In Retrospect:Landmark Law Cases in American Society Eric Rauchway (bio) The University Press of Kansas series, "Landmark Law Cases and American Society," edited by Peter Charles Hoffer and N. E. H. Hull, puts its authors in a potentially awkward position. Any case that qualifies as a "landmark case," with an obvious and vital connection to American society, is going to be what Justice Oliver Wendell Holmes, Jr., called a "great case." The series therefore risks focusing on what Holmes called "bad law. Great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."1 To the non-lawyer, this prospect comes as something of a relief. Bad law is the stuff of good political and social history.2 And for the most part, the "Landmark Law Cases" authors de-emphasize jurisprudence and err on the side of showing us and our students how great cases entail moral, social, and political conflict. In the main, the series treats judges, especially the justices of the United States Supreme Court, as a special breed of political actors, in keeping with the explanation of the Court's role offered in Thurman Arnold's 1937 Folklore of Capitalism: the Supreme Court was the greatest unifying symbol in American government. Here was the one body which could still the constant debate, and represent to the country the ideal of government of fundamental principles. On this Court the whole idea of a government of laws and not of the competing opinions of men appeared to depend. Here only was there a breathing spell from the continual din of arguments about governmental philosophy which were never settled.3 So high had the Justices climbed in the American civic pantheon that, in the same year, Franklin D. Roosevelt caused a reasonably genuine scandal when he proposed augmenting the Court for political reasons—a scandal that stood in stark contrast to the equanimity that greeted Congress's fiddling with the Court's numbers only seventy years before.4 Sometime by 1937, in a shift perhaps more important than the "switch in time," the Court had become an institution worth its marble temple, with special access to fundamental principles: a "bulwark of individual rights and personal dignity," as Hoffer, Hull, [End Page 155] and Williamjames Hoffer write in their own overview of the Court's history, a bulwark anchored, as Arnold would say, in an ability to resolve disputes by appeal to fundamental principle.5 As such it occupies an important place in the American political process—a reluctant but definite decision-maker of last resort. The series volumes that work best show the judiciary playing this role. Sometimes great social conflicts sluice through the channels of our institutions and finally funnel into legal chambers, taking a course that offers a superb opportunity to exhibit and examine the relation between great cases and American society. The book on Brown v. Board of Education: Caste, Culture, and the Constitution, by Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware, takes advantage of this opportunity. Brown brought the long struggle for school desegregation to the Court, which consented, however grumpily, to take up the cause. As Justice Robert Jackson remarked during oral argument, "I suppose that realistically the reason this case is here is that action couldn't be obtained in Congress." In his unpublished opinion, Jackson went on to say that the Court thus found itself in the awkward position of having to explain "that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved."6 Cottrol, Diamond and Ware note the Court's culpability in creating this difficulty for itself. Beginning their analysis a century before Brown, with cases that created a caste status based on color for African Americans, they point out that the country adopted the Civil War Amendments the Constitution to break that caste. Most important was the Fourteenth Amendment, in which its framers provided Constitutional authorization for contemporaneously passed "far-reaching federal civil rights legislation, legislation designed to protect the newly freed...
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Jan 1, 2012
Ira N Gang + 2
Open Access
