The Supreme Court

10 reviews on titles about the highest court in the land.

Baum, Lawrence. Ideology in the Supreme Court. Princeton, 2017. 261p bibl index ISBN 9780691175522, $35.00; ISBN 9781400885367 ebook, contact publisher for price.
Reviewed in CHOICE October 2017

Ideology is used to describe US Supreme Court decisions, sitting justices, and the Court itself. In this readable, informative, in-depth study, Baum (The Ohio State Univ.) argues that the ideological element in decision making by justices is not as simple as labeling their opinions as conservative or liberal. Baum examines decisions from 1910 through 2012 to uncover the powerful role justices’ attitudes toward social and political groups play in developing relationships between justices’ ideological stances and their position on issues and responses to individual cases. Freedom of expression, criminal justice, and takings cases are examined in detail. Baum persuasively illustrates the underlying complexity of ideology as not just a product of justices’ values, but of the way justices’ decisions are affected by social and political groups as well. According to Baum, by giving more attention to group affect as a source of polarity, scholars can gain a richer sense of ideology as an element in decision making in the Supreme Court. Summing Up: Recommended. Upper-division undergraduates through professionals. —J. M. Trayhan, Our Lady of the Lake 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

Davis, Richard. Supreme democracy: the end of elitism in Supreme Court nominations. Oxford, 2017. 275p index ISBN 9780190656966, $29.95; ISBN 9780190656980 ebook, contact publisher for price.
Reviewed in CHOICE January 2018

Davis (Brigham Young) looks at recent developments in the process of nominating and confirming Supreme Court justices, and finds a new “culture of public scrutiny.” He tells us that nominations to the court are no longer elite affairs, and he demonstrates the increase in public interest in nominations in the last half-century. Calling the process democratic is somewhat strange given that appointees are almost exclusively Harvard and Yale law graduates. Davis describes greater interest in the process and the contentious hearings that have become the norm. Today, the public gets a say in which Ivy League nominees get on the Court when there are hearings. Many contemporary scholars in the political science field known as “judicial process” accept this new process as democratic. Earlier scholars paid more attention to the demographic characteristics of the nominees, which have become more representative of the general population in some important respects. Summing Up: Recommended. Upper-division undergraduates through faculty. —J. Brigham, University of Massachusetts Amherst

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

Gibson, Katie L. Ruth Bader Ginsburg’s legacy of dissent: feminist rhetoric and the law. Alabama, 2018. 170p bibl index ISBN 9780817319786, $44.95; ISBN 9780817391751 ebook, $44.95.
Reviewed in CHOICE August 2018

The quality of the handsome cover of this book is a clue to the quality of this treatment of Justice Ginsburg’s influence on American law. The focus is Ginsburg’s introduction of a feminist perspective on the way people understand the United States Constitution’s provisions on equal protection. Gibson (Colorado State) draws on theories of language to explain how Ginsburg, first as an advocate and then as a justice, showed Americans how to think differently about the meaning of sexual equality and protections from discrimination against women. The text is grounded in the old inequalities that kept women from the public sphere. It discusses cases such as Reed v. Reed with its requirement to justify sexual distinctions. Provocatively, it illuminates Ginsburg’s reframing of the abortion argument, beginning with Roe v. Wade, from privacy to equality. With more than a little enthusiasm for Ginsburg’s popularity as “Notorious RBG,” the author incorporates popular culture into the world of constitutional law. She shows how the Supreme Court and the language by which Americans know the Constitution constitute American politics. And the bibliography is exceptional. Summing Up: Highly recommended. Upper-division undergraduates through faculty. —J. Brigham, University of Massachusetts Amherst

Hasen, Richard L. The justice of contradictions: Antonin Scalia and the politics of disruption. Yale, 2018. 226p index ISBN 9780300228649, $30.00; ISBN 9780300235340 ebook, contact publisher for price.
Reviewed in CHOICE December 2018

On October 7, 1986, Antonin Scalia took his seat as an associate justice on the US Supreme Court. Over the next 30 years, he would have a significant impact. When he joined his brethren he brought with him a commitment to constitutional originalism, which supports the interpreting of the Constitution as written by the framers, and statutory textualism, which defends the interpreting of statutes as authored. Scalia believed that by adopting his system, the court would hand down politically neutral decisions. Several legal scholars, many of whom believe that the Constitution is a living document, have been critical of Scalia’s stand. Among them is legal scholar Richard Hasen (UC Irvine). In his book, he provides a review of the Scalia years and his application of originalism/textualism. The work’s title sums up Hansen’s point of view. He notes that at times the justice would skip over the rules he set forth. This well-written work of scholarship is readable at all levels. Summing Up: Recommended. Upper-division undergraduates through professionals. —J. J. Fox Jr., emeritus, Salem State University

Kalman, Laura. The long reach of the sixties: LBJ, Nixon, and the making of the contemporary Supreme Court. Oxford, 2017. 468p index ISBN 9780199958221, $34.95; ISBN 9780199958238 ebook, contact publisher for price.
Reviewed in CHOICE October 2017

The Long Reach of the Sixties examines Supreme Court appointments from the mid-1960s through the early 1970s. Kalman argues that these appointments by Johnson and Nixon, including their many failed efforts, signal a key shift in confirmation politics that set up many of the dynamics at play today. Her detailed examination of phone calls from both presidents traces the changing politics of selection. As conservative Republicans and southern Democrats targeted the policing decisions of the Warren Court, a previously deferential process in the Senate became much more contentious. This was exacerbated by the perception of cronyism and ethically questionable behavior among Johnson’s appointments and hostility to civil rights combined with questionable qualifications among Nixon’s. Kalman details the missteps, calculations, and critical choices by both presidents, concluding with a convincing narrative that places each of the subsequent nominations, up to Merrick Garland, in the context established during the Johnson and Nixon presidencies. Kalman deftly argues that confirmation hearings with little substance, nominees selected exclusively from Harvard and Yale, and the heavy emphasis on past judicial experience are a direct consequence of the lessons presidents have learned from this critical period. Summing Up: Highly recommended. All readership levels. —C. Shortell, Portland State University

Robinson, Kimberly. American justice 2017: the Supreme Court in crisis. Pennsylvania, 2017. 162p ISBN 9780812249972, $24.95; ISBN 9780520292925 ebook, $19.95.
Reviewed in CHOICE April 2018

The unexpected death on February 13, 2016, of Justice Antonin Scalia precipitated an unprecedented challenge to American constitutional norms. Faced with the prospect of a liberal Supreme Court majority for the first time since the early 1970s, Senate Republicans simply refused to consider Merrick Garland, President Barack Obama’s nominee for the vacancy. This book, written by a leading legal journalist and practicing attorney, briefly touches on the controversy over the vacancy, but its main thrust is to analyze the performance of the shorthanded Court between the death of Scalia and the installation of Neil Gorsuch. Robinson explores the cases decided by the eight-justice court, and does so against the backdrop of a hyperpoliticized legal environment that affected not only the substance of the Court’s work, but also the Court’s institutional standing. Paying special attention to cases centered on citizenship and criminal justice, the author hypothesizes that going forward the Court will continue to struggle to both bring clarity to these issues and restore its reputation as a neutral legal arbiter. The book closes with a brief review of Justice Gorsuch’s early Court tenure. Summing Up: Highly recommended. Upper-division undergraduates through professionals. —S. B. Lichtman, Shippensburg University

Zirin, James D. Supremely partisan: how raw politics tips the scales in the United States Supreme Court. Rowman & Littlefield, 2016. 299p index afp ISBN 9781442266360, $28.00; ISBN 9781442266377 ebook, $27.99.
Reviewed in CHOICE February 2017

Former Assistant US Attorney James Zirin presents an interesting discussion of the impact of partisanship on the current US Supreme Court. The book is timely considering the controversy surrounding the replacement of Justice Scalia. One benefit of the book is that it is well-researched. Excellent information is provided in an accessible manner (without much legal jargon). Zirin also focuses on some of the most important Supreme Court decisions in recent years, such as health care and freedom of religion. On the other hand, the book has important flaws that deserve attention because it does not provide a major contribution to understanding the court—the fact that the court is political or that judges are partisan is discussed often in the scholarly literature, and other authors (Erwin Chemerinsky, for example, in The Case Against the Supreme Court, 2014) have written better books on the subject in recent years. The author could also have been more impartial. Liberal judges or decisions are presented much more favorably than their conservative counterparts, so the partisanship of the author is also clear. Summing Up: Recommended. Upper-division undergraduates through faculty. —B. W. Monroe, Prairie View A&M University