The Judicial Bookshelf

Abstract

The Judicial Bookshelf Donald Grier Stephenson Jr. (bio) Introduction: Supreme Court History as a Parade of Themes Of the hundreds of books about the Supreme Court published in the twentieth century, surely few have been more widely read and referenced than The American Supreme Court by Robert G. McCloskey, professor of government at Harvard University from 1946 until his death in 1969. First published in 1960 by the University of Chicago Press, this compact and elegantly written one-volume interpretive history of the Court has been updated now through six editions by McCloskey's student, Sanford Levinson of the University of Texas.1 The paragraph that concluded the Epilogue in the initial edition combined a historical overview with what appeared to be an admonition for the Warren Court, ironically just as it was on the eve of an even more activist phase. From 1789 to the Civil War, the Court labored to establish a reasoned argument for the cause of union. From the war to 1937 it performed a similar function on behalf of laissez faire. Toward the end of each of those periods, the judges overstepped the practical boundaries of judicial power and endangered the place they had earned in the American governmental system. Since 1937, the Court has striven to evolve a civil rights doctrine that will realize the promise of the American libertarian tradition, yet accord with the imperatives of political reality. Even when criticisms are duly acknowledged, the fact remains that the Court has contributed more to an understanding of this issue than any other agency in American life. It would be a pity if the judges, having done so much, should now once again forget the limits that their own history so compellingly prescribes.2 McCloskey's paragraph illustrates a common goal of many who write about the Court: Highlighting one or more themes that capture the essence of a period of judicial history. [End Page 113] Indeed, in fewer than 150 words, McCloskey pointed to at least four such themes, the last of which was hardly a surprise. As William Lasser observed some three decades later in the context of warnings against an overreach of judicial power, the theme of "weakness and vulnerability pervades the literature on the Supreme Court."3 This theme perhaps echoed the same "forbearance in the use of power" to which Paul Freund referred as he eulogized Justice Felix Frankfurter in 1965.4 The word forbearance itself is a reminder that the Court's work of deciding cases occurs in at least three dimensions as it may choose to allow, to direct, as well as to forbid. Yet in the context of deciding cases contemporary observers as well as someone decades hence might well choose to associate the words political or partisan as both a related and even an identifying theme for the Court of this part of the twenty-first century. That characterization, however, is hardly novel or even distinctive in that the label could also easily be applied to much of the Court's history. Indeed, scholars have long regarded the Court as political in numerous ways. Perhaps most obviously, the Court is political because its decisions shape public policy by deciding what government—national, state, or local—may or may not do. At least since the 1960s, for example, the Court has overseen operation of the criminal justice system to a degree never before experienced, from police-citizen encounters through punishment. Second, decisions clarify the boundaries of political authority, focusing less on what may be done than on who may do it or how it may be done. The Steel Seizure Case5 turned not on whether government could cope with labor disruptions but on whether President Truman in the executive order had exceeded his authority and intruded into Congress's law-making domain. The Legislative Veto case6 did not question government's authority to deport a particular individual but instead challenged the device by which Congress had mandated deportation. Third, the Court itself may become an issue in presidential elections, as has happened at least a dozen times since 1800 because of unpopular decisions. Quadrennial campaigns in the past four decades, for example, would have...