The American Supreme Court, Fourth Edition (The Chicago History of American Civilization) Review

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The American Supreme Court, Fourth Edition (The Chicago History of American Civilization) ReviewThere are a surprising number of ways to approach and review this book, given that its original length was only 160 pages, give or take. True, Sanford Levinson, Robert McCloskey's disciple while a graduate student at Harvard University, has added approximately 100 pages to his mentor's text, covering the 45 years of constitutional jurisprudence that has developed since the book's original publication. Even at 260 pages, though, you'd think more narrative would be required adequately to tell the full story of one of the three co-equal branches of the federal government.
The length of the book, I would argue, is both its strength and its weakness. First for the weakness. I believe the book loses some explanatory power by neglecting the development of internal doctrinal developments in the Supreme Court, purely as a matter of constitutional law. For example, G. Edward White in The Constitution and the New Deal and Barry Cushman in Rethinking the New Deal Court (both of which I highly recommend, by the way) have put forth compelling (though not water-tight) arguments that stress the development of constitutional law over decades as a way of understanding legal change in the 1920s and 1930s. Also, McCloskey, outside of his treatment of John Marshall (which is really, really adulatory) does not show how different justices have brought personal proclivities or intellectual strengths and weaknesses to bear on their efforts to change, or maintain, the law. There is no discussion of the often fascinating game of coalition building in the Supreme Court, except the passing mention of such giants in this regard as Joseph Story, Felix Frankfurter or William Brennan.
But to a certain extent this is merely criticizing McCloskey and Levinson for writing a book they never intended. For what it purports to accomplish this book does an excellent job, all the more so for its brevity. The prose clearly and succienctly anchors the Supreme Court as a political institution struggling to maintain its institutional place in the American government and its voice in the construction of public policy. The authors argue this has been done most effectively when the Court decides cases within general political parameters deemed acceptable by the majority of Americans. It is not, therefore, usually a counter-majoritarian institution.
The Court has failed, conversely, and cost itself valuable institutional and political capital, when it oversteps those parameters. The most notorious examples of the latter include the Dred Scott decision, the series of holdings from 1934 to 1936 when it categorically shut off President Roosevelt's attempt at socio-ecoonomic reform, and the Bush-Gore litigation of 2000.
The Court has been more successful when it cogently articulates its adherence to the Constitution's "fundamental law" as ultimately compatible with a given political era's view of popular will. Thus, for example, the gradual development in the first three generations of the nation's history of the power of judicial review, the federal government's power over the states, and the protection of private property all fit within the acceptable political interests and values of the time. The nation's majority, after all, (pace, Sean Wilentz) wanted the Supreme Court to discern objectively the Constitution's fundamental law, and desired a strong national economy to spread the benefits of market capitalism. Or so McCloskey and Levinson argue.
This is a great book for political scientists and legal historians and lay readers interested in the interface between law and politics. It puts the kabosh to tiresome, relentless arguements that the Court can, or should, separate itself from politics. Everyone loves judicial review so long as their ox is not GORED (pun intended). McCloskey and Levinson make a great point that judicial review (and sovereignty?) is needed for a healthy democracy, PROVIDED the Court behaves responsibly and within the consensus of a specific era's interests and concerns.The American Supreme Court, Fourth Edition (The Chicago History of American Civilization) Overview

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