The Supreme Court

A look at the highest court in the country as a new president prepares to take office.

Posted on November 19, 2020 in Hot Topic

book covers

Brookhiser, Richard. John Marshall: the man who made the Supreme Court. Basic Books, 2018. 324p bibl index ISBN 9780465096220, $30.00; ISBN 9780465096237 ebook, contact publisher for price. 
Reviewed in CHOICE April 2019

Prior to 1801, the US Supreme Court was a weak branch of the government. Between 1789 and 1800, three chief justices were seated. The game of musical chairs ended in 1801 when John Marshall was sworn in as the fourth chief justice of the court. Marshall remained in office until his death in 1835. Over the years, the chief justice and his court brothers strengthened the court. In Marbury v. Madison (1803), it established the precedent of judicial review, making the judicial branch equal to the other two branches of government. Brookhiser, who has published seven books on the founders, gives clarity to the 34 years Marshall served. This work is organized into four sections. The first covers Marshall years before his appointment. The next three sections focus on the 34 years of his tenure. Brookhiser’s final chapter, “Legacy,” could stand on its own. The subtitle of the book, The Man Who Made the Supreme Court, hits the nail right on the head. Summing Up: Highly recommended. Upper-division undergraduates through faculty. —J. J. Fox Jr., emeritus, Salem State University

Caplan, Lincoln. American justice 2016: the political Supreme Court. Pennsylvania, 2016. ISBN 9780812248906, $24.95; ISBN 9780812293722 ebook, $19.95.
Reviewed in CHOICE April 2017

Caplan (Yale) is a well-known, well-respected observer of the Supreme Court and a public intellectual who has contributed to the New Yorker and the New York Times on legal affairs. He notes what every political scientist knows: the courts, particularly the US Supreme Court, are both political and legal institutions. They are political in that they make decisions that choose winners and losers, but they do so tempered by precedent and legal reasoning. To illustrate, he examines the court term ending in 2016. He provides in-depth analysis of some of the most illustrative cases (abortion, affirmative action, immigration, white collar crime, the death penalty) and shorter synopses of others. Along the way, he also provides broader understandings of the history of the court and the conclusions of scholars who have studied it from both a legal and a social science perspective. The death of Justice Antonin Scalia and the Republicans’ refusal to hold hearings on his nominated successor, Merrick Garland, only serve to further show the Supreme Court’s politicization by actors both in and out. Summing Up: Highly recommended. All readership levels. —M. W. Bowers, University of Nevada, Las Vegas

The Conscientious justice: how Supreme Court justices’ personalities influence the law, the high court, and the Constitution, by Ryan C. Black et al. Cambridge, 2020. 358p bibl index ISBN 9781107168718, $110.00; ISBN 9781316731833 ebook, $88.00.
Reviewed in CHOICE December 2020

To say that this work is comprehensive would be an understatement, because in fact it takes a very deep dive into conscientiousness and the justices of the US Supreme Court. The result is a tome that upsets traditional political scientific theories that justices are either single-minded policy makers or strategic thinkers using their positions to ensure their desired policy choices. Black (Michigan State Univ.) and his fellow authors, all scholars of government and political science, suggest that factors such as law, reputation, and personality affect the actions of the justices. The authors begin quite logically with a review of the evolution of political science scholarship on judicial behavior and then thoroughly discuss their methodological approach. In subsequent chapters they apply their approach to the concerns and actions of justices, for example selection of cases (agenda setting); legal briefs and oral arguments; opinion assignment, bargaining, and content; treatment of precedent; and so on. This pathbreaking book should be read by anyone interested in the workings of the Supreme Court and its justices. Summing Up: Essential. Upper-division undergraduates through faculty; professionals. —M. W. Bowers, University of Nevada, Las Vegas

Fallon, Richard H, Jr. Law and legitimacy in the Supreme Court. Belknap, Harvard, 2018. 221p index ISBN 9780674975811, $39.95; ISBN 9780674986114 ebook, contact publisher for price.
Reviewed in CHOICE July 2018

Fallon (Harvard) blends legal, philosophical, and political analysis into a larger theory of constitutional decision-making. Unlike his predecessors, Fallon does not try to establish an approach that all judges should take to reach the correct decision. Instead, his approach could best be described as meta-theory. He is driven by the practical concern of maintaining legitimacy for the Supreme Court. Are judges deciding cases based on personal preferences, or are they constrained by law, whatever that might mean for each individual judge? After reviewing the shortcomings of original public meaning, historical interpretation, and precedent, Fallon turns to Rawls for guidance. Fallon develops the reflective equilibrium theory, which provides a mechanism by which judges can legitimately change their approach to the constitution over time and thus not be locked into an unchanging theory of decision-making. This provides a means by which the legitimacy of judicial decisions can be evaluated, and which judges could adopt to protect the judiciary from claims of partisanship. Practical and philosophical, Fallon’s book prompts readers to revisit constitutional theories in a fresh and valuable way. Summing Up: Highly recommended. Upper-division undergraduates through professionals. —C. Shortell, Portland State University

Fisher, Louis. Supreme Court expansion of presidential power: unconstitutional leanings. University Press of Kansas, 2017. 331p indexes ISBN 9780700624676, $39.95; ISBN 9780700624683 ebook, contact publisher for price.
Reviewed in CHOICE February 2018

This new study of the constitutional demarcations of executive power achieves the difficult task of standing out in a well-explored field. Fisher (The Constitution Project) is one of the most accomplished constitutional scholars of this era. He has organized this study chronologically rather than by topic. The advantage of this approach, which is not customary in constitutional scholarship, is to show that understandings of presidential power evolved over time, as opposed to being Balkanized within bounded issue areas. The book’s primary virtue is its deep dive into precisely how the expansion of presidential power was abetted by the Supreme Court’s imperfect institutional assumptions and flawed readings of history. To cite one example, the author shows in detail how the idea that the president is the “sole organ” of foreign policy emerged as a result of the court’s sloppy reliance on only one part of a speech in Congress made by representative (and future Chief Justice) John Marshall in 1800; the remainder of Marshall’s speech showed it was a more limited argument than future iterations of the court made it out to be. Such accounts make this book a valuable addition to the literature. Summing Up: Highly recommended. Upper-division undergraduates through faculty. —S. B. Lichtman, Shippensburg University

Hasen, Richard L. Plutocrats united: campaign money, the Supreme Court, and the distortion of American elections. Yale, 2016. 241p index afp ISBN 9780300212457, $32.50.
Reviewed in CHOICE July 2016

Hasen (Univ. of California, Irvine) is one of the nation’s top scholars on election law.  Here, he brings that expertise to bear on the US Supreme Court’s 2008 Citizens United decision.  Weaving together political science, economic, and legal studies, Hasen lays out a compelling case for the ways in which the decision to remove limits on corporate and union campaign spending gives more political power to the wealthiest.  At the same time, he is more considerate of the very real First Amendment concerns in campaign finance than most critics of the decision.  This leads him to lay out a new path forward for adopting reform in the near and long term, a path focused on the concept of political equality.  The writing is accessible to undergraduates and general readers, explaining social scientific research and legal debates in clear terms.  Though he is very much a critic of the decision, his thought-provoking reform plan can be used to spark classroom discussion about campaign finance that is grounded in a deeper understanding of what is at stake in balancing different values. Summing Up: Highly recommended.

Hitt, Matthew P. Inconsistency and indecision in the United States Supreme Court. Michigan, 2019. 207p bibl index ISBN 9780472131365, $75.00; ISBN 9780472125227 ebook, contact publisher for price.
Reviewed in CHOICE February 2020

Hitt (Colorado State Univ.) presents a fascinating study about the relationship between the two main functions of the US Supreme Court: resolving constitutional disagreements and establishing clear legal principles for the rest of the government or the public to follow. The book is especially noteworthy because the author counteracts the logical perception that these two goals work together by providing empirical data that shows a more complex and contradictory reality. In arguing his position, Hitt astutely considers how the Supreme Court has evolved, the implications of Congressional responses to Supreme Court decisions, and whether changes to the structure of lower federal courts are worthwhile. The information the author provides and his attention to detail make this an outstanding example of quantitative political science research, with the added benefit of clarity of writing style. The book’s chief shortcoming has to do with audience: readers will need an understanding of advanced statistics in order to get the most out of this book, and this limits its audience to specialists. Summing Up: Highly recommended. Graduate students, researchers, faculty. —B. W. Monroe, Prairie View A&M University

Hume, Robert J. Ethics and accountability on the US Supreme Court: an analysis of recusal practices. SUNY Press, 2017. 189p bibl index ISBN 9781438466972, $85.00; ISBN 9781438466989 ebook, contact publisher for price.
Reviewed in CHOICE August 2018

Hume (Fordham) has taken on a fascinating and difficult subject: Do Supreme Court justices recuse themselves as we demand and expect in our judicial system? What factors inform and influence recusals, and what reforms are required if needed to mend the system? What really motivates recusal, and must we rely on our confidence in the Court itself? There are ethical dangers in our practices. Hume enters into a systematic and comprehensive analysis that takes into consideration the public and media to ask if there is a crisis of ethics. Ultimately, the answer is no—not exactly. Of course, reforms might improve public confidence in the Court, but in fact the costs of Congressional reforms forced on the justices could actually impede their ability to serve. Reforms would likely impose administrative costs that the author finds unnecessary, given that there is no ethics crisis present in the public discourse for several decades. In the end, the real problems of credibility in the Court are not with ethics, but rather in with politics. Highly recommended to all specialists in constitutional law. Summing Up: Highly recommended. Upper-division undergraduates through professionals. —A. R. Brunello, Eckerd College

​McGann, ​Anthony J. Gerrymandering in America: the House of Representatives, the Supreme Court, and the future of popular sovereignty, by Anthony J. McGann et al. Cambridge, 2016. 261p bibl index ISBN 9781107143258, $89.99; ISBN 9781316507674 pbk, $34.99; ISBN 9781316534342 ebook, contact publisher for price.
Reviewed in CHOICE August 2018

McGann et al. explain how partisan gerrymandering allowed a minority of voters to elect a majority of the US House of Representatives in 2012 and created a virtual Republican lock on the institution until 2020. The authors make a provocative argument about the signal sent by the Supreme Court’s Vieth v. Jubelirer decision, which they claim encouraged state legislatures to maximize partisan advantage in competitive states. The analysis demonstrates that the tendency toward extreme gerrymanders follows the court’s decision. However, rival hypotheses for the increased tendency of legislatures to seek partisan advantage cannot be ruled out. Thus, this work is certain to spur future scholarship to disentangle the effect of the court from other explanations for partisan gerrymanders. The authors also convincingly demonstrate that violating the principle of majority rule imperils equal protection of individual rights. This conclusion is significant because it provides fodder for future legal challenges to partisan gerrymanders and grounds them firmly in constitutional goals. This book represents the best of social science research by addressing a relevant topic, embracing normative implications for democratic theory, and offering guidelines to ensure popular sovereignty. Summing Up: Highly recommended. Upper-division undergraduates through faculty. —T. Lynch, Lewis-Clark State College

Virelli, Louis J, III. Disqualifying the high court: Supreme Court recusal and the constitution. University Press of Kansas, 2016. 275p index afp ISBN 9780700622719, $39.95; ISBN 9780700622726 ebook, contact publisher for price.
Reviewed in CHOICE December 2016

The thought-provoking premise of this excellent book is that the norm of individual Supreme Court justices’ removing themselves from the process of deciding a case should be looked at from not merely an ethical perspective (which is the conventional view) but from an institutional perspective as well. Virelli (law, Stetson Univ.) argues that decisions by justices to recuse themselves—or, alternatively, to refuse to recuse themselves—have important implications for the separation of powers. After tracking the development of recusal, as a general concept and its evolution within the American legal tradition, Virelli places the debate over recusal standards into the larger context of interbranch relations and the Constitution’s varying ability to provide guidance in these situations. The achievement of this book is how it transforms what is normally a stolid question about ethical standards into a vibrant inquiry about the intersection of government power and binding rules. The creative nature of this project is buttressed by a lively, accessible writing style; it is a valuable resource for students and experienced scholars alike. Summing Up: Essential. All readership levels. —S. B. Lichtman, Shippensburg University

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