In the weeks preceding the Obamacare case, many veteran Supreme Court-watchers could not bring themselves to believe that a majority of the justices would find the individual health insurance mandate unconstitutional.
Law in American History, Volume I: From the Colonial Years Through the Civil WarBy G. Edward White (Oxford University Press, 565 pp., $39.95) G. Edward White is one of America’s most eminent legal historians. He has written fifteen books, many of which have won awards and honors.
The Collapse of American Criminal Justice By William J. Stuntz (Harvard University Press, 413 pp., $35) William Stuntz, who unfortunately died young, before this book was published, was a leading criminal law scholar, and this volume is exceptionally rich, insightful, provocative, and well-written. It is bound to have great influence on academic thinking, and perhaps in time on the criminal justice system itself.
On March 29, 1989, at a time when many of his fellow first-year law students were beginning to prepare for the spring semester’s looming examinations, Barack Obama paid a visit to the office of eminent constitutional law professor Laurence Tribe. Obama had not dropped by to brush up for a test. In fact, he had yet even to enroll in an introductory constitutional law course, a gratification Harvard Law School denies its students until the second year of study. Obama’s call was purely extracurricular: He wanted to discuss Tribe’s academic writings.
Justices and Journalists: The U.S. Supreme Court and the Media By Richard Davis (Cambridge University Press, 241 pp., $28.99) The way in which every person, every institution, relates to people is essentially, though often unconsciously, theatrical. We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy. This is true of the Supreme Court, too, and of the individual Supreme Court justices.
Justice Brennan: Liberal Champion By Seth Stern and Stephen Wermiel (Houghton Mifflin Harcourt, 674 pp., $35) In September 1956, when the eminently forgettable Justice Sherman Minton announced his retirement from the Supreme Court, President Eisenhower’s motivation in selecting a replacement stemmed less from legal considerations than from political calculations. With the upcoming presidential election just weeks away, he instructed Attorney General Herbert Brownell Jr. to locate a nominee who, in addition to being younger than sixty-two, was both a Catholic and a Democrat.
In 1997, Justice Antonin Scalia released a slender volume setting forth his judicial vision. In addition to defending originalism, Scalia sought to disparage what he viewed as the then-dominant mode of interpreting the Constitution. “The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that ... grows and changes from age to age, in order to meet the needs of a changing society,” Scalia wrote.
The Wall Street Journal digs up Elena Kagan's 1983 master's thesis, in which she attacks judicial activism: In the Oxford paper, Ms. Kagan wrote that Supreme Court justices should rest their rulings squarely on a firm legal foundation, such as statutes and court precedents. Only then can court rulings command respect and stand the test of time, she wrote.
In a recent TNR article about the Citizens United decision, “Roberts versus Roberts,” I argued that the chief justice has so far failed to achieve his goal of promoting narrow, unanimous decisions rather than ideologically polarizing ones. After the piece came out, Ed Whelan claimed that Roberts had never promised to try to lead the Court in such a fashion.