The Supreme Court in the Current of Legal Thought

Abstract

The Supreme Court in the Current of Legal Thought Richard L. Aynes (bio) Bernard Schwartz. A History of the Supreme Court. New York: Oxford University Press, 1993. viii 465 pp. Bibliography, notes, appendix, list of cases, and index. $30.00. Bernard Schwartz. Main Currents in American Legal Thought. Durham, North Carolina: Carolina Academic Press, 1993. xv 660 pp. Table of cases, notes, and index. $49.94. Bernard Schwartz, the Chapman Distinguished Professor of Law at the University of Tulsa, has added two books to his already impressive record of publications. In History Schwartz’s goal is to provide a “good” one-volume history of the Supreme Court. Main Currents is designed to be the “legal counterpart” of V. L. Parrington’s Main Currents in American Thought (192730) (preface). Portions of the same text appear in both books. History begins with a brief summary of the background of judicial review and quickly moves to a chronological coverage of the Court from 1790 to 1992. This survey includes an account of the changing personnel of the Court and a survey of its major decisions. Within this chronology Schwartz selects four “watershed cases,” Dred Scott, Lochner v. New York, Brown v. Board, and Roe v. Wade, for extended treatment. Schwartz is at his best in the skillful way in which he places Lochner v. New York in context and his engaging account of the development of the decision in Roe v. Wade. Schwartz believes the Court must respond to “the felt necessities of the times” (p. 59). With this standard, it is not surprising that those portrayed in the most positive light include Chief Justice Marshall, Oliver Wendell Holmes, and Chief Justice Warren. Schwartz writes in what Randall Kennedy has called the “celebratory tradition.” 1 Schwartz faults Chief Justice Taney in Dred Scott for failing “to follow the doctrine of judicial self-restraint” (p. 106), but has no censure for Taney’s “presentism” in reading the more virulent racism of the 1850s back to the 1780s or his attempt to distort history considering citizenship. He treats Chief Justice Taney as a devotee of states rights without acknowledging that Taney was quite willing to use national power to support slavery. [End Page 290] Part of the reason Schwartz can “celebrate” the actions of the Court in the Reconstruction era is that Charles Fairman’s Reconstruction and Reunion (1971) is Schwartz’s most recent secondary source. Schwartz made no use of Eric Foner’s Reconstruction (1988) or the work of modern scholars like Akhil Amar, Michael Curtis, Paul Finkelman, or Robert Kaczorowski. 2 For example, Schwartz writes of “southerners” regaining “control over their own destiny” after reconstruction (p. 135), without acknowledging that if the white southern oligarchy in states like South Carolina and Mississippi regained control, it did so at the expense of the African-American majority which lost control of its destiny. A further illustration of this problem is Schwartz’s conclusion that after Taney’s death it would take over 50 years for “a man of true stature to be appointed Chief Justice” (p. 149). Salmon Chase is never going to be considered a “great” Chief Justice. But he was certainly a “man of stature.” To modern historians, Chase was “one of the formidable legal and political figures” of his lifetime, a “preeminent leader” and “a figure of immense proportions.” 3 Schwartz depreciates Chase’s law practice, ignoring Chase’s role as Solicitor for the United States Bank in Cincinnati (1834), his professional recognition, including compliments by Justice Story and Chancellor Kent, for his publication of “Chase’s Statutes,” his practice before the Supreme Court, and his role as the “principal architect” of the national legal strategy attacking slavery. 4 Similarly, Schwartz counsels against a “harsh” judgment on Plessy v. Ferguson because it “mirrored its own time and place” (p. 189). He does not consider the question of how Justice Harlan, living in that same time and place, could reach a contrary decision with such eloquence. Indeed, Schwartz ignores the majority’s disingenuous claim that segregation implied no inferiority and suggests that — notwithstanding Harlan’s example — it was impossible for the Court to “lift itself (by its own bootstraps as it were) above...