by Anna Salvatore
Jeffrey Rosen is the President and CEO of the National Constitution Center. From 1992 to 2014, he was The New Republic‘s commentator on legal affairs. He is now a contributing editor at The Atlantic, where he published an article on Wednesday about the late Justice Stevens.
Since 2016, Mr. Rosen has also written two biographies of Supreme Court justices: Louis B. Brandeis: American Prophet and William Howard Taft: The American Presidents Series. Below, we discuss his writing process for these biographies, his most memorable reporting experience for The New Republic, and his clerkship for Judge Mikva on the D.C. Circuit. Our conversation took place in his office in Philadelphia.
My questions are in bold and marked with (Q), and his answers are in plain text.
(Q) Your office is filled with legal and historical books. Of the books that are here, which ones do you recommend most frequently to other people?
Let’s start with Madison’s writings. The Library of Congress edition has both his major Federalist Papers and the Virginia and Kentucky Resolutions. His “Advice to My Country” is amazing. The Colleen Sheehan book is also brilliant: James Madison and the Spirit of Republican Self-Government. And another one that really changed my thinking about Madison is Greg Weiner’s Madison’s Metronome, which is about the importance of slowing down deliberation, and how the whole Constitution was designed to create speed bumps and roadblocks so that mobs or factions couldn’t form quickly.
Last night, during the conversation with George Will, I mentioned the book in which I learned about the Founder’s conception of the unalienable right to conscience, and that’s Morton White’s Philosophy of the American Revolution. He quotes Scottish Enlightenment thinkers as defining what an unalienable right is, and how conscience is unalienable because our opinions are the product of involuntary thoughts presented to our reasoning minds. I can’t control my thoughts or opinions because they’re the product of external experiences interacting with my powers of reason. So I can’t surrender to you, or to anyone else, the ability to control my thoughts because, as a reasoning mind, I can’t entirely control them myself!
Of course, Eric Foner. You could start with Reconstruction and then move onto his shorter books. Sean Wilentz’s No Property in Man argues that Madison explicitly refused to take a position on whether the Constitution could create property in man, and when Frederick Douglass read Madison’s notes in 1840, it changed the way Douglass thought of himself as a citizen and a man.
I love Daniel Farber’s Lincoln’s Constitution because it shows what a precise lawyer Lincoln was, and how he suspended habeas corpus when he thought the emergency required it, but tried to remedy this by calling Congress into session as soon as possible after the emergency had passed.
(Q) I always like to begin by asking about people’s early years. What were your interests when you were my age?
I went to a wonderful high school in New York City — the Dalton School — and I had the most spectacular teachers. I feel like everything that I am, and all my love of history and English and music and art, came from this experience. I had magnificent English teachers, including Miss Hortense Tyroler, an elegant woman and brilliantly precise writer. She was a New Critic from the 1940s, with very beautiful handwriting, who taught me about the importance of close attention to the placement of every word. Michael Berthold, who went on to be one of my thesis advisers in college and now teaches at Villanova was another spectacular teacher of English and American literature. We had to write at least one paper a week, and his careful comments on each of them were wondrous to behold. He was the closest reader I’d ever had and it was a wonderful way of learning how to write.
I did a lot of theatre. I’m a ham. The culmination of our efforts was a performance of the musical “Oliver.” I was Fagin, and it was a lot of fun.
I was in student government and, as a senior, was the head of the high school government. At our school, the whole high school met in the theatre every week for voting and debate and discussion. I feel in some ways what I’m doing at the Constitution Center is very much like what I did in high school — moderating debates among engaged people about political and constitutional issues.
So I was very lucky and I just want to say again: it was the teachers who made all the difference.
(Q) Can you recall any specific lessons that your English teachers imparted to you? I’m curious about how you developed as a writer.
Mostly by writing a great deal – at least one English paper every week. And the topics of the papers were serious. I remember one paper about imagery in Shakespeare: there was a school of Shakespearian criticism at the time that would count every reference to eddies, waters, or flowers and would make interpretations about the word counts. I would go to the New York Society Library, which is a very old and elegant lending library on the weekends, and work there while I was in high school.
The teachers were extremely attentive to individual word choice, as I mentioned, and would mark up the papers with extreme thoughtfulness, care, and precision. It was like being line edited by a New Yorker editor, because they made sure that there was no fat in the writing. Their comments on the arguments were also rigorous and always improved the structure and clarity. Also the prose. I remember one paper where I used the word “facilitate,” and Michael Berthold said, “That’s a three-dollar, fancy, multisyllabic word. Why don’t you use something simpler like ‘ease’?” That was a Strunk-and-White-like early lesson and I’ve never forgotten it: don’t use three syllables when you can use one.
Then in college, I studied with the great scholar of Samuel Johnson, Walter Jackson Bate. His biography, the Life of Johnson, is one of the great literary biographies. Bate taught us how Johnson, and also Burke and other eighteenth century writers, used classical tropes like balance and antithesis and gradual expansion to create a sense of rhythm in language. So in college, I tried to write in a Johnsonian style and trying to create rhythm and balance. But then when I went on to be a journalist, I got the best advice about writing I ever got when a New Yorker editor told me, “write it like you’re telling it to someone over dinner.” That was a much more conversational approach, and it freed me up to communicate as freely as possible. My goal in writing today is just to connect and communicate and express whatever I have to express as clearly and directly as possible.
(Q) I wonder how much your oratory practice helped you mentally articulate your thoughts before committing them to paper.
Yes. Eleanor Roosevelt’s advice about public speaking was “have something to say, say it, and sit down.” And you do have to have something to say. But you don’t want to be too formulaic, and you have to open yourself up to the flow of whatever light comes in. In the discussion with George Will last night, I didn’t have a rigid list of questions in advance because you never know where the conversation is going to go. You do have to read the book. And after reading the book, you have broad categories to ask about, without knowing exactly what would emerge from the conversation.
The goal is always to let the author speak for him or herself. Try to ask questions — not gotcha questions — to let everyone you’re interviewing make his or her arguments as fully as possible, and then if you want to challenge or follow-up, you can do that. Stay very present, completely in the moment, listening closely, and be flexible enough to let the conversation go wherever it goes.
(Q) Are there any questions that you’ve developed over the years that tend to yield surprising or revealing answers?
No, there’s not one rosebud question that opens things up. Of course, you can get people to talk very happily by asking them about themselves. Especially about their childhood, which everyone cares a lot about but isn’t often asked about. That’s a good way to get people to open up. I did a panel at Berkeley Law School the day before yesterday, and Michael Lewis interviewed the first panel. He asked the judges, “You were kids first. How does someone want to become a judge?” It was a great question and got them going.
Generally, my goal as a journalist — and I still think of myself as a journalist, because that’s what I did for most of my career — is to ask questions that will allow people to talk about themselves in a way that they feel most comfortable.
(Q) That’s a great segue into your New Republic years. On the magazine’s website, I found a piece of yours called “Like Race, Like Gender” from 1996. You had traveled to the Virginia Military Institute soon before Virginia v. United States was decided. Could you talk about that reporting experience and what you took away from it?
I’m glad you found that piece, because that was one of the New Republic pieces that I learned the most from. Beforehand, I had never really done a lot of reporting about Supreme Court cases; I was sitting in my office and opining, which is much less interesting. So I rented a car and went out not only to see VMI, but V-WIL, which was the Virginia Women’s Institute for Leadership. That was the brief, supposedly separate but equal college that was created in a Victorian spirit to avoid the Supreme Court striking down VMI, and it failed to convince the Court.
I was there for a brief moment while these two parallel institutions existed, one for men and the other for women, and it was fascinating to see the Jeremy Bentham-like reality of VMI, with its Panoptical inspection tower. It was also a privilege to meet Josiah Bunting III, the scholarly Superintendant, and to talk with him him sit in his office overlooking the playing fields of VMI. I asked him, “How do you feel about the fact that the Supreme Court might strike this down?” He said, “It’s like the Adagio section of Mahler’s Fifth — there’s a sense of wistfulness.” He was glorious.
The story was great because it was surprising. I thought VMI was going to be like West Point or an extremely militarized academy, but it was much more like something out of Tom Brown’s School Days. I sat in a poetry class and watched boys — some from disadvantaged families — talking about their families and reading Walt Whitman. As General Bunting put it, the school was for kids who didn’t fit in in other places. It completely shattered the stereotypes that I had going in, and it gave me a window into an institution that was about to change — for the better, as it turns out. As Justice Ginsburg said, ‘Boys will be boys. They’ll get used to it.’ And they did. But I think it taught me the importance of reporting, of interviewing people and talking to them rather than just reading and opining.
These long, reported pieces were the most satisfying journalism I did. They took a long time, and they were harder than book-writing.
(Q) Why were reported pieces harder?
You have to pick a topic that’s of broad general interest and publish the piece at precisely the right moment, after lots of reporting and research. I also used to struggle over each sentence more. If you view the writing as expressing what you have that’s inside of you, then it comes much more easily.
One of my favorite book experiences was my biography of William Howard Taft. I had the whole thing outlined, and I had done the reading — but I woke up and it just flowed out. My latest book, Conversations with RBG, was also a great pleasure to write: it was a labor of love to collect our interviews over the years and to organize them by topic. Justice Ginsburg is a personal and constitutional hero and I’m thrilled that the book will be out in November.
I like writing short books on really tight deadlines, and fear is a great motivating factor. Four of my books –RBG, Taft, Brandeis and The Supreme Court book, were on six-month deadlines, and it was a chapter a month for six months. You don’t have any time to fuss — you have to get it out, you do your writing every day, and then it’s done. The tight deadlines really help to focus the mind.
(Q) A major part of the writing process is selection, and I imagine this is especially true of short books. Were there any details about Taft or Brandeis’s life that you wanted to include, but deleted to preserve the short book length?
(A) No. Short is always good, and the discipline of cutting is good. My Taft book was longer — it was something like 60,000 words in the first draft, and I cut it down to around 49,000. The journalist Jessica Mitford said you should murder your darlings, and I think no book has ever suffered from being shorter.
Another editor told me that there should be something memorable on every page. And I agree that every sentence should tell. There should be no fat. If you don’t understand a sentence in the book, it’s often a sign that the author isn’t clear about what he or she was trying to say. That’s why I think, even in academic writing, it’s important to write clearly and not to hide behind abstractions.
(Q) Shifting gears a little bit: If you could interview anyone who doesn’t necessarily have to be alive or in the law, who would it be and why?
There’s someone who eluded me for a long time, but I fulfilled my dream of interviewing him just a few years ago — and that was Tom Lehrer. He was a satirist from the 1960s whom I loved as a kid. He wrote wonderful songs ranging from “The Elements,” which sets the periodic table to the tune of the “Modern Major General” song from Gilbert and Sullivan, to songs about Hubert Humphrey and civil rights to Wernher Von Braun, the German scientist. I loved his songs ever since I was in high school and always wanted to meet him. He refused to meet me as a journalist. Then a friend of mine, who knew him, interceded and he agreed to meet as a fellow musical theater fan. So we talked about Gilbert and Sullivan and musical theatre for four hours. It was the most wonderful conversation I could possibly imagine.
Beyond that, the C-Span team was here the other day for a program we did together around the C-SPAN book on the presidents. Brian Lamb, the great interviewer and founder of C-Span, asked each of us which presidents would you have for dinner. I said Madison, of course, because it would be so superb to talk with him about the Constitution.
Someone have picked Theodore Roosevelt. But Theodore Roosevelt would not have been a good dinner companion, as Stephen Budiansky relates in his great new book about Oliver Wendell Holmes. Holmes’s wife, Fannie Holmes, said to someone who just had dinner with Theodore Roosevelt: “Here’s what happened. The President wanted to talk to you more than anyone else, and wanted your advice about politics in New York. He spent the whole evening fixed on you, and you felt like you were the only person in the room.” The person said, “My goodness, Mrs. Holmes. It’s as if you were in the room!” She’d basically seen him do this number a bunch of times. That suggested to me that Roosevelt had a shtick that he would use to win people over.
(Q) Before we finish, I’d love to talk about your clerkship with Judge Mikva on the D.C. Circuit. Did you have any epiphanies about areas of the law you liked — maybe Fourth Amendment law — or didn’t like?
I did, actually, and it was that. [laughs] The D.C. Circuit has two big categories of cases: criminal procedure cases and administrative law cases. I really liked the criminal procedure cases, and I was not detail-oriented enough to be good at the administrative law cases. The administrative cases involved most notoriously the Federal Energy Regulatory Commission, or FERC, and there was nothing more terrifying than a FERC case because they had huge appendices and were incredibly fact-specific. My co-clerk, Julius Genachowski, went on to become head of the Federal Communications Commission. We had a system. There was a really delicious muffin place near my house, and I would bring Julius warm muffins in exchange for trading the FERC cases for the criminal procedure cases. It was great because they were still warm by the time you got to Judiciary Square. I wrote the crim pro cases and he wrote the FERC ones, and he did a much better job.
(Q) Judge Mikva was a Congressman before he became a judge, meaning that he probably had some interesting things to say about statutory interpretation and whether to use legislative history. What he did teach you in that area?
Judge Mikva was a great man. He served in Congress, he was Chief Judge of the D.C. Circuit, and then he went on to be White House counsel under President Clinton, so he was in all three branches of government. He had such a practical understanding of government. When he ran for Congress in the Jewish neighborhoods in Chicago, his slogan was, “Mikva stands for clean government.” Those who are Orthodox Jews understand that a mikvah is a ritual bath that women take for purification. Famously when he was starting off in Chicago politics, he went to see a Chicago boss. The guy said, “Who sent you?” Mikva said, “Nobody.” And the guy said, “We don’t want nobody nobody sent.”
On the appellate court, Judge Mikva very much believed in the importance of legislative history and had nothing but impatience for those like Justice Scalia who insisted that only the text should rule. He thought that committee reports did reflect what Congresspeople thought about, and said that the purpose of statutory interpretation was to express what Congress intended, and therefore you should look at whatever evidence might be useful without any of it being dispositive. Robert Katzmann, the Chief Judge of the 2nd Circuit, channelled those arguments in his really good book, Statutory Interpretation.
Other interviews conducted by Anna Salvatore: Michigan Supreme Court Justice Elizabeth Clement, University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, legal journalist Chris Geidner, SCOTUSblog founder Tom Goldstein, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Congressman Jamie Raskin, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, BU Law professor Jay Wexler, and Lawfare editor-in-chief Benjamin Wittes.