For nearly half a century, the copy of Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955 has been sitting half-read on my bookshelf. [1] I discovered this fact when I began reading it for his blog and realized it had my college underlining and margin notes in portions of the book.) As I started rereading the book, I was struck by two things that influenced my reaction.
The book suffers from excessive bias. Rodell openly admits he’s a political liberal. He does not recognize that this bias could make him unfair to many figures. Rodell judges the justices of the court and their decisions by only one standard: whether that judge or decision reflects his personal commitment to political liberalism, which we sometimes mistakenly call “progressivism.” (Presumably, all judges, liberal or conservative, believe they are trying to help society move forward toward a better future for others.)
The book also suffers from an unacknowledged subtext. Rodell also fails to acknowledge his reliance on the work of Charles Beard, particularly his influential book titled “An Economic Interpretation of the Constitution of the United States” (1913). In his most renowned work, Beard proposed an economic theory of the Constitution, arguing that it primarily reflects the Founding Fathers’ personal economic interests. Throughout his other works, Beard consistently reinforced his belief in the significant influence of financial interests on governmental actions, reflecting the influence of Marx on this thinking.
Rodell saw himself as part of the legal realism school, which believes that laws and judges’ opinions stem from the economic and social interests of those in power, including judges themselves. This perspective suggests that judges don’t just follow abstract rules but also take into account social interests and public policies when they decide cases. For legal realists, laws are shaped by the social conditions and the needs of people at the time. A notable early example of this approach is the Brandeis Brief, which used socioeconomic data and scientific evidence to help make legal decisions.
These commitments sometimes lead Rodell and others to overlook the deep philosophical and moral beliefs that motivate leaders, especially those with whom he disagrees. For example, it’s well known that Madison carefully studied numerous historical works on political philosophy and practice while preparing for the Constitutional Convention. His primary goal was to create the most effective government, guided by the ideas of the leading thinkers of his time. Although his social class and economic interests may have influenced him, they were not the only factors.
Unfortunately, the fundamental problems outlined above weaken Nine Men and diminish its many virtues. Rodell consistently appeals to the class and economic interests of the founders and the judges of the court, almost ignoring the positive philosophical and moral commitments that underpin the work of many judges, even though he disagrees with them. He is often petty and demeaning in his critique of their work. One of my favorite law school professors, and the leading expert of his time on federal procedure, referred to Rodell as the “bad boy” of legal scholarship. His assessment is, sadly, accurate.
Despite its weaknesses, the book remains a classic on constitutional law. Most notably, it is readable and concise. In just over 300 pages, it summarizes the history of the court from its inception to the start of the Warren Court. If readers take away anything from this brief review, I hope it will be a twofold suspicion towards two aspects of what is sometimes called “progressive legal theory”:
- Legal reductive nominalism in which words like “justice,” “reasonableness,” and “public interest” are merely names we place on ideas and actions we approve of.
- The assumption that liberal political ideas are the only positive response to the problems of modern society needs to be questioned, and most people need to be constantly vigilant in recognizing this in much of the journalism and scholarship.
Powerful, Irresponsible, and Human
Rodell sees the drafting, approval, and interpretation of the Constitution as inherently political, mainly influenced by the self-interest of its founders. Likewise, he views the U.S. Supreme Court as mainly a political instrument, but he doesn’t fully acknowledge its specific role within the constitutional process. He describes the Court as powerful, often irresponsible, and motivated by human emotions. He also tends to minimize or criticize the key ways the Court manages its docket—such as its ability to decline hearing certain cases, avoid cases that aren’t ready for decision, refuse to give advisory opinions, and limit decisions to the specifics of a case.[2]
Throughout all of this, Rodell seems to miss an important point. While the court is a powerful institution, its abilities are bound by Article 3 of the Constitution. Just like any other human institution, it is appointed for life, has protections, and can sometimes act irresponsibly. But the purpose of its powers is to allow it to act responsibly. Looking at history, the court has generally acted responsibly more often than irresponsibly. And at the end of the day, the court is made up of human beings. It’s interesting that this might seem like such an obvious observation. Of course, the court is human. Naturally, many different men and women with diverse political and social perspectives have served on the court. And yes, the court functions as a human institution, providing justice to people. I really don’t think any of that should be seen as problematic. What’s unfortunate is that Rodell tends to go on rants—and quite often, they’re irresponsible ones.
From A Gleam in the Founders’ Eyes: Marbury v Madison
No book on constitutional law is complete without discussing Marbury v. Madison.[3] I’ve sat in more than one classroom studying the case. It’s interesting how often people blithely state that Chief Justice Marshall invented judicial review. As I read the Constitution and the Federalist Papers, it’s clear that most of the founders assumed, to some degree, that the Supreme Court would be able to declare laws unconstitutional. In Federalist 78, Hamilton defends the principle at length. [4]
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[5]
Madison, who was perhaps the most important drafter of the Constitution, is a notable example. He clearly understood that the courts would and should have the power of review. In his own contribution to the Federalist Papers, he concludes:
It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.[6]
Although Madison was most interested in the national government’s power to declare state actions unconstitutional, this provision shows that important drafters of the Constitution anticipated judicial review.
Despite claims of judicial innovation, as Marshall puts it in Marbury v Madison, the principles on which courts base their disregard of statutes they find unconstitutional were “long and well established” prior to that case. In his decision, Marshall puts it:
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.[7]
He goes on to say:
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.[8]
The founders intended for the Supreme Court to have the power of judicial review, and one implication is that the courts could not enforce laws passed by Congress or the states that violate the written Constitution. In other words, such laws would have to be declared unconstitutional.
This directly contradicts Rodell’s claim that the Supreme Court was meant to be a supremely powerful, anti-democratic institution. Quite the opposite, it was the duty of the Supreme Court and lower federal courts to uphold the laws of the land, especially the Constitution. Moreover, this duty would have to be carried out even when the country’s majority opinion was mistaken. The founders trusted that, over time, the best interpretation would win out, either by the Court changing its mind or by the enactment of an Amendment that would clarify the founders’ intent and the public’s desires.
Dred Scott and the Road to War
If John Marshall is to be celebrated as the greatest of our Chief Justices, his successor, Roger Taney, is almost unanimously considered the worst. As Rodell points out, this is unfortunate because it rests on a single terrible decision. If there is any decision that can be said to have divided the country and created serious political instability, Dred Scott v. Sanford is it.[9]
It is hard to understand the Dred Scott decision without understanding the problem it was designed to solve. It is well known that the Constitution acknowledges the existence of slavery. It was necessary to recognize its existence and allow it to continue for the southern states to agree to ratify the Constitution. Privately, many members of the Constitutional Convention, including Washington, Jefferson, and Madison, southerners and slave owners, believed the institution to be evil and that it needed to disappear in time.
Unfortunately, after the adoption of the Constitution, the existence of slavery became a source of national conflict. In the North, where there were few slaves, the entire institution of slavery was seen as unworkable. In the South, many wealthy individuals owned substantial amounts of property and invested heavily in slaves. In the North, a powerful abolitionist movement emerged. In the South, a strong, proslavery movement grew.
Throughout this period, Congress repeatedly sought a solution to the problem. The most significant event related to the Dred Scott decision is the Missouri Compromise of 1820, which admitted new states and drew a line at 36°30′ latitude, prohibiting slavery north of that line. Then, in 1854, Congress passed the Kansas-Nebraska Act, which repealed the Missouri Compromise, organized new territories, and allowed settlers to decide whether these territories would permit slavery or remain free.
Amid this toxic situation, the Dred Scott case came before the court. Dred Scott had been a slave in Missouri. Then, from 1833 to 1843, he lived in Illinois (a free state) and in the Louisiana Territory, where the Missouri Compromise forbade slavery. After returning to Missouri, Scott filed suit in a Missouri court for his freedom, claiming that his residence in free territory made him a free man. After losing in the state court, Scott brought a new suit in federal court. Scott’s master maintained that no “negro” or descendant of slaves could be a citizen in the sense of Article III of the Constitution. Eventually, the case reached the United States Supreme Court.
On March 6, 1857, Chief Justice Roger B. Taney delivered the Court’s opinion, ruling that enslaved people were not citizens of the United States and, therefore, not protected by federal law. This decision alone would have been enough to incite strong feelings in the North. However, the opinion also declared the Missouri Compromise unconstitutional, stripping Congress of the power to set the boundaries of slavery. Additionally, it overturned the Kansas-Nebraska Act, leaving Congress without authority to prohibit slavery in a federal territory.
While it is possible that Chief Justice Tawney and the Court believed they were removing the issue of slavery from the national debate, the result virtually guaranteed the Civil War. The decision clearly held that Congress could not restrict the growth of slavery or create a popular sovereignty that would prevent it from expanding in the northern part of the country, or, frankly, that the institution of slavery could not be profitable.
Dred Scott really shows how the Supreme Court can sometimes create division and challenges to national unity, especially when the idea of a “government of laws, not of men” is at stake. Instead of providing clarity, the decision was “overly broad” and closed off many options lawmakers could have pursued. It’s an example of judicial overreach, which can and does have serious consequences. Dred Scott should remind all courts of the potential harm when they overreach and try to address political issues best left to Congress and the Executive Branch.
Conclusion
Having covered about one-half of Nine Men, next week I will discuss another early case in which the Court overstepped its bounds and harmed the institution. In that particular case, an Amendment to the Constitution was passed to overturn the decision. In the case of Dred Scott, thousands of lives were lost, and the nation was divided, before the decision was overturned. It is a lesson to judges and citizens alike of the dangers of judicial overreach and the politics of deadlock, both which we see today.
Copyright 2026, G. Christopher Scruggs, All Rights Reserved
[1] Fred Rodell, Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955 (New York: Random House, 1955).
[2] Id, Chapter 1.
[3] Marbury v. Madison 5 US 1, Cranch 137 137 (1803).
[4] Hamilton, Federalist Papers, No. 78.
[5] Id.
[6] Madison, Federalist Papers, No. 39.
[7] Marbury Madison, supra at 178.
[8] Id.
[9] Dred Scott v. Sanford 60 U.S. 393 (1857).