselves and the capacity each of them had to let bitterness, resentment, and intransigence prompt self-destructive contrariness. That it could happen to them means that it can happen to any of the current justices. The third is about the Court as an institution and its relation to the American public, a public that can ‹nd in the Court the paradox of inscrutability just beyond its public face. Knowing how the Court works is as important today as it was then. There are some contrasts worth noting between today’s Court and the Court of Jackson, Frankfurter, Black, and Douglas. In our age the Court is distinguished by an institutional anonymity, fashioned in part through justices who keep a low public pro‹le and in part through the bland, homogeneous , and voiceless prose of the law clerks who write the vast majority of the Court’s opinions. In contrast, not only did the individual justices of the group of four have their individual voices, which they expressed with their unsurpassed writing ability, the Court as well had a voice that shunned the institutional. The Court today seems incapable of fashioning the brief, pub165 lic-oriented opinions that distinguished some of the most important cases of the 1941–54 era. Moreover, the justices of that era were public ‹gures of a sort unknown by today’s standards. Several had held high public of‹ce before becoming justices, some were mentioned frequently for high public of‹ce while still on the Court, and a few engaged in highly visible extrajudicial activities, such as Justice Jackson’s prosecution of Nazi war criminals in the Nuremberg trials, that brought them attention off the Court. In contrast , today the justices come almost exclusively from the ranks of federal circuit court of appeals judges, where they are, by nature of that position, anything but well known to the public. The Court of the 1941–54 era featured human rather than institutional dimensions of judging, again in contrast to the Court of today. Its authority came not just from its institutional role but from the legitimacy each of the justices brought to the Court as individuals. As Justice Jackson wrote about the nature of the Supreme Court’s ultimate authority, “[w]e [on the Supreme Court] are not ‹nal because we are infallible, but we are infallible only because we are ‹nal.”1 That the 1941–54 era Court featured individuals rather than an institution brings into focus the fallibility of those individuals . What we learn about the relationship between personality, friendship, ideology, and judicial behavior helps explain the dynamics of the 1941–54 Court. It helps as well to enlighten us as to the tensions that make up any Court, including our own. Appreciating the human dimensions of the justices in turn helps us better understand the Court itself by revealing some of its secrets. Court chroniclers such as Michael Kammen have stressed the important point that, for all the public statements that the Court makes in the form of its opinions, the Court is in effect hidden from the view of the public because the judicial process is a secret one.2 Accountability and trust have been the function of what the Court says in its opinions. For those who want or need more, a look into the way a particular group of justices negotiated their own lives and their relations with their brethren, with the Court, and with the nation provides both the good and bad news that the Court as an institution works and that it is made up of only nine black-robed justices who are, despite or because of their best intentions, as human as the rest of us. Finally, a look behind the scenes tells us that we should consider the source of Court commentary and recognize that reputations, as in the case of...

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