George Stephanopoulos turned up at the Supreme Court last week, sitting next to Joel Klein, the deputy White House counsel. Their joint appearance seemed to illustrate the administration's anxiety about the case, Adarand v. Pena, in which the Court is being asked to strike down racial preferences in the construction industry that have been endorsed by every president since Nixon. But Klein assured me afterward that Stephanopoulos, who had never seen a Supreme Court argument before, had come along purely out of curiosity. He picked a good day.
Hugo Black: A Biography by Roger K. Newman (Pantheon, 741 pp., $30) On February 17, 1960, at New York University, Justice Hugo Black defended his judicial philosophy against the sneers of Felix Frankfurter and Learned Hand. "Some people regard the prohibitions of the Constitution ... as mere admonitions which Congress need not always observe," said Black in backhanded response to Hand's lectures at Harvard two years earlier. This approach, which "comes close to the English doctrine of legislative omnipotence," Black could not accept.
Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom by Ronald Dworkin (Knopf, 273 pp., $23) Liberals urgently need a constitutional philosophy, and Ronald Dworkin is eager to provide one. In his important writings over the past three decades, he has tried to work out a comprehensive theory of law, as well as a principled approach to the American Constitution. With few apologies, he has defended the Warren Court against a parade of conservative critics -- from the Burkean prudentialism of Alexander Bickel to the purported historicism of Robert Bork.
The Founding Fathers, who met in the summer of 1787 to draw up a Constitution for the United States, gave relatively little attention to the judiciary. Clearly they had only a hazy notion of the vital role the judiciary was to play in umpiring the federal system or in limiting the powers of government. Article III of the Constitution says nothing whatever about the qualifications of judges, or about the mechanics of choice. Indeed it says practically nothing about the mechanics of the judicial system itself.