The Judicial Bookshelf

D. GRIER STEPHENSON, JR.

As scholars assess developments in American constitutional government a half century or even a full century hence, they will look back to the extraordinarily rich and varied writings of those who preceded them. This is the opportunity afforded today's students as well. One's insights into a particular period are enhanced by those who wrote at another time.

Consider Popular Government, a collection of four essays written barely more than a century ago by the English legal historian Sir Henry Sumner Maine,[1] who wrote approximately halfway between establishment of government under the Constitution and our own time. For the contemporary reader who looks at the volume from a distance of 106 years, his treatment of the judiciary contains both the familiar and the unfamiliar--the Court of today as well as the Court of yesterday. Then as now, one sees an institution beset by the tension posed in the American political system between popular sovereignty and limited government, between "government by the people" and legal restraints on the people's government. The tension is the hallmark of a government founded on both the consent of the governed and the expectation, in Justice Jackson's words, "that we submit ourselves to rulers only if under rules."[2]

In Maine's British-based observations on the American political system fifteen years before the turn of the twentieth century, the Supreme Court "was not only a most interesting but a virtually unique creation of the founders of the Constitution." In his view, the division of policy-making authority between the President and Congress, the concept of a national government of limited powers, and the existence of the states meant that the political system needed an institution both to expound the Constitution and to clarify the boundaries of political authority. For Maine, judicial review was essential to American government. "The success of this experiment [judicial review] has blinded men to its novelty," Maine wrote. "There is no exact precedent for it, either in the ancient or in the modern world." The Court's constitutional role was the product of "the unsatisfactory condition of English Constitutional law [at the time of the American Revolution], and of its many grave and dangerous uncertainties." The Framers wanted to avoid "a system under which legal questions were debated with the utmost acrimony, but hardly ever solved...."[3]

Yet there are sharp contrasts between the Court Maine knew and the Court of today. Maine wrote at a time when the Court was chiefly a supreme court of errors. Constitutional issues still accounted for a small part of the Court's business. In 1875, for example, they occupied only about six percent of the docket, compared to about half the docket a century later. It was not until six years after publication of Popular Government that Congress created the Circuit Courts of Appeals in 1891, the first true and lasting intermediate appellate bodies in the federal judicial system. With introduction of some certiorari jurisdiction (to be greatly expanded in 1925) and a soon-to-be-enlarged corpus of federal legislation (being in Congress in Maine's day was very much a part time job), a different role for the Court could emerge. In contrast to the docket of the nineteenth century, public law in both its constitutional and statutory forms now consumes the Court's time. Moving beyond its dispute-resolution role, the Court has become mainly a maker of public policy for uniform application across the nation.

Maine also wrote before a sizeable fraction of the constitutional cases which did arise involved the Bill of Rights. The dominant conception of the Bill of Rights in the late nineteenth century may well have had more in common with the late eighteenth century than with the late twentieth century. For Maine, the Bill of Rights consisted of "a certain number of amendments on comparatively unimportant points."[4] Although he does not elaborate, one suspects that by "comparatively unimportant" he meant unimportant judicially--that they had not become a common source of federal litigation. That could not happen to any significant degree without two occurrences: first, the provisions of the Bill of Rights would have to be applied to the states through the Fourteenth Amendment (given the large place, relative to the national government, state and local governments had in the lives of their citizens). This extension had not yet begun in 1885. Indeed, only the year before in Hurtado v. California[5] the Supreme Court placed a seemingly immovable barrier in its way. Moreover, the Fourteenth Amendment as well as the other two Civil War amendments seemed to Maine, with one notable exception, to have had little impact. "[A]t the present moment the working of the Constitution of the United States does not, save for the disappearance of negro slavery, differ from the mode of its operation before the civil convulsion of 1861-65."[6]

Second, Americans would have to re-think the purpose of a bill of rights in a democratic government. The idea of a bill of rights was hardly unique to Americans. Bills of rights in the earliest state constitutions and the federal Bill of Rights were themselves offshoots of English constitutional documents such as the Petition of Right of 1628 and the Bill of Rights of 1689. But the onset of democratic government ultimately brought a radical change in the nature of bills of rights. Before, a bill of rights was a mainly hortatory device to protect the majority ("the people") from the minority (the Crown, for instance), the many from the few. Though rights were proclaimed, no practical enforcement mechanism existed. Later, with political power lodged in the hands of a majority of those admitted into the political community, bills of rights and constitutional limitations were transformed into devices to protect the few from the many. Because of majoritarianism, protection would not reliably come from the legislature, where "the many" would prevail. Protection would have to come from the courts. Liberty would have to become a juridical concept. Some had glimpsed the beginning of this transformation a century before Maine. James Madison, in his correspondence with Thomas Jefferson over the desirability of a federal bill of rights had observed, "Wherever the real power in a Government lies, there is the danger of oppression." In reply, Jefferson asserted:

Change thus overtakes research and is ever the threat to one's certainties and conclusions. Maine's depiction of the Court has to be understood in the light of events he could not foresee, events that have become the scholarly grist for others.

Recent books are ample evidence that attention to what Maine called an "interesting" and "virtually unique creation" continues at a quick pace. For books about the Court, a useful framework of analysis consists of at least five elements: the political and intellectual environment, personnel, past, process, and product. The first refers to the governmental and social systems in which the Court operates. The second includes individual Justices. The third encompasses the nation's history, as well as the vast body of judicial decisions from prior eras. The fourth points to the manner in which the Court arrives at its decisions. The last consists of the Court's current and recent decisions--the end result of the decision making process--as well as their acceptance and implementation. Each of these elements finds expression in varying degrees in the books surveyed here.[8]

Political and Intellectual Environment

The Constitution entrusts the composition of the Supreme Court, as well as the lower federal courts, to both the President and the Senate. The choice of the former requires the consent of the latter. It is therefore not surprising to discover that the process designed, in Madison's words, to give the nation a "bench happily filled" has become at heart political-- "political" both in the narrow (meaning partisan) and broad (meaning affecting the allocation of power and influence) senses of that word. That partisan considerations rather than the fitness of nominees would often be the Senate's controlling consideration would surprise most members of the Founders' generation, except for a few who, like John Adams, visualized clearly the rise of political parties.[9]

Senatorial approval is usually forthcoming, but not always. Through 1991, 106 individuals have served on the Court, including Justice Thurgood Marshall's replacement.[10] Of all the nominations to the Court Presidents have submitted to the Senate, 26 have been rejected or withdrawn or have otherwise failed to pass. By contrast, the Senate has blocked only nine nominations to the Cabinet since 1789. Senators therefore view their constitutional obligation to give "advice and consent" as entailing greater scrutiny and more independence with Justices than with heads of executive departments. Enhanced attention to the former is explained by the Court's place in the political system, life tenure, and the fact that the Court, unlike the Cabinet, is outside the executive branch.

Yet scrutiny by the Senate has not been even. Most of the instances when a Supreme Court nominee failed to win approval occurred in the nineteenth century. From 1900 through Justice Thomas's confirmation in 1991, Presidents sent 58 names to the Senate. Of these, only five (John Parker, Abe Fortas, Clement Haynsworth, Harrold Carswell, and Robert Bork (Douglas Ginsburg withdrew his name before President Reagan got around to sending the formal nomination to the Senate)) were unsuccessful. The remaining 20 unsuccessful nominations all date from the nineteenth century, save John Rutledge's as Chief Justice in 1795. Indeed, from the rejection of Wheeler Peck-ham in 1894 until President Johnson's selection of Associate Justice Fortas to succeed Earl Warren as Chief Justice in 1968--a period of 74 years--the Senate failed to act favorably on only one nomination to the Court: Judge Parker's in 1930. These figures should not suggest that the remaining appointments encountered no substantial opposition. A few did, including President Wilson’s appointment of Louis D. Brandeis in 1916. But the Senate's generally relaxed scrutiny after 1894 understandably led one Court-watcher to observe in 1965 that future rejections would be unlikely.[11] Perhaps the Seventeenth Amendment, ratified in 1913 and providing for the popular election of United States Senators, removed at least for a time some of the basis for political differences between the President and the Senate.

Changed circumstances negated such predictions. Within less than two years from 1968, three nominations failed in the Senate. This turn of events presents the question John Massaro attempts to answer in Supremely Political--"why the United States Senate periodically rediscovers its power of advice and consent and refuses to confirm a nominee to the high court."[12]

To answer this question, Massaro considers the Fortas, Haynsworth, and Carswell nominations not in isolation but in the context of past nominations, both the majority that succeeded and the minority that did not. (There is also a chapter on the difficulty President Reagan had in filling the seat vacated in 1987 by Justice Powell.) Specifically, Massaro wants to know whether the cases of Fortas, Haynsworth, and Carswell are "separate, idiosyncratic events" or whether they "reflect a discernible pattern of factors associated with unsuccessful nominations."[13] Ironically, of these three troubled nominations, the latter two came about only as a result of the resignation of Fortas as Associate Justice in the spring of 1969, following the Senate's refusal to approve his promotion to the center chair the previous fall and the revelation in Life of Fortas's financial relationship with Louis E. Wolfson.[14]

For Massaro the key factors in determining whether a nomination fails or succeeds are the nominee's ideology (as perceived by the Senate), timing, and presidential management. Ideology includes the views and political outlook of the nominee. Timing refers to the months remaining in a President's term. (The timing is "bad" if that number is twelve or fewer.) However, the concept of timing might also be enlarged to include events occurring coincidentally with the nomination which work for or against the President's having his way. Presidential management, the third factor, must be considered because the Constitution gives to the executive the sole authority to decide whom the Senate will be asked to approve. For this reason, Massaro thinks of the President as having "ultimate accountability" for assuring Senate confirmation, even though the president's wishes are hardly the only ones that matter.

Presidential management includes in turn two distinct stages: pre-nomination and post-nomination. During the former, the President directs the screening process to obtain complete information on all candidates for the vacancy and then selects someone confirmable by the Senate. During the latter, the President oversees the carrying out of a strategy to gain confirmation and takes care "that positive relationships are generally maintained with senators to provide the most favorable atmosphere possible for the nomination during the Senate's deliberations."[15]

Massaro believes that presidential management may well be the most important factor when either of the other two is unfavorable. He arrives at this position by examining the impact of the other two factors, ideology and timing. Among previous nominations, where a majority of the Senators and the President were of different parties (which presents a prima facie case for an ideological division between the Senate and the President), or where the nomination was forwarded to the Senate in the last full year of a President's term (a problem in timing), the rate of refusal is 19 percent. If neither condition is present, the rate of refusal is only 10 percent. If both conditions are present, the rate is an astonishing 71 percent.[16]

With the Fortas, Haynsworth, and Carswell nominations, only one of the two detracting conditions was present in each. With Fortas, although President Johnson, a Democrat, faced a Senate firmly in Democratic control, Chief Justice Warren's announcement to retire occurred in the last year of his term and after he had informed the nation dramatically in March that he would not seek renomination for a second full term. Although the Haynsworth and Carswell nominations fell early in President Nixon's first term (and so presented no timing difficulty), the Republican President had to deal with a Democratic Senate. Ordinarily, for each of the three, the odds would still have favored confirmation. The key to the failure of all three lies in "an appreciation of the roles Presidents Johnson and Nixon played in these defeats. Both Presidents failed to exercise the astute management called for in attempting to gain Senate approval...."[17] To a large degree, Massaro explains the defeat of Robert Bork in the same way.

With Haynsworth, whose ordeal began when Fortas's ended, the problem was the inability to sever the "Fortas-Haynsworth connection"--the ethical doubts that swirled around Haynsworth just as they had about Fortas. The White House staff could not make a "credible" distinction between the two in order to shore up support for Haynsworth, especially among Senators already troubled on ideological grounds. From an analysis of pertinent documents, Massaro shows that Bryce Harlow had recommended that Haynsworth be encouraged to withdraw his name when it became apparent that the connection with Fortas could not be erased.[18]

The connection with Fortas was critical in another way too: it buttressed the tendency of Fortas's own supporters to vote "no" on Haynsworth. This is what Rowland Evans and Robert Novak called the "post-Fortas lust for revenge among Democratic senators."[19]

Indeed, the volume's strength is its consideration of presidential management. This is also a weakness, since the scope of the factor may be too broad to be entirely useful. Since presidential management encompasses so vast an expanse of decisions and oversight, almost any negative result can be attributed to it. In the end, if the Senate rejects a nominee, one could always contend that, had the President picked someone else (an act of management), the outcome would have been different. Nonetheless, by focusing attention on the President's role from start to finish, Massaro leaves the accurate impression that confirmation to so important and politically sensitive a post as Supreme Court Justice rarely 'just happens." It is the product of careful planning and execution, and (as most Presidents discover) good luck.

The Haynsworth nomination is the subject of another book which appeared shortly after Massaro's: Clement Haynsworth. the Senate. and the Supreme Court by John P. Frank, with a foreword by Justice Lewis F. Powell. Like Massaro's, Frank's work devotes space to the Carswell nomination. Unlike Massaro's, Frank's begins not with Johnson's nomination of Fortas to be Chief Justice but with Fortas's resignation, it reviews Nixon's successful nomination of Judge Harry A. Blackmun, and it refers to the Bork nomination only in passing.

John Frank is no newcomer to the study of the Supreme Court. Once a clerk to Justice Hugo L. Black, Frank has written widely on the Court and on individual Justices.[20] Of particular relevance to the Haynsworth matter are articles Frank wrote on judicial appointments and judicial disqualification in 1941 and 1947, respectively.[21] His latest book is a significant addition to the literature on the political setting of Supreme Court nominations. Not only was Frank a participant in the Haynsworth hearings (he testified on the conflict-of-interest issue), but he was able to gain access to some hitherto confidential documents. For example, Frank made use of a lengthy oral history dictated by Haynsworth containing his own impressions of the nomination,[22] the Haynsworth Papers at Furman University, memoranda from the Department of Justice (including some written by then Assistant Attorney General William Rehnquist) which Frank acquired through the Freedom of Information Act, an interview with former Attorney General John Mitchell, the Earl Warren Papers at the Library of Congress, as well as other papers and interviews. While the book contains no startling revelations, these sources allowed Frank to provide information not available to others such as Robert Shogan and Richard Harris who also wrote helpful books on this period of Court history.[23]

Unlike Massaro, Frank does not believe that errors in "presidential management" (to use the former's term) contributed significantly to Haynsworth's defeat, that is, unless one decides that the selection of Haynsworth was flawed from the start.

A bigger factor was bad luck. Haynsworth's chances for confirmation were dearly hurt when Senator Everett Dirksen, the Republican minority leader, died on September 7, only three weeks after Nixon's announcement of the nomination. Senator Hugh Scott, who replaced Dirksen, and Senator Robert Griffin, the assistant Republican leader, voted against him.

Haynsworth's undoing also stemmed from what Massaro would call ideology. Given the Nixon administration's position on issues and the so-called "Southern strategy" (by which the Republican party hoped to appeal to disaffected white Southern Democrats), Haynsworth was a logical choice. "If the...administration had wanted to choose a judge zealous for civil rights, it certainly would not have chosen Haynsworth. If it wished to choose a judge temperate on civil rights, it might well have chosen him."[25] With civil rights and labor organizations opposed to Haynsworth, these groups could make their views known to Senators from those states in which their memberships counted the most. There, Haynsworth's confirmation became a local issue.

Ideology alone or combined with the hard feelings on the Fortas resignation, however, would probably have been insufficient, Frank believes. The opposition needed Republican Senators to go over the fifty-vote line, many of whom were less likely to be affected by the ideological concerns of labor and civil rights groups. Birch Bayh, the leader of the opposition to Haynsworth in the Senate, therefore looked for another way to block the nomination. "From the standpoint of one wishing to defeat a major nomination, his tactics were flawless. First and foremost, he raised the doubts, and then he kept them alive." And the doubts were about Haynsworth's participation in the Darlington and Brunswick cases where, arguably, he should have disqualified himself.

And doubts about ethics had been central to the calls for Justice Fortas's resignation. As with Fortas, Frank believes, a frontal assault would not work, "so recourse had to be taken to character assassination."[27] Doubts over ethics made it easy for those with ideological doubts to engage in "political retaliation, a sort of legislative murder [of Haynsworthj in response to an executive assassination [of Fortas]," given their bitter memories of Fortas's resignation a few months earlier.

Frank believes that the Senate treated Haynsworth shabbily, a view that does not derive from agreement with Haynsworth's constitutional views.

Frank considers the Clement F. Haynsworth, Jr., Federal Building in Greenville, South Carolina (Haynsworth's home town) to be "an extraordinary but unanimous apology in stone from the Congress of the United States for having traduced the character of a good man."[28]

Accordingly, Frank seems to prefer, within limits one supposes, a role for the Senate in confirmation proceedings which stresses "only the quality of a Court nominee," a measure which he acknowledges comes from "a world in which we once lived but do not now." But he also notes that Supreme Court judging may have become "too important to be left to the merely professionally able."[29] Republicans and Democrats have occupied both sides of this issue during the last 25 years, but never the same side at the same time.

As noted, prior to the defeat of Judge Haynsworth, the only previous nomination to the Court in the twentieth century to fail in the

Senate was Judge John J. Parker's in 1930. The struggle over his nomination is the subject of The NAACP Comes of Age by Kenneth W. Goings.[30]

The title accurately portrays the theme of the book. For Goings, the most important result of the opposition by the National Association for the Advancement of Colored People to Parker was not his defeat but the impact on the organization itself. First, because the NAACP had recently suffered a major lobbying embarrassment when the Dyer Anti-Lynching bill failed to pass Congress, the successful campaign against Parker reinvigorated the NAACP and solidified "the position of the organization in the eyes of black and white America." Second, members of the NAACP "received valuable experience in lobbying and organizing that helped make future successes possible." Third, the successful injection of race into the confirmation deliberations marked one of the first times since Reconstruction, Goings believes, that race became an issue in national politics.[31] The book is therefore as much a study in the evolution of an interest group as an examination of Parker's confirmation.

In light of Massaro's emphasis on presidential management, the "why-Parker?" question arises. Goings offers little explanation other than suggesting (he calls it "a hint of an answer") that Parker suited President Hoover's purposes. First, a southerner would be replacing a southerner. Parker was a North Carolinian and would fill the vacancy created by the death of Justice Edward Terry Sanford of Tennessee.[32] Second, "the Republican party viewed [Parker] as a valuable component in its plans to build a lily-white party in the South to challenge the lily-white Democrats."[33]

It is entirely possible that had these been Hoover's only motivations and had the only opposition to Parker come from the NAACP, he would have been easily confirmed. But another way of looking at the Parker fight is in the wake of Hoover's nomination of Charles Evans Hughes as Chief Justice only three months before. While the Senate approved Hughes, few anticipated the depth of the opposition that would develop. The debate was so caustic that the 26 negative votes (with 18 Senators not voting) seemed almost anti-climactic. (One of the negative votes was cast by Senator Hugo Black of Alabama, who would join the Hughes Court seven years later. Black also voted against Parker.)[34] Senator Robert LaFollette had said, "We are put upon notice by the action of the Supreme Court itself that in passing upon the nominations of members of that court we are filling the jury box which ultimately will decide whether there is to be effective regulation and control of the great organizations of capital in the United States."[35] In choosing Hughes and then Parker, Hoover was "foreshadowing the 1936 impasse between Court and Congress, as well as F.D.R.'s crusade of 1937 to bring the judiciary into line with the basic necessities of the modern state."[36] In short, Parker was viewed ideologically by Republican insurgents and Democratic liberals as being insufficiently progressive on labor and other matters, given the urgencies of the day. The campaign which had warmed up on Hughes was able, barely able, to push Parker aside, with 49 votes cast or paired against him on May 7.

Goings hints that Hoover may have had some reason to question Parker's professional qualifications. Parker apparently had been considered for Attorney General the previous year, and Hoover asked Justice Harlan Stone for an assessment. Goings reports that, in Stone's view, his appointment to the court of appeals during the Coolidge administration had been a "surprise" but that his work had been received favorably. Goings then reprints the following part of Stone's assessment:

However, in a sentence Goings does not include, Stone also stated, "He is a man of vigorous, attractive personality, is said to try cases very well and, on the whole, made a favorable impression on me as a man of character and ability."[38] William D. Mitchell, the Solicitor General, received the appointment instead of Parker. In fact, whatever doubts Stone may have had about Parker's suitability to be Attorney General would not necessarily carry over to his suitability to be an Associate Justice of the Supreme Court. The qualities desired in the two positions are not entirely the same.

Significantly, perhaps, Stone later went out of his way to express to Parker his unhappiness with the treatment he received in the Senate on his Supreme Court nomination.

Stone had already written his sons that Parker was "the unfortunate victim of the circumstances which have developed this issue, for he is really a very decent sort of a chap."[40]

Stone may have been somewhat sensitive about his relationship with Parker. When a gossip book about the Court was published in 1936, the authors asserted, "When Justice Sanford died, Stone had warned Hoover against the appointment of John J. Parker...."[41] As Stone wrote Parker in January 1937,

Years later, Parker repaid Stone's confidence when he offered a generous assessment of Stone's constitutional jurisprudence.

There was irony in Parker's praise of Stone. The words within the second and third pairs of quotation marks were those of Justice Owen J.

Roberts, who was Hoover's safe choice for Sanford's seat after Parker was defeated.

Parker himself held out hopes for another appointment to the high court at a later time, Goings records. In a letter to his brother in late May 1930, he predicted, "I believe that eventually I shall be appointed to the Supreme Court and confirmed." And at least through 1953, his name was put forth for consideration each time a vacancy opened on the Court.[44] Indeed, Goings might have noted that Justice Felix Frankfurter thoroughly researched and evaluated Parker's appeals court opinions at the request of President Franklin Roosevelt in early 1941.[45] Parker's name may have been on a "short list" at the White House to replace Justice James C. McReynolds. The McReynolds seat, however, went to Senator James F. Byrnes.

Unlike some commentators,[46] Goings does not believe the Senate's rejection of Parker (or the refusal by a later President to nominate him again) was a mistake. The Senate's verdict on his record was accurate. "One wonders if Chief Justice Warren would have been able to get a recalcitrant Parker to agree to a unanimous decisson" in Brown v. Board of Education in 1954, Goings poses.

Being on the winning side in 1930 brought unintended consequences for the NAACP, Goings concludes. It meant that the NAACP was able to energize itself as a major force for political, economic, and social equality, and a significant player in other Senate confirmation conflicts.

Those later conflicts included Judge Robert Bork's nomination to the Supreme Court in 1987, a move opposed in coordinated and unprecedented ways by virtually every civil rights organization in the United States. The conflict over Bork is the subject of Ethan Bronner's Battle for Justice,[48] one of several books about an event which will surely tint judicial selection well into the twenty-first century.[49]

Unlike some accounts of the Bork affair, Bronner's comes as close as seems humanly possible to being factual and nonideological in its approach. As a story, it is a marvelous synthesis of an array of decisions, conversations, documents, moves, and counter-moves. It is also an example of excellent journalism. Bronner's sources include the obvious printed materials plus interviews with Judge Bork, members of his family, and others in a position to offer first-hand accounts. Most of the sources are credited by name in the "Acknowledgements."

If one applies the Massaro framework to the replacement of Justice Powell, there was the obvious problem of the ideological difference between the President and the majority of the Senate. Powell retired only six months after the Republican party lost its six-year control of the Senate--a period during which President Reagan had successfully replaced Justice Stewart with Judge Sandra O'Connor, Chief Justice Burger with Justice Rehnquist, and the latter with Judge Antonin Scalia. A problem of timing also existed, even though Reagan was in his third, not fourth, year of his second term. By mid-1987, the Reagan Presidency had clearly been weakened by disclosures from the Iran-contra affair. Moreover, Attorney General Meese was preoccupied with conflict-of-interest accusations. Success would therefore depend on presidential management, and Bronner's narrative reveals weaknesses in this category.

For example, Bork’s supporters gravely underestimated the nature and extent of the opposition to Bork. The nomination had hardly been announced before Senator Edward Kennedy fired one of the opening shots.

According to Bronner, Bork and William Ball (White House congressional liaison) thought Kennedy's words were "such a departure from tradition and such a distortion of the nominee s record as to be of no consequence. They shrugged off the speech as the ravings of a desperate politician. Kennedy, they thought, had blown it. They were dangerously wrong in their assessment."[51] The campaign against Bork briefly took on the intensity of the antiwar movement of the late 1960s and early 1970s. Indeed, many of those prepared to "block Bork" had come of age politically at that time.

Second, Bronner believes that Bork did not prepare carefully, or was not properly prepared, for the hearings before the Senate Judiciary Committee. As one supporter confessed, "We had just seen what Ollie North had done, and we figured Bork is a lot smarter. He'll run circles around those guys." That sentiment played into the hands of Bork's foes, since anything less than a stunning performance in committee would work against his chances.

Third, conservative interest groups, the obvious force to counter attacks on Bork from the left, either sat on the sidelines altogether or fell short in marshaling their members. This was especially important since the grass-roots campaign the public witnessed was largely against the nomination.

Curiously, substantial opposition should have been expected, Bronner maintains, since that had been one of the factors which argued strongly in favor of Scalia's being selected in place of Bork in 1986 when Chief Justice Burger retired.

Bronner is convinced that the effects of the fight against Bork will persist. Hard feelings may have inspired some of the negative campaigning during the 1988 presidential election. Moreover, Presidents will think twice before putting forth Supreme Court nominees who can be characterized as advocating a broad "New Right" agenda. Aside from what Bork might have brought to the Court, Bronner sees a tragic aspect to the defeat in Bork's

This was a message Bronner believes that Bork never conveyed in an understandable and persuasive way--the message that "Americans have relinquished the power of self-definition to the courts."[53]

Personnel

"The good that Presidents do is often interred with their Administrations. It is their choice of Supreme Court Justices that lives after them."[54] Three Justices, Taft, Black, and Rehnquist--one of a bygone era, one of the modern period, and the third a member of the present Court--are the subjects of recent volumes.

Interest in prominent figures of one day normally persists only if their lives contain meaning for later generations. Some two decades have passed since Justice Hugo Black completed his 34 years of service on the Supreme Court, but his memory endures. Indeed, a study of the modern Supreme Court cannot be undertaken without a thorough understanding of Black's life and work. First, his intellect and legacy have been entwined with American constitutional development at least since President Roosevelt named him to the Bench in 1937. At his death in 1971 Black had served with almost one-third of the total membership of the Supreme Court since 1789. After an expanse of 34 years, it is easy to forget how his appointment at the outset was tarnished by the revelation (after he was sworn in as a Justice) of membership in the Ku Klux Klan and how he seemed so ill prepared for the tasks he faced that Justice Stone asked Professor Felix Frankfurter at the Harvard Law School for help in tutoring the new Justice.[55]

Second, Black was identified with most of the distinguishing characteristics of the Supreme Court during the period in which Hughes, Stone, Vinson, Warren, and Burger were Chief Justices. One outstanding characteristic was the rise to prominence of civil liberties and civil rights as key constitutional issues. Of the 160 cases the Court decided in 1935-1936, for example, only two involved non-property issues in civil rights. By 1960-1961, of the 120 decisions in which opinions were rendered dealt with the subject. That the Justices would become entangled in the most implacable of these questions was not surprising. What distinguished the modern Court was not its involvement but its responses. Black played an important part in the nationalization and standardization of constitutional rights. Few Justices have seen as many of their dissenting positions become the law of the land.

Third, Black articulated a judicial philosophy which provides a useful starting point for any study of the Court and its decisions. His philosophy stood in contrast to that of Felix Frankfurter and, later, John M. Harlan. The divergent approaches reflected in their thinking help to explain the theoretical tensions which continue to beset the Court. Fourth, in some respects Black was not completely of the Court he so strongly influenced. If he differed from colleagues such as Frankfurter and Harlan, he also differed from Justices such as William 0. Douglas and William J. Brennan, Jr. He could chastise in the strongest terms the latter Justices' defense of liberties which Black felt had not been revealed with sufficient explicitness in the Constitution. In his dual concern with protecting constitutional liberties and limiting judicial power, one suspects Black would have agreed with Chief Justice Marshall's self-evaluation that he had "never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required."[56]

As edited by Tony Freyer, who contributed the introductory essay, Justice Hugo Black and Modern America[57] is a comprehensive look at Black's life and work on the occasion of the one-hundredth anniversary of his birth in 1886. The contents originally appeared as two special issues of the Alabama Law Review in 1985 and 1987.[58] Reprinted in book form, the articles can now enjoy the wide audience they deserve. They supplement at least five earlier symposia on Justice Black published in various law reviews at different intervals of his judicial career.

The book is in two parts, the first covering Black's years in Alabama and the United States Senate (1886-1937), and the second his years on the Supreme Court (1937-1971). Counting Freyer's essay, there are 16 articles in all Authors include Justices Brennan and Arthur J. Goldberg, plus several scholars who have written their own books on Black: Virginia Van der Veer Hamilton,[59] Irving Dillard,[60] Gerald T. Dunne,[61] and Howard Ball.[62] Norman Redlich's piece is an imaginary interview with Black upon reaching the one hundredth milepost, as inspired by a conversation Redlich had with Black on his eightieth birthday.[63]

One of the most helpful parts of the book is the bibliography prepared by Cherry Lynn Thomas and Jean McCulley Holcomb on Black's Court years. Hardly anything seems to have been omitted. It includes a summary of the Court's holding in each case in which Justice Black wrote the majority opinion, plus a listing of all of Black's separate opinions, concurring and dissenting. Then follow lists of books and articles by and about Black, including lists of reviews of the books in legal and general periodicals. Aside from the perspectives on Black which the essayists present, the bibliography alone justifies publication. It should be the beginning point for anyone venturing into a study of Black. One only wishes it included his Alabama and congressional years as well.

Tinsley E. Yarbrough's Mr. Justice Black and His Critics[64] is the product of an interest in Black which spans some 20 years. Although Black's constitutional jurisprudence has long been the focus of scrutiny and criticism, as the bibliography in Justice Black and Modern America attests Yarbrough's book is the first exclusively to assess the arguments raised by those who found fault with one or another aspect of Black's opinions.

The criticisms are many. As Yarbrough says, Black's jurisprudence found a ceiling as well as a floor in the Constitution, an approach which meant that the government sometimes won in contests against the individual and sometimes lost. That approach does not satisfy those who believe that judgments are authoritative and will last only if grounded in a theory of justice. Others accused Black of believing in a mechanical or a self-interpreting Constitution. Sometimes critics said he read too much into the Constitution, especially in his first two decades on the Bench. Later, other critics said that he read too little into the document, or that his method of deciding cases produced arbitrary results.

Yarbrough, for one, believes that "early as well as late in his career, Justice Black was essentially consistent in both his approach to the judge's role and construction of specific constitutional provisions and that his interpretations are generally well grounded in the Constitution's text and history."[65] Still, he insists he has not written an apology for Black, but has simply turned the tables on the critics--to assess their own assessments. Whether one accepts Yarbrough's analysis of Justice Black's critics, one thing is certain: probably in no other single book is there a more readable and thorough analysis of Black as a constitutional positivist.

To understand the critics, one must first understand the subject of criticism. The volume contains a systematic review of Black's thinking on the "total" incorporation of the Bill of Rights into the Fourteenth Amendment, a hallmark of Black's public thinking at least since Adamson v. California, and his private thinking as early as 1939.[66] Contrary to the prevailing understanding of Black, Yarbrough concludes that Black found the source of the incorporation not in the due process clause, but in the moribund privileges and immunities clause of the Fourteenth Amendment. There is also an extensive review of Black's absolutist approach to the guarantees of the First Amendment, his more restrictive construction of the equal protection clause of the Fourteenth Amendment, and his flexible approach to the Fourth Amendment's protections against "unreasonable searches and seizures."

Since Black, as a positivist, believed that principal responsibility for lawmaking lay with the people's representatives and not their judges, Yarbrough sees in Black's jurisprudence an attempt to find a workable balance between popular government and limits on the people's government. Black searched for "constitutional constructions which were compatible with plausible readings of language and history," Yarbrough concludes, "and thus consistent with his conception of judicial review, yet restrictive of judicial choice, and thus compatible with democratic principles."[67]

Being the target of serious critics is a sign that one has thoughts others deem worthy of consideration. As a leading figure in Supreme Court history, Justice Black "endures" because his ideas still matter. Yet, it is a measure of what constitutional law and the role of the Senate in reviewing nominees to the Supreme Court have become since Black's death that, in all probability, a nominee today (other than, perhaps, someone appointed, as Black was, from the ranks of the Senate) espousing a constitutional jurisprudence like Black's would be defeated.

William Howard Taft is another figure in Supreme Court history whose legacy, particularly in judicial administration, remains important. Among eminent public officials, Taft is unusual in that virtually all of his adult life, from age 25 until his death at age 72, was spent in public service. The exception is an eight-year gap between 1913 (when he left the White House) and 1921 (when President Harding named him Chief Justice). This is the period of Taft's professional life generally glossed over by biographers, aside from references to his professorship at Yale and time spent on the lecture circuit. Students of Taft and of this period in American political history should therefore be pleased that James F. Vivian has edited a volume[68] containing the newspaper columns Taft wrote for the Philadelphia Public Ledger between November 1, 1917, and July 5, 1921.

It was Cyrus H. K. Curtis of the Curtis Publishing Company who created this literary opportunity for the former President. For an annual stipend of $10,000, Taft agreed to submit one column per week, although events sometimes pushed him into writing more frequently. Most of the columns dealt with the World War, negotiations over the League of Nations, ratification of the Nineteenth Amendment, and the presidential campaign and election of 1920. But other columns bear on issues the Supreme Court faced or issues Taft would confront as Chief Justice.

For example, a column of May 9, 1918, lauds enactment of the Sedition Act, about which Taft approvingly noted, "The mere expression of treasonable sentiment can be promptly punished with severity...."[69] The column for June 20 attacks critics of the Supreme Court's decision in Hammer v. Dagenhart,[70] which struck down Congress's Child Labor Law as an abuse of the commerce power. "The Court says the law invades the function of the states. Why does this reason not satisfy the complainants?" Taft queried. "In matters in trusted to the states by the Constitution, we must look to the states for proper laws and their effective enforcement. To do otherwise is to confess our national system a failure."[71] Shortly after becoming Chief Justice, Taft and the Court faced a second national statute to eliminate child labor, this time passed under the taxing power. In Bailey v. Drexel Furniture Company,[72] Taft spoke for the majority: "The case before us cannot be distinguished from that of Hammer v. Dagenhar4" the Chief Justice declared. "Grant the validity of this law, and...the word 'tax' would be [used] to break down all constitutional limitation on the powers of Congress and completely wipe out the sovereignty of the States."

Other columns reflected Taft's interest in judicial administration and the integrity of the courts. There was praise on June 20,1921, for a decision by the Colorado Supreme Court invalidating that state's provision for the recall of judges. In a column on November 22, 1920, he sharply attacked inefficient systems of criminal justice in the states. "Delay in prosecution is the great refuge of criminals," he asserted. Moreover, too much care was taken to avoid convicting an innocent person.

Perhaps the most interesting piece appeared on May 20, 1921, on the death of Chief Justice Edward Douglass White, the man Taft would soon succeed. Although generally a review of White's long career, Taft's column reflected on the nature of the office White held.

Taft applied the description to the careers of both White and Chief Justice Marshall. Shortly, he would aspire to the same standard.

Taft was the tenth Chief Justice. William H. Rehnquist is the sixteenth. Unlike all but two of his predecessors, Rehnquist was already an Associate Justice when he was appointed to the center chair, and while he has been Chief only since 1986, his total service on the Court now surpasses 20 years. His views have become the focus of at least two book-length studies, the more recent being Sue Davis's Justice Rehnquist and the Constitution.[75]

Books about Supreme Court Justices commonly fall into four categories. The longest books are usually biographies covering virtually every aspect of the subject's life, even though the Court years may be a major part of the work. Henry F. Pringle's study of Chief Justice Taft falls into this group.[76] A second type confines itself mainly to the subject's judicial decisions, normally stressing constitutional doctrine and jurisprudence. Tinsley Yarbrough's book on Justice Black, discussed above, is an example. A third category places the views of the Justice in a larger political and social context. Consider, for instance, the collection of studies by G. Edward White in The American Judicial Tradition.[77] A fourth type looks at the members of the Court statistically and comparatively as a way of relating the ideas of one justice to the others. The focus is on votes for or against certain values, rather than on the substance of cases and the progression of doctrine.[78]

Davis's is primarily of the second type. She begins with the appointment of Rehnquist to replace Justice Harlan in 1971, and considers exclusively his constitutional jurisprudence as reflected in judicial opinions through June 1986. The goal is to lay before the reader a systematic analysis of the judicial values of William Rehnquist. Generally, her analysis is evenhanded, although the final pages of the book leave no doubt that she rejects those values.

Rehnquist must be understood as a legal positivist, she believes. Legal positivism forges common ground with Justice Black, with the conspicuous difference that the latter's positivism usually led him to very different conclusions. The legal positivist sees the legislature as the principal lawmaker, with judges having a reduced role to play. Legal positivism also means that the authority and legitimacy for law flow from its enactment by the people's representatives, not from the law's compatibility with moral values which exist outside the law. Coupled with positivism is a particular ordering of judicial values. For example, Davis finds that Rehnquist places a "preeminent" value on federalism, with "the theme of state autonomy" running "throughout his opinions." Indeed "the value that Rehnquist assigns to federalism is so high that it abrogates the prescription for a minimal role for the judiciary."

Subordinate to federalism are rights of private property--that is, the right of the owner of property to be free from undue regulation by government, especially state governments. At the bottom of the hierarchy are other individual rights such as freedom of speech and protections for persons accused of crimes.[79] The puzzle is why Rehnquist does not place all individual rights, including those of property, on the same level.

A right entails a corresponding obligation on another. In a democratic political order, a right usually means a restriction placed on the majority in the interest of the individual or a minority of the people. If one values law because it flows from the people, why not then make all individual rights equally subordinate? The answer cannot be that some rights but not others find explicit mention in the Constitution which is the ultimate law. While this fact neatly explains Rehnquist's position in cases like Roe v. Wade,[80] it does not explain why, among rights which are mentioned, he prefers some (property) over others (free speech). She offers several possible explanations. First, Rehnquist may not believe that the Fourteenth Amendment brings the provisions of the Bill of Rights, including the First Amendment, squarely to bear against the states. Second, he may believe that the Framers valued property rights more than other rights, although that preference is not evident from the text of the Constitution itself. Third, he may believe that property rights are more important because they promote stability in society.

Scholars probe judicial opinions and other sources for clues about a Justice's values. Such intellectual explorations would be little more than mental exercises were those values not translated into public policy when cases are decided. The unarticulated assumption of studies like Davis's is that Justices are not merely legislators in judicial garb, voting this way or that to further a particular agenda. Rather, the assumption is that judges are indeed different from legislators not because they lack preferences but because, first, they are not obliged to reflect popular will and, second, they routinely speak the language of the fundamental values of the political system. The legitimizing force in the legislative chamber is 51 percent of the votes. In the appellate courtroom it is reasoned judgment, wrestled from an authoritative source such as a constitutional or statutory provision. Whether the subject is Justice Black or Chief Justice Rehnquist, ideas are studied because they are supposed to matter. Years hence, someone may well publish a book on "Chief Justice Rehnquist and His Critics." Davis's book will be one of the sources, Tinsley Yarbrough's book the model.

The Past

In neither the Congress nor the Presidency does the past reside in the present to the extent it does at the Supreme Court. The Court of the 1990s is clearly different from the Court of the 1790s, yet past generations have left landmarks which remain. For the Court those landmarks consist mainly of precedent--the gloss earlier Justices placed on the Constitution. Preeminent among the Court's traditions--indeed, the thing which sets it apart from the courts in most countries of the world--is judicial review. And in most texts on American constitutional law, Marbury v. Madison,[81] is the leading case.

Robert Lowry Clinton's Marbury v. Madison and Judicial Review[82] is a significant examination of how the relation between the Court and the other agencies of the national government, especially Congress, has evolved during different periods in American history. Publication is timely. The last decade has witnessed widespread debate about judicial review on at least two fronts: first, the proper approach the Supreme Court should employ in interpreting the Constitution, and, second, whether and to what extent Supreme Court decisions should be binding on the rest of the political system.[83] Broadly described, the volume is a study in myth-making and in the separation of powers. The point of Clinton's study is that the Marbury of contemporary constitutional law is not the Marbury of history, that scholars need to do much "unlearning" if they are to understand the case correctly, and that fundamental change is needed if the political system is to rest on a sure constitutional footing.

Before, during, and after Marbury, Clinton believes that a generally agreed-upon and limited view of judicial power existed: that the federal courts could invalidate acts of coordinate branches of government with finality only when the acts violated constitutional restrictions on judicial power. Of course, this was what happened in Marbury: the Court invalidated part of an act of Congress which intruded on the judiciary's Article III functions. At variance with the common view, Clinton does not see Marshall's decision as a clever way off the horns of a political dilemma, no matter how great the feud between Federalists and Democratic Republicans during President Jefferson's first term.

This reading of the case is strikingly narrow and differs from the contemporary interpretation that authorizes courts to strike down any act of Congress or of the executive which the judges find to be in violation of the Constitution. Furthermore, under the contemporary interpretation a decision of the Supreme Court is supposed to be "final" until changed by the Court or by amendment of the Constitution, a position the Court itself articulated in Cooper v. Aaron.[85] "[H]anded down to subsequent generations in a manner not unlike that of Plato's 'noble lie'...the judicial mythology embedded there has served to authorize small groups of judges to preempt other organs of government in deciding fundamental constitutional questions."[86] Even the term "judicial review" is of comparatively recent origin, Clinton reports, probably having not appeared any earlier than 1910.[87] The mythological Marbury grew out of debates over judicial power during the Progressive era. "By 1903, friends of the Court had elevated Marbury to a status commensurate with the Declaration of Independence!"[88] Even those opposed to the Court's use of judicial review accepted Marbury as the source of the problem. The Marbury of myth developed to counter advocates of legislative supremacy who would have denied courts any review of legislative acts whatsoever.

Clinton is not content with a revamping of history. His conclusions about the evolution of Marbury carry consequences.

Hamilton, after all, in Federalist Nos. 78 and 81 had assumed such impartiality to reside in the "power of judgment." Therefore, those who would import values into the Constitution because neutrality and objectivity cannot be achieved undercut judicial review itself.

In place of the current understanding of judicial review, Clinton proposes "functional coordinate review" which would confine judicial review to the invalidation of laws of a judicial nature, as exemplified by the facts of the Marbury case. Functional review in turn leaves a "derivative discretion in Congress--and, to an extent, in the president--to disregard judicial decisions which set aside laws on the basis of constitutional provisions not addressed to the courts."[90]

Clinton finds certain advantages in his theory. First, it is consistent with the text of the Constitution and with his understanding of the Framers' intention regarding the judicial power. Second, the theory is consistent with judicial decisions of the founding period. Third, it "satisfies the demand for objectivity inherent in a conception of courts as organs of government exercising judgment rather than will. It is neutral with respect to particular results." Accordingly, Congress can pursue conservative or liberal policies, and, so long as it does not encroach on policies entrusted to the courts, no court would have the authority to invalidate the legislature's preference. Clinton uses three examples. The Supreme Court would have no authority to interpose its views were Congress to require racially segregated schools for the District of Columbia or to ban the movement in interstate commerce of goods made with child labor. However, were Congress to forbid courts from excluding coerced confessions from trials, the judiciary could properly invalidate the law because the statute not only contravenes the Fifth Amendment but is directed to what courts do. The decision in the third example would also be final because trial courts would be bound to follow it. The only legislative recourse would be impeachment.

Without doubt, coordinate review would generate more public debate on the constitutionality (as well as the wisdom, one imagines) of various policies. Were it to be adopted, the electoral process itself might become the ultimate validating authority on which interpretation was "correct" or at least to prevail. Yet, one reels from the prospect of political anarchy. Instances would arise in which the lines would not be clear, when opposing groups would use the ambiguity to partisan advantage. "I do not think so," Clinton replies, "but even if it does, a measure of uncertainty in constitutional matters is healthy."[91] For him, the notion that finality must reside somewhere is also myth, an attitude unknown to the Framers. The dilemma with the present version of judicial review is that it requires acquiescence in the decision, no matter how great the flaw. By contrast, Clinton's coordinate review "allows the affected department the discretion to disregard the Court's decision if its own interpretation of the Constitution differs from that of the Court."[92] What would be required would be a principled explanation by the department defending its interpretation as correct.[93] The recommended overhaul would add a new dimension to separation of powers, to be sure, but would make governing at the national level even more difficult than it currently is.[94]

Clinton's book is revolutionary--both in its message for current scholarship and its prescription for statecraft. However, even agreement with Clinton's reading of history does not necessarily lead to the constitutional results he advocates. The Constitution in practice has long been different in so many ways from the words of the Constitution (and of the knowable intent of those who wrote it). As Robert H. Jackson characterized American constitutional interpretation,

Nonetheless, Clinton has challenged the status quo. His book is one no student of the Court can prudently disregard.

Process

The Court's decision making procedures as well as its past shape the outcome of cases. How the Court operates internally is important since the Supreme Court has always been a collegial body. Unlike most intermediate appellate courts in the state and federal judicial systems, all justices typically participate in all decisions. Glimpses of the process promote understanding, and usually appreciation, of the institution.

Such glimpses are the distinguishing mark of The Ascent of Pragmatism by Bernard Schwartz,[96] an author whose recent books have also provided scholarly insight into the formation of the Court's major decisions of the past four decades.[97] The focus of this latest volume is the Burger Court.

Of the sixteen Chief Justices, Warren Earl Burger's tenure surpasses all but three. Only Chief Justices Marshal, Taney, and Fuller served longer. Of the eight Chief Justices appointed thus far in the twentieth century, Burger served longer than any. Longevity alone makes the Burger era an appealing one to study.

But there is more. The Burger years followed the Warren years. Beginning in 1953, Earl Warren's tenure as Chief Justice was one of the most active and remarkable in American history, particularly so after Justice Goldberg's arrival in 1962 which produced a nearly certain minimum of five votes for positions Warren advocated.[98] Hardly an aspect of life went untouched by landmark decisions on race discrimination, legislative apportionment, and the Bill of Rights. Warren's Court launched a revolution in constitutional jurisprudence.

The Court became an issue in the presidential election of 1968 to a degree not witnessed since 1936. Republican candidate Richard Nixon ran against the record of the Warren Court and promised, if elected, to change the Court by strengthening the "peace forces as against the criminal forces of the country."[99] Nixon's appointment of Burger in 1969 therefore seemed to fulfill his campaign pledge against judicial activism. Given the new Chiefs record on criminal justice, he seemed made to order for the new administration. Little wonder that commentators awaited major change.

Remarkably, the Court under Chief Justice Burger did not overturn outright a single major decision of the Warren Court. The persistence of the Warren Court's jurisprudence during the period is all the more noteworthy when it is remembered that by 1986 when Burger retired, only three members of the Warren Court were still sitting, and of the three only Justices Brennan and Marshall had been closely identified with the Warren Court's major accomplishments. Although some of the Warren Court's landmark rulings on criminal justice were restricted, especially with respect to the exclusionary rule,[100] the Burger Court practiced its own kind of judicial activism, as seen in cases involving race and gender discrimination and abortion.

Moreover, with the possible exception of William Howard Taft, Burger was the most active Chief Justice outside the Supreme Court. He treated his office like a pulpit from which he campaigned energetically for changes in legal education, professional standards for bench and bar, criminal sanctions, prisons, and the administration of justice. By virtually all accounts, the federal judiciary's relations with Congress improved substantially after 1969, and most of the credit for that fairly seems to lie with Burger. Any one of these developments offers ample reason to study the Burger period.

Schwartz's book examines the Court in three ways. The volume opens with a review of the personality and ideas of each Justice[101] followed by some generalizations on decision-making procedures, both old and new.[102] The most significant observation is additional evidence of the increased reliance by almost all members of the Court on their clerks both in making recommendations on which cases to accept for review and in writing opinions. Collectively Schwartz refers to the clerks today as "the Junior Supreme Court."[103] This development contradicts the observation made long ago by Justice Brandeis that "the reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington 'who do their own work"[104]

However, Chief Justice Rehnquist recently reported that "the individual justices still continue to do a great deal more of their 'own work' than do their counterparts in the other branches of the federal government."[105] Schwartz's finding and the Chief Justice's observation may not be in conflict. That the clerks do more does not necessarily mean that the Justices do not do more of their own work than those occupying comparable positions in the executive and legislative branches. Yet the finding is ironic since it was Rehnquist as a young attorney in 1957 who made an issue of the role of the clerks.[106] And if some or most of the Justices have delegated much of the case-selection work (admittedly a burdensome task) to their clerks, this fact would seem to undercut some of the arguments made against the proposal of the group headed by Professor Paul A. Freund in 1972 to create a National Court of Appeals. That court would have done most of the screening of cases for the Supreme Court, referring the most important ones to the Justices and disposing of the rest itself.[107]

The concluding chapter is an overview of the major characteristics of the Burger Court's jurist prudence, focusing on changes which might have occurred which did not. It is from here than the book gets its name. Schwartz concludes that the Burger years were marked principally by a pragmatic approach to constitutional issues rather than a result-oriented decision making. The latter had characterized the Warren Court. In part the pragmatic approach evolved, he finds, because of the dominant role played by four or five Justices at the Court's "center," between two Justices on the ideological left and two on the ideological right. The approach also evolved because, except for the issues of gender discrimination and abortion, the Burger Court was largely faced with cases involving application of doctrine inherited from the Warren Court. Much of this business by its nature meant that little new ground would be broken; instead, the Court had to decide whether to extend a ruling, and if so, how far.

The middle and longest part of The Ascent of Pragmatism is an account of the Justices' deliberations in conference on many cases decided between 1969 and 1986. As Schwartz explains,

There seem to be at least two problems with this admittedly prized source. First, in contrast to the variety of sources upon which Schwartz draws in other parts of the book, his reconstruction of conversations at the conference appear to come from a single source: "the notes made by a Justice who was present." This seems to mean that all the notes upon which he relies were the notes of only one member of the Court, not that for each conference conversation he reconstructs he relied on the notes of a single Justice (that is, Justice "A" for conference "A," Justice "B" for conference "B," and so forth). While the source for the notes Schwartz uses maybe accurate, it is also possible that they are not. The notes after all were made by a conference participant. It is surely difficult to write a complete account as the meeting proceeds. One must therefore have to rely partly on memory in recording and reconstructing exchanges. Are positions accurately stated and correctly attributed? Have points been omitted? Are the inaccuracies and omissions which might be present consequential? Even minutes for a meeting are ordinarily written by a secretary who takes notes but who does not participate. And minutes are subject to review at a later meeting by all who were present at the first.

Second, how can the acknowledged benefits of confidentiality at conference continue to be enjoyed when at least one Justice makes notes of everyone's statements and views and shortly makes them available to someone (like Schwartz) who was not present? Access to memoranda and other materials which reveal the Court's deliberations has been controversial at least since 1956 when Alpheus Mason's biography of Chief Justice Stone was published.[109] Few today would argue that such documents should be forever closed. Mason's book appeared about a decade after Stone's death; the controversy arose mainly because Justices Black, Reed, Douglas, and Frankfurter (all of whom had sat with Stone) were still on the Bench. By contrast, Schwartz's volume was published only four years after Burger retired, giving the confidentiality of the later Burger conferences a short run.

One wonders what the impact of publication is on the members of the Court as they attend conferences each week. Are the thoughts they offer privileged now but not in four years? And if not for four years, should they remain