The Judicial Bookshelf

D. Grier Stephenson, Jr.

In April 1788, when Alexander Hamilton imagined the Supreme Court and a national judicial power in Federalist No. 78, he defended the "independence of the judges" as "an essential safeguard against the effects of occasional ill-humors in the society." Of primary concern to Hamilton were "infractions of the constitution" which the anticipated power of judicial review would not only check once they had occurred but perhaps even discourage at their outset. Thus, the separated powers mandated by the Constitution have made judicial independence possible; its shared powers have made occasional breaches of that independence probable and have allowed the federal judiciary to become a partner in governing the nation.

This constitutional dimension of the business of the Supreme Court has contributed mightily to the institution's prominence in American government. Even though the Court performs an important conflict-resolution function--essential in any political system--and even though the great majority of its cases have not raised constitutional questions, the Court achieved the stature it enjoys through its role as chief expositor of the nation's fundamental charter. As then Attorney General Robert Jackson observed on the 150th anniversary of the establishment of the Supreme Court, "Few tribunals have had greater opportunity for original and constructive work, and none ever seized opportunity with more daring and wisdom."[1] Issues which other nations regard as purely political have become legal ones here. Judicial review has made the Court a compelling force in the plan of union the framers devised. The Court's power has c6ntributed to the design James Madison envisioned to overcome the twin difficulties of statecraft: those of "enabling] the government to control the governed" and oblig[ingl the government to control itself."[2] Attempting to resolve issues which divide and perplex the nation, the Court has contributed both symbolically and substantively to the strength and vitality of constitutional government.

The Court occupies a key place in the American scheme of democratic government in spite of professed weakness. "Courts are mere instruments of the law, and can will nothing," Chief Justice Marshall explained in 1824.[3] In answering charges during the debates over ratification of the Constitution that the Court would be too powerful, Hamilton maintained that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."[4] Lacking the "sword" of the executive and the "purse" of the legislature, the Court was to possess "merely judgment." The practicalities of starting up a new government bolstered Hamilton's argument. Since the judiciary's establishment required the consent of both the President and Congress, there could be no Court until the other two branches came into being and acted. Thus, the new House and Senate transacted their first business on April 2 and April 5, respectively, with George Washington's inauguration following on April 30. Legislation creating the Supreme Court and setting February 1, 1790, as the day of its first session was signed by Washington on September 24. Confirmation by the Senate of the first nominees national government followed the other two by nine months.[5]

From practical and constitutional dependency came strength. From the outset, the Justices claimed the duty to interpret the Constitution, taking on the burden of settling disputes the framers had not anticipated or had been unwilling or unable to resolve. Because of the widespread acceptance throughout most of American national history of constitutional interpretation as peculiarly a judicial function, the Court has converted Hamilton's characterization of the judicial power as "merely judgment" into one of the greatest understatements of all time.

Since the Supreme Court matters politically as well as jurisprudentially, it has understandably been subject to continuing scholarly and journalistic oversight. Such scrutiny has been particularly beneficial because it has partially substituted for the direct political accountability provided for the executive and legislative branches, but absent for the federal judiciary. The Court's visibility has consequently been a source of the institution's legitimacy as a check on popular power. As William Howard Taft observed nearly a century ago,

Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subjected to the intelligent scrutiny of their fellow-men, and to their candid criticism...... In the case of judges having a life tenure, indeed, their very independence makes the right freely to comment on their decisions of greater importance, because it is the only practical and available instrument in the hands of a free people to keep such judges alive to the reasonable demands of those they serve."[6]

Recent books about the Court are amply supplied with what Taft called "comment" and "reasonable demands." As with any political institution, study of the Supreme Court is aided by a framework of analysis. Helpful in understanding the Supreme Court are five key elements: political and intellectual environment, personnel, past, process, and product.

The first refers to the governmental system and societal context in which the Court operates. The second includes the individual Justices who decide cases. The third encompasses not only the history of the nation, but the body of decisions rendered by former Justices. The fourth alerts the student of the Court to the manner in which the Court arrives at its decisions, including the role of advocacy and the institution's internal dynamics. Product, the fifth and last element, consists of the Court's current rulings--the end result of the decision-making process--and their acceptance and implementation. Each element is reflected in varying degrees in the books selected for this review article.[7]

Political and Intellectual Environment

The political and intellectual environment influences the selection of Justices who come to the Bench with various values and approaches to constitutional interpretation. The environment also largely determines the kinds of issues at stake in cases presented to the Court for decision. Moreover, the political acceptability of decisions and the degree to which the Court's decisions accomplish their objectives affect the impact of the Supreme Court.

Herman Schwartz's Packing the Courts is evidence of how judicial selection intersects with the politics of the times. The book is not a detached study, nor does the author pretend it to be. "This is not a book written in tranquil recollection of things past," Schwartz acknowledges. "I wrote it while engaged in many of the controversies it discusses, with more in the offing.... This book is about...the conservative efforts to overturn what the courts have done in the past half century on behalf of the constitutional imperative to 'establish justice ... and ensure the blessings of liberty.'"[8] While the subject has been addressed in the periodical literature,[9] this is the first book-length account of the appointment of federal judges at all levels during the Reagan years.

A book with the title of this one prompts a question at the outset. What was so special or different about judicial politics in the Reagan Administration to warrant a book on the subject. Schwartz freely admits that many previous Presidents have tried, often with considerable success, to make the Supreme Court in their image. "What is...almost without parallel," Schwartz responds, is that "the recent court-packing campaign...reaches to so much of the constitutional landscape in such fundamental ways."[10] Other Presidents were concerned about a single issue, as when President Franklin Roosevelt insisted on judges who were sure to validate his economic recovery program. By contrast, Schwartz explains, judicial selection during the Reagan years was designed to advance a broad conservative agenda, including topics such as school desegregation, affirmative action, voting rights, discrimination against the handicapped, school prayer, abortion, antitrust policy, regulation, and criminal procedure.[11] By the second term especially, congressional resistance to some of this agenda "increased the pressure for 'friendly' judges to promote the Reagan Revolution in the legal sphere."[12] Finally, Reagan judicial politics differed in another way: "Except perhaps for the school prayer issue, there is certainly no great groundswell of support for the right's social agenda, as there was for FDR's, TR's, and Lincoln's policies."[13] Schwartz seems to be saying that the voters had twice elected with comfortable margins a President whose views they rejected. Morever, Schwartz might have said that the conservative judicial agenda was as broad as it was because judges had been active on so broad a front. Reagan's court-conscious predecessors had not faced that problem. "Whether they realized it or not, the Justices in [Brown v. Board of Education in 1954] had committed the federal courts to an enterprise of profound social reconstruction."[14]

With it understood that Schwartz is not a disinterested observer, Packing the Courts is an important publication for two reasons. First, Schwartz plainly documents the priority given to ideology in judicial selection in both the first and second Reagan terms. While debates over a nominee's ideology dominated the news in the high-visibility Supreme Court confirmation proceedings of Justice Rehnquist and Judges Scalia, Bork, and Kennedy,[15] most nominations to the district and appeals benches, as customary, attracted no national publicity. For example, one of President Reagan's first appeals court nominees was Richard Posner, whose name came before the Senate in November, 1981. According to Schwartz,

Posner’s confirmation hearing took place on a Friday afternoon, in a joint session with four other nominees, and with only Chairman Strom Thurmond and the conservative Howell Heflin of Alabama in attendance. Posner's part of the hearing took but a few minutes, and he was quickly confirmed without debate. Although few realized it, the court-packing campaign had begun....[16]

By contrast, those nominees who provoked controversy (as in the cases of Daniel A. Manion and J. Harvie Wilkinson, for example) were prominent by their infrequency.

Schwartz's thesis that nominees had to pass the rigorous ideological screening of the President's Committee on Federal Judicial Selection takes on added meaning, therefore, when one realizes the number of judicial seats that had to be filled. By the end of 1988, not only did President Reagan's nominees account for slightly more than half the entire federal bench, but he had been able to appoint more judges than any previous President, surpassing Jimmy Carter, the prior record holder. In describing sixteen of the nominations to the lower federal courts (in addition to the nominations to the Supreme Court), Schwartz thus highlights this significant dimension of the President's appointment power. Nominations to the lower courts are crucial since those courts are effectively the courts of last resort for almost all litigants in the federal judicial system.

The book is important for a second reason as well: its usefulness as a resource.[17] In documenting his thesis, Schwartz cites personal observation and interviews to a degree, but makes his case primarily from secondary sources, including newsletters, magazines, newspapers and official publications. Having gathered together and relied upon information already available in print, he is. open to the "there's nothing new here" charge. Yet, the author has performed a service. The book's 25 pages of notes are a road map, usefully pointing the way for others investigating the same subject.

There is a vast ideological distance between Herman Schwartz and Gary L. McDowell, author of Curbing the Courts.[18] Nonetheless, the two authors occupy at least some common ground: each deplores judicial activism in certain forms and worries about public perceptions of the judiciary. Schwartz was alarmed by the Reagan Administration's efforts to roll back liberal judicial decisions by reshaping the federal courts not only because he disagreed with the political goals of such efforts but because the open politicizing of the bench might impair the public confidence on which judicial authority ultimately depends. McDowell, whom Schwartz characterizes as "one of [Attorney General Edwin] Meese's chief theoretician-assistants,"[19] rejects the activist posture the Supreme Court and other federal courts have assumed during the past half century, which Schwartz admires. McDowell, however, also frowns on congressional proposals to "curb the courts" because they have failed and risk undermining popular respect for the judiciary and the idea of the rule of law.

Since 1790, McDowell believes, the Supreme Court has engaged in excessive activism during two periods: from 1890 to 1937, and from 1954 to the present. The former was characterized by "proscriptive activism," and the latter has been marked by "prescriptive activism." Justices have been "more concerned with natural than with legal justice.... What is constitutional is what the jurist thinks is reasonable or just, and the basis of judicial power is understood to be an active concern for vindicating notions of abstract justice or for advancing a particular jurist's view of what constitutes 'human dignity.'"[20] This departs from the judicial role envisoned by the framers of the Constitution and has enabled judges to "roam at large in the trackless fields of their own imaginations."[21] As Hamilton cautioned in Federalist No. 78, "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." If judicial power, like other forms of political power, is of an "encroaching nature," as James Madison argued in Federalist No. 51, then the courts must be subject to limits. In this way, they can perform their essential functions within a system that trims or prevents excesses.

How does one curb the courts? McDowell contends that "[t]he American political system operates to the advantage of the judiciary." Contrary to Schwartz, McDowell concludes that presidential court-packing schemes "are notoriously ineffective." Likewise, of little help is the congressional impeachment power, and piecemeal congressional attacks on individual court decisions only "treat symptoms at the expense of curing causes." When tried, such measures usually fail for two reasons. First, it is difficult to build political support for an attack on the Court because a decision or even a constitutional theory that alarms one group is bound to please another. No line of decisions gores all oxen. Second, any attack on the Court seems to threaten the constitutional principle of an independent judiciary, as President Franklin Roosevelt discovered in his ill-fated Court-packing plan of 1937. Even judicial restraint, stemming as it does from the Justices' perception of their role, is an "empty reliance."

Instead, what is needed is congressional enforcement of "constitutional restraint." A fundamental approach, aimed not at particular decisions but at the process itself, is in order because 'judicial activism is not so much a case of judicial usurpation as it is of congressional abdication." As a basis for this route to reform, McDowell looks to Article III, which authorizes Congress not only to make "exceptions" to the Court's appellate jurisdiction but "regulations" as well. Congressional resurgence should take the form of legislation constricting rules of standing, the breadth of class actions, the ease of intervention by those not actual parties to a suit, the expanse of consent decrees, and the scope of declaratory and equitable relief.[23]These changes in the Rules of Civil Procedure would reverse the trend from what McDowell calls "concrete standards" to "abstract standards," with the enlarged discretion the latter have allowed.

While well designed to accomplish the objective McDowell has in mind, one suspects that his fundamental procedural remedy for judicial activism might suffer from the same weakness which has defeated most decision-specific measures in recent years. If it is difficult to marshal a majority in Congress against the Court because almost any decision will have its supporters as well as detractors, will there not also be substantial numbers who perceive their interests advantaged by the current rules?[24] Moreover, by allowing judges to do more, rather than less, governing, Congress relieves itself of the burden of making some decisions and retains the courts as a useful scapegoat when the judges "go too far." The success of McDowell's plan ultimately depends on building a majority coalition in Congress in favor of a principle: that there are limits within the Constitution to what judges can and should do and that it is Congress's obligation to enforce those limits by setting additional statutory restrictions on the exercise of judicial power. One wonders whether Congress can be mobilized by a principle unattached to coalitions of powerful interests and whether Congress and the nation have not grown too accustomed to an activist judiciary for that to happen.

In The Limits of Judicial Power, William Lasser[25] would agree with Herman Schwartz that Presidents can change the direction of the Court through appointments, but he would accept Gary McDowell's assessment that the federal judiciary otherwise enjoys ample independence and operates most of the time free of external constraints. Lasser argues that the Court enjoys greater power today than ever before in its history, that it has rushed passed the amber lights of caution many times, and that it seems unlikely to suffer major political setbacks. Lasser ponders the warning issued in 1960 by Robert McCloskey, before the second and even more activist half of the Warren Court. The Court had pushed forward at a rate that McCloskey thought was "perilous and perhaps self-defeating."[26] The Court was runing the risk of repeating its greatest historical blunders. (See the discussion of McCloskey in the section on "The Past" in connection with William M. Wiecek's Liberty Under Law.)

Why then has the Court not been successfully curbed in the years since 1960? Lasser takes as major tests of judicial power the decision in the Dred Scott case,[27] the Court's involvement in the Civil War and Reconstruction, and the Court's challenge to the New Deal. He then posits two questions the book will answer. "First, what do the crises of the past tell us about the Court's strengths and weaknesses as an institution?... By what mechanism did the Court weather its most severe storms, and how can its survival be explained? Second, what does such a study...tell as about the modern era? Did Court-watchers like McCloskey and others misjudge the danger to the modem Court because they misunderstood history, or because the modern era is fundamentally different from the past--or might it be both?"[28]

Lasser believes both that the older Court's power was greater than previously thought and that the limits of judicial power have expanded beyond their former boundaries. In each of the three major crises of history, "the Court's opponents lacked the will, the desire, and the ability to crush the Court." At best, argues Lasser, they wanted to change (or have the Court change) only one or a small number of decisions. "Once they did so, the Court quickly reassumed its accustomed position, paradoxically strengthened by the very weakness of the arguments against it even at its weakest moments." In the main, attacks on the Court were attacks on its decisions, not attacks on judicial power. In this context, the modern Court's political entanglements are "not an aberration, but a continuation of a long-established historical pattern."[29] McCloskey and others were therefore correct in saying that the Court could not for long block the popular will, but were incorrect in concluding that it was dangerous for the Court to try. The "salient fact" is that none of the modern Court's rulings has generated a persistent and massive wave in the public and Congress for reversal. Where that came close to happening, other issues soon appeared to deflect attention away from the judiciary.

Does this mean that the Justices should be unconcerned about their power? Lasser thinks not. Instead, he accepts Justice Stone's admonition in United States v. Butler: "While unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint."[30] That is, "judicial restraint is necessary not because the Court is weak but because it is strong." The Court should avoid issues where decisions might create full-scale crises, "thereby revealing the limits of its political strength." While nothing the Court has done since 1960 has precipitated such a crisis, he gives little guidance on predicting the breadth and depth of public outcry in order to avoid an institution-shattering event. Short of such a calamity, "the storms that swirl around the Court will [not] become severe enough to force it to alter course." The Court's strength therefore makes "the responsible exercise of judicial power.. .so vitally necessary."[31]

Personnel

The interest which accompanies each appointment to the Supreme Court exemplifies the force of individuals on the Bench. Since Washington's day, Presidents, Senators, and others have recognized that Justices do not decide cases in a vacuum, that 'judicial decisions are not babies brought by constitutional storks."[32] The Justices' values and role perception combine to help shape the Court's decisions.

The impact of individual Justices as well as the political and intellectual environment appears clearly in Charles Fairman's Reconstruction and Union 1864-88 (Part Two), which covers the years of the Waite Court.[33] This volume is one of three contributions Professor Fairman made to The Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Part One (Volume VI) appeared in 1971 as one of the first books in the series and covered the years of the Chase Court. A supplement to Volume VII (Five Justices and the Electoral Commission of 1877) was published in 1988.[34]

Given the number of Justices (14) who served with Waite and the variety of issues which confronted the Court at that time, it is noteworthy that Fairman devoted a tenth of the book to the appointment of Chief Justice Chase's successor.[35] Controversy over the nominations of some recent Presidents may have been among the most intense in the nation's history, but no President in this century has experienced the frustration surely felt by President Grant in 1873 and 1874. The President made an offer of the chief justiceship to at least five individuals. By one account he offered it to seven.[36] Of the five, Grant's tenders first to Senator Roscoe Conkling and then to Secretary of State Hamilton Fish were declined. The nominations of Attorney General George H. Williams and then Caleb Cushing met such resistance in the Senate that they had to be withdrawn. Finally, on January19, 1874 (over eight months after Chase's death), Grant sent Waite's name to the Senate. As Fish wrote Robert Schenck on the 19th, "We had 'a time' over the Chief Justiceship.... It has been a hard parturition...." Gideon Welles confided to his son, "It is a wonder that Grant did not pick up some old acquaintance, who was a stage driver or bartender for the place. We may be thankful that he has done so well."[37] The Nation expressed a similar sense of relief in an editorial.

The President has, with remarkable skill, avoided choosing any first-rate man. Mr. Waite stands in the front rank of second-rate lawyers.... But he undoubtedly is a man of the highest character, and has the best possible standing at the bar of his own State.... On the whole, considering what the President might have done, and tried to do, we ought to be very thankful, and give Mr. Waite a cordial welcome.[38]

While the record of every period of the Court contains significant cases, the Waite era (1874-1888) contains a larger number than the relatively short span of years might suggest. The Court confronted and helped to clarify the extent of the state police power (especially with respect to rates), the authority of the national government to protect civil rights under the Thirteenth, Fourteenth, and Fifteenth Amendments, the scope of congressional investigations, and tensions between religious freedom and civic responsibility. It took over a half century to settle the first and almost a century to settle the second and third. The republic continues to grapple with the fourth.

The Waite years were a watershed time in American constitutional law. Particularly regarding the reach of the state police power, the 1870s and 1880s witnessed a debate on and off the Court over the protection of rights. Were the people to look to the polls (that is, to the electoral process) or to the polls and the courts? The Waite Court in Munn v. Illinois[39] chose the former and in the process encouraged creation of the American Bar Association, which campaigned for an invigorated judicial review. When the Court later turned its back on Munn,[40] judicial review itself became a major national political issue for the first time.[41]

Generally, however, the Court was not inclined either during Waite's time or in the remaining 12 years of the century (and even for some years afterward) to extend judicial protection of civil rights in matters of race. A majority of the Justices reflected the dominant opinion of the day that no extraordinary reach of national power was justified in such cases, even with the addition of the Civil War amendments to the Constitution. This attitude seemed especially present in the Civil Rights Cases.[42]

The Court decided these five cases together, each raising the issue of the constitutionality of the Civil Rights Act of 1875, which created a right to be free of racial discrimination in public accommodations. With only Justice Harlan dissenting, the Court invalidated the statute as being unwarranted by the Constitution since it regulated private, not state, action. Solicitor General S. F. Phillips submitted a brief applicable to three of the cases, and Reconstruction and Reunion includes generous excerpts. Fairman concludes, however, that no driving force was present to sustain the Act. The persons whose exclusion had given rise to the litigation were of course not parties to the cases. The Justice Department had shown little interest in enforcement of the law during the preceding several years, because of strong opposition in locales where discrimination in private establishments was most persistent. Moreover, the government "had not built up a strong and persuasive line of reasoning whereby the statute might be sustained.... Oral argument over opposing positions, which normally serves to put the issues clearly in focus, was lacking. The Court was left to its own reflections in deciding an issue which to the parties immediately involved seemed of little consequence, yet which in the future would loom large as a denial of racial equality before the law."[43]

What would have been the impact on the Court (and the nation) had there been a vigorous defense of the statute? Justice Bradley, author of the majority opinion, "had a phenomenally penetrating mind with, however, some blind spots."[44] Fairman recalled former Justice John A. Campbell's attack as counsel on the Louisiana law in the Slaughterhouse Cases and his spirited defense of liberty: "Conscience, speech, security, freedom, and whatever else is essential to the liberty, or is proper as an attribute of citizenship, are now held under the guarantee of the Constitution of the United States." In obtaining four votes (including Bradley's), just one short of a majority, Campbell demonstrated the potential power of an argument. "But nothing of that sort was offered to lift the thought of the Justices in the work now in hand."[45]

Eighty-two years after the Civil Rights Cases were decided and 91 years after Morrison Waite took his seat on the Court, President Lyndon Johnson selected Abe Fortas to take the place vacated by departing Justice Arthur Goldberg. Someone unfamiliar with Fortas's years in Washington might wonder why he has become a biographer's subject. Of the 95 Justices who have completed their work on the Court, only six served a shorter time than Fortas's three years and nine months.[46] Moreover, a sketch of his life would reveal that he had held several administrative posts in the federal government during the 1930s and 1940s, none higher than an assistant secretary in the Interior Department. Otherwise, he was an influential attorney and lobbyist in a city with many of both.

Fortas's career on and off the Court was much more than such a brief outline reveals, however. Not only had he been a prominent New Dealer and Washington lawyer, he was a close, long-standing, and confidential counselor to, and friend of, the President who named him an Associate Justice in 1965. With great disinclination Fortas accepted the position and even then only at the irresistible urging of Johnson.[47] In 1968, Johnson picked him to succeed Earl Warren as Chief Justice. If Johnson had had his way, Fortas would have joined that very small club of Chief Justices who were named from the ranks of Associate Justice. In 1968, the only members were Edward D. White and Harlan F. Stone.[48] Johnson hoped that Fortas, aided by his analytical brilliance and eloquence, would continue the thrust of the liberal constitutional jurisprudence fostered during the second half of the Warren Court. (Fortas very possibly could have served as Chief Justice into the Reagan Presidency; he died in 1982.) When a filibuster in the United States Senate prevented the nomination from coming to a vote and when Johnson reluctantly withdrew Fortas's name, Fortas became the first (and so far the only) nominee for the center chair in this century to fail to win confirmation.[49] Then in 1969 he became the first Supreme Court Justice to resign under fire, giving the new Nixon Administration its second (and unexpected) vacancy on the Court to fill. The controversy over Fortas has since reached well beyond the man himself. It ushered in almost two decades of some of the most rancorous and vituperative debates ever seen over Supreme Court nominees.

Into Fortas's impressive record of professional accomplishments and into the personally tragic sequence of events has stepped Bruce Allen Murphy. Publication of his Fortas: The Rise and Ruin of a Supreme Court Justice has yielded one of the most important and revealing of recent books about the modern Court. The volume also provides insight into national politics during the Kennedy and Johnson Presidencies. As the author of The Brandeis-Frankfurter Connection, Murphy is no stranger to the Court nor to the issues, problems and dangers presented by extra-judicial conduct. Despite years of political involvement while wearing the judicial garb, both Brandeis and Frankfurter have been lionized. Each retired with respect and admiration after a long career. Respectively, they enjoy "great" and "near-great" status. So, the motivating question for Murphy is "Who or what killed the public career of Abe Fortas?"[50]

To write about Fortas and especially to answer that question pose a major challenge for an author. During more than three decades in public life, Fortas touched and was touched by many people and issues. A book about Justices who have spent most of their professional lives on the Bench removed from the rough and tumble of partisan politics of course requires prodigious research. One must have a thorough grounding in the era during which a particular Justice served and must examine and study the judicial opinions, papers and reflections of colleagues as well. With Fortas, one must do all that, and more. Especially when enmeshed in a time when more and more government business was conducted on the telephone, an author must reach wide and far. For these reasons, it is commendable, but not surprising, that Murphy seems to have left few stones unturned. Along with the expected and numerous published sources (including court opinions, congressional reports and hearings, other official documents, newspapers, articles and books), Murphy consulted no fewer than 131 oral history "memoirs" and 54 manuscript collections in at least thirteen different libraries. The documentation, which comprises 87 pages (12%) of the book, also includes citations to dozens of interviews which Murphy conducted with acquaintances of Fortas (including one in 1981 with Fortas himself).

The results are eye-opening in places. While he largely substantiates the findings of the first book-length study of the Fortas affair,[51] Murphy came across copies of documents thought to be unavailable, if even extant. These were the documents Attorney General John Mitchell showed Chief Justice Earl Warren in 1969 after Fortas's short-lived relationship with the Wolfson Foundation was revealed in a story by William Lambert in the May 9 issue of Life magazine. Apparently unknown to others, Warren made copies and stored them with his papers which were later lodged in the Library of Congress. The impression has long been that the documents from Mitchell must have contained additional damaging information which led Warren to pressure Fortas to resign for the good of the Court. In fact, Murphy shows that the documents contained nothing significant that was not already known. But even that was evidently enough for Warren. Fortas apparently got little if any encouragement from the other Justices to remain and ride out the storm.[52]

In tracing Fortas's road to ruin, Murphy concludes that Fortas was the wrong man, in the wrong place, at the wrong time. Does this statement excuse Fortas? While generally a sympathetic volume, Fortas does not pretend to wipe clean actions and attitudes which were plainly mistakes. "It was not just what Fortas did, but how and when he did it." Fortas may have had "the right stuff' for a lawyer, but

he did not have it as a judge. The intellect was certainly there, but not the temperament.... Rather than changing his manner of action and ethical code once on the court, he continued to follow the same standards that had previously guided his legal career. And that got him into trouble. But the major mistake that Fortas made was one of a man seemingly panicked by the prospect of 'dying on the Court,' after being forced to take the post by someone more certain than he in a moment of weakness.[53]

Still, all of this simply made Fortas vulnerable. Others had to bring about his fall. Fortas was caught in what Murphy terms "a riptide of history," meaning that greater forces closed off any possibility of escape. Ruin was assured by a coming together of three "shifts" in Washington: one was institutional, one was political and the other was generational. Fortas entered the spotlight of scrutiny at a time when power was shifting from the Presidency to the Congress. Partly because of growing congressional opposition to the Administration's policy in Vietnam (from both "hawks" and "doves") Johnson could no longer count on having his way on Capitol Hill. Influence was also shifting from liberals to conservatives, as illustrated by the impressive combined popular vote garnered by presidential candidates Richard Nixon and George Wallace in November 1968. The old New Deal Democratic coalition was in trouble. Finally, older leaders like Senators Everett Dirksen and Richard Russell did not come to the President's aid, and most of the rising younger leaders did not want to be "tainted by the issue." Ironically, just when Fortas, at age 59, should have been coming into his prime in Washington, "his career ended so suddenly that he went out with the older generation.... The young man on the fast track became the middle-aged man careening off it, while the plodders his age maintained their slower pace to the top."[54]

Murphy does not probe one of the intriguing questions about Johnson's last weeks in the White House. Why did he not submit another name to the Senate? His failure to do so guaranteed that the choice of Warren's successor would fall to Richard Nixon. According to one study, advisers put forth the names of Erwin Griswold and former Justices Clark and Goldberg. To avoid a recess appointment, they wanted the President to act immediately or when the Senate reconvened in January of 1969. Apparently persuasive, however, was a memorandum dated December 9, which evaluated probable opposition in the Senate Judiciary Committee and on the floor: "[I]f a nomination were submitted I think it unlikely that it could be confirmed. To reject Goldberg might prove slightly embarrassing for the Republicans but to be repudiated again by the Senate on a Chief Justice nomination would also be embarrassing to the President. I would recommend against the nomination of a Chief Justice...."[55]

Finding himself in a similar situation in 1801, President John Adams, much to President-elect Thomas Jefferson's chagrin, followed an altogether different course. A few weeks before he left the White House, Adams named Secretary of State John Marshall Chief Justice. If Adams had taken President Johnson's route, Chief Justice Ellsworth's successor probably would have been Spencer Roane of Virginia, an ardent defender of states rights. In that event, history during the crucial formative years would have been drastically altered.

The Past

Whether a Fortas from the twentieth century or a Waite from the nineteenth century, no Justice since Chief Justice Marshall's time writes on a blank slate. The past is a factor. The past includes the nation's history to be sure, but also the Court's own decisions: the legacy of jurists, themselves part of history. "Our jurisprudence is distinctive in that every great movement in American history has produced a leading case in this Court."[56] The past contains the gloss that the Justices have spread over the Constitution.

An important part of the constitutionally significant past is the legacy of commentators on American law and institutions. In the early days of the Republic, decisions of many courts were published only irregularly, if at all, and frontier conditions often deprived attorneys of those which were in print. In such surroundings, legal commentaries not only helped to educate the bar and the public but were among the few sources of the law at hand. Virginia's St. George Tucker published an "Americanized" edition of Sir William Blackstone's Commentaries in 1803. While Blackstone's work was already widely known on this side of the Atlantic as "an intelligible description of the whole system of the common law,"[57] Tucker attempted to place all legal knowledge within it, as "the ready instrument for the apprentice or self-trained lawyer." Later, the four volumes of New York Chancellor James Kent's Commentaries, published between 1826 and 1830, "immediately became the standard general treatise on law in the United States.... As a constitutional law treatise, they were widely used for college instruction, apart from their usefulness to lawyers; their use in this respect evidenced the place that lawyers had made for themselves and their point of view in American affairs."[58] This was a tradition quickly followed by Justice Joseph Story and later by figures such as Thomas Cooley, Christopher Tideman, and John F. Dillon. Even as law libraries multiplied and court reports became widely accessible, the role of comentators did not diminish. While no longer being the sole text for an apprentice or the only locally available guide to the law, legal commentary became a major influence on the growth of the law, whether in books or law reviews.

Of prominent twentieth-century constitutional scholars whose careers are now part of history, Edward S. Corwin stands out. He illustrated his own incisive observation: "If judges make law, so do commentators."[59] Elevating Corwin into the front rank of immortals among American constitutional commentators are the quantity, timeliness, profundity, comprehensiveness, and objectivity of his writings as well as their relationship to the law that came before and after." Corwin's writings "are a resource for training citizens, as well as judges and lawyers, in the nature of the Union and the purpose of American government."[60] Among the weaknesses of a written Constitution, claimed Thomas Cooley, was "that it is often construed on technical principles of verbal criticism rather than in the light of great principles."[61] Corwin's work never suffered from that failing, assuring its usefulness even today in understanding American constitutional government.

Corwin differed from nineteenth-century commentators partly because he specialized in constitutional law. The writings of Kent, Story, and the others were concerned with other areas of the law too. Corwin was also different because he was neither an attorney nor a professor in a law school (his doctorate was in history, and his professorship was in Princeton's Department of Politics). Corwin's major. publications spanned a half century, from 1906 to the late 1950s. Measured on a time line of major constitutional decisions, this means Corwin was professionally active from Lochner v. New York, through the Court-packing fight of 1937 (which led, in Corwin's own words, to the "Constitutional Revolution, Ltd."), until after Brown v. Board of Education.[62] The expanse of that constitutional landscape is breathtaking.

Corwin also differed from the leading nineteenth-century commentators in that he was an essayist. Much of his best work appeared as articles during the five decades of his professional life. There was no single, massive treatise---no Corwin's Commentaries.[63] Partly to compensate for this absence, Richard Loss has undertaken a project to publish Corwin's major articles in a multi-volume set entitled Corwin on the Constitution. The articles, representing a scholar's work of a lifetime, are thus combined to form the treatise Corwin never wrote. The first volume, The Foundations of American Constitutional and Political Thought, the Powers of Congress. and the President's Power of Removal appeared in 1981. The second volume, The Judiciary, has now been published and contains 16 articles, plus Corwin's sixty pages of testimony before the Senate Judiciary Committee in 1937 on "Reorganization of the Federal Judiciary," alias President Roosevelt's Court-packing plan.[64]

The result is impressive. In one place are essays originally published in many journals, some of which are now fairly obscure. Moreover, because Loss arranged the articles by their date of publication, one has the advantage of seeing Corwin's thought develop from the first ("The Supreme Court and Unconstitutional Acts of Congress" in 1906) to the last one ("John Marshall, Revolutionist Malgre Lui " in 1955). Since Corwin changed his views on the basis of judicial review, Loss believes "readers are therefore compelled to think for themselves."[65] The reader can thus use it as a dual resource: to understand better American constitutional interpretation and to peer into the thinking of one of the century's preeminent scholars as well.

Apparently, Corwin considered his articles on the judiciary among his most important. "I consider that my most creative work has been in digging out the foundational doctrines and assumptions underlying American constitutional law, and especially those doctrines and assumptions which have been in the past enforced by the Supreme Court against legislative power, both state and national. It is these articles... which have drawn most attention from judges and students of law and political science."[66] Loss believes that someone reading Corwin for the first time "will find a golden harvest" of reflection. These essays "are inevitably controversial in that Corwin and other skilled commentators disagree on important matters such as the basis of judicial review."[67] Questions Corwin faced still engage the Court and the world of scholarship.

The Supreme Court is the focus of William Wiecek's Liberty Under Law.[68] If Loss's volume presented one commentator's running evaluation of the Court's work, Wiecek's monograph provides an interpretative account of the Court's history. This history is the necessary starting point for any discussion about the Justices and their relation to American life today.

Publication of Liberty Under Law is noteworthy in at least one respect. Even with the vast outpouring of books and articles about the Court and its decisions, there have been few well-written, short, historically oriented appraisals of the Court. For three decades, students have turned to Robert G. McCloskey's The American Supreme Court. Valuable still, McCloskey's book was completed before the second (and very activist) half of the Warren Court had begun. In the conclusion, McCloskey advised, "The Court's greatest successes have been achieved when it has operated near the margins rather than in the center of political controversy; when it has nudged and gently tugged the nation, instead of trying to rule it."[69] Because that sentence was written before decisions such as Mapp v. Ohio, Reynolds v. Sims, Miranda v. Arizona, Duncan v. Louisiana, Swann v. Charlotte-Mecklenberg Board of Education, and Roe v. Wade,[70] it is gratifying to see a new overview of the Court's history, complementary to McCloskey's and of similar length.

There are at least two levels to Liberty Under Law. In the first, Wiecek provides the reader with a conventionally arranged account of the institutional development of the Supreme Court and the mainly simultaneous growth in the Court's constitutional authority. Five chapters (1-5) are organized chronologically, the rest (6-8) topically. The latter by and large discuss the post-1937 Court, and even here the organization, especially within each chapter, is chronological.

At the outset, Chapter One ("The Origins of American Constitutionalism") alerts the reader to the fact that the Supreme Court "is heir to a constitutional tradition now some eight hundred years old."[71] There may be no more effective way to place contemporary debates, whether over the President's powers or abortion, in perspective. Discussion moves from Magna Carta, to the American colonial experience, the ratification debates of 1787-1788, and the first years under the new Constitution. The second chapter reviews the challenges to, and the accomplishments of, the Marshall Court. Chapter Three surveys the problems of democracy, slavery and capitalism as they confront the Taney Court. The fourth chapter treats the novel constitutional issues posed by the Civil War and Reconstruction, especially regarding protection of the rights of the newly freed slaves. Chapter Five ("The Formalist Era") mainly recounts the struggles over state regulatory authority and the extent of national power during the tenures of Chief Justices Waite, Fuller, White, Taft, and Hughes. The final three chapters deal with issues which have occupied the modern Court: separation-of-powers concerns (especially executive power), equal protection and due process.

At the second level of Liberty Under Law, Wiecek displays this historical development within the context posed by James Bradley Thayer's question in his essay of 1893.[72] "Put simply," writes Wiecek, "this problem is: how can an institution that is not at all democratic in its composition and methods legitimately exercise the power of holding void the laws enacted by the democratically elected branch of government, the people's representatives? This question of legitimacy has provoked another: can Supreme Court adjudication be objective?"[73] The task is really one of trying to maintain the rule of law, which, as John Adams formulated the matter for the Massachusetts Constitution of 1780, is one of assuring "a government of laws and not of men."

While judicial review has been part of the Supreme Court for almost as long as there has been a Supreme Court, Wiecek acknowledges that judicial review itself did not become politically controversial until about a century ago. This of course coincided with the rise of an activist Court bent on restricting legislative power over property. Like Lasser, Wiecek believes that most of the external constraints on judicial power have proved to be of "dubious utility." Only the President's power to reshape the Court through appointments has had much effect. Justices and Court scholars have consequently turned their attention to checks on judicial discretion which are "internal" to the decision-making process. These internal checks are criteria which are supposed to guide and therefore to corral the discretion of individual Justices. According to the author, five such criteria exist:[74] the text of the Constitution itself, the framers' intent, structuralism (that is, how one part of the Constitution or government institution relates to another), history in the form of stare decisis, and application of fundamental values (the consensus approach). As legal commentary for at least the past 75 years reveals, no one of these criteria has been found unassailable or has been able to command general assent. This debate over objective criteria became even more unsettled with the advent of "critical legal studies" in the law schools.

Within this blur of uncertainty the Court has approximated Adams' ideal, Wiecek concludes, largely because of the possibility of correction by the political process and because of the Court's own internal decisional procedures. He identifies four. For two centuries, the Court has not long pursued policy objectives greatly at odds with the strongly held views of a majority of the people. Second, the common law tradition of deciding cases means the evolution of doctrine takes place within a "dialogue that refines concepts, often over long periods of time." Third, self-denying rules have worked to keep some controversies out of the highest court altogether. Finally, "history serves as an anchor or constraint on judicial whim." The past is always a yardstick by which present performance can be judged.[75] The American constitutional tradition has allowed the Court both to check the political process and to be bound by that same process.

In constitutional adjudication, one prominent feature of the past remains among the most significant and provocative: the Fourteenth Amendment. It figures prominently in Wiecek's Liberty Under Law. Furthermore, there has been no shortage of studies in recent years devoted solely to this amendment.[76] Joining their ranks is The Fourteenth Amendment by William E. Nelson.[77]

The Fourteenth Amendment was such a significant addition to the Constitution that it is sometimes referred to alone as the "Second Constitution." It altered the federal system by placing within the Constitution for the first time broad, but unspecified, limits on the power of the states. Heretofore, with only a few exceptions such as the contract clause and the dormant commerce power, the Constitution constrained the national government, but not the states. Since most governmental activity in this country has historically been performed by state and local governments, the amendment potentially placed a wide realm of public policy, previously uncontrolled by the Constitution, within its reach. The word "potentially" must be emphasized, however, because Section One--the part, along with the enforcement clause in Section Five, that has proved of lasting importance--catalogs the new limitations in an open-ended manner: "the privileges or immunities of citizens of the United States," the "liberty" which must not be "deprived" without "due process of law," the "equal protection of the laws" which no state can deny.[78]

The amendment has been provocative and indeed controversial because the open-ended provisions of Section One invite debate on the precise limitations now applicable to the states. Are the restrictions on state power designed mainly to achieve racial justice? Do they consist of the constraints contained within the first eight amendments alone? Are other fundamental rights protected against abridgement by state action? If other rights are included, how do judges discern the rights deemed fundamental? The words of the amendment do not say.

William Nelson, who clerked for Justice White during the October 1970 Term of the Supreme Court, begins his study of the Fourteenth Amendment with a recognition of an "impasse" in scholarship. There is simply no agreement among historians and legal scholars on the amendment's meaning. Each interpretation finds supporting evidence, but the evidence is not conclusive. One is left wondering whether those in Congress and the ratifying state legislatures had any particular intention in mind for their handiwork. In part, the impasse arises from conflicting views of the Reconstruction period. Some see the amendment as the fruition of the labors of idealistic statesmen who fought for the expansion and protection of individual rights. Others stress the partisan motivation to hold the Republicans together by retaining political power and assuring a climate conducive to economic growth.

To break through this impasse, Nelson explains that he examined sources "most previous historians have ignored" (such as state ratification debates, newspapers and the private papers of congressmen) and asked "questions about the sources that previous historians have not asked." The latter task is the more productive, he believes, because one must avoid asking questions the Reconstruction generation did not ask (such as whether the amendment would affect anti-abortion legislation). A question that did not occur to that generation "cannot be answered by examining records of its actual thought." Nor should one ask how the framers of the amendment would resolve issues they did consider but in fact did not resolve (such as how voting rights were to be protected). Rather, one should try to discover the meaning the amendment had for its proponents, "even if that meaning is not dispositive of the issues pending in the courts today."[79]

Among leaders in the Republican Party in 1866 and much of the northern electorate, the amendment's meaning "existed on a conceptual level different from the doctrinal level on which most scholars have tended to examine it.) That meaning combined a commitment to apparently opposite objectives: federal protection of the civil rights of blacks and the preservation of the federal balance between the national and state governments. They wrote the amendment "to reaffirm the lay public's longstanding rhetorical commitment to general principles of equality, individual rights, and local self-rule." Was not the conflict between these ends surely foreseeable? Nelson thinks that the generation of the late 1860s did not think it inevitable. Instead, the amendment was designed "to persuade people to do good, rather than a bureaucratic venture intended to establish precise legal rules and enforcement mechanisms." Rather than placing particular rights in a federally protected status, the amendment left definition of rights in the hands of the states, subject to the stipulation that state laws not be "arbitrary" or "unreasonable."[80]

Initially, in the Slaughterhouse Cases,[81] five Justices on the Supreme Court refused to give the Fourteenth Amendment even this limited meaning. Shortly and for the rest of the nineteenth century, however, the Court accepted and applied the amendment's rhetorical purpose.[82] Rights and local rule would be balanced as the Court increasingly confronted contests between laws aimed at securing the public good and litigants seeking private advantage. Even the decision in the Civil Rights Cases, discussed earlier in connection with Charles Fairman's volume, was in accord with this view. "[I]ndividual civil rights did not preexist law and were not created by federal law; individual civil rights were the creations of state law. The federal government could have no power to determine the content of civil rights if it was to remain the government of limited power that all Americans wanted. The only power that the Fourteenth Amendment granted to Congress and the federal courts was power to hold the states to the rule of law: the power to insure that the states extended the same rights to all individuals equally except on those occasions when the good of the public at large demanded that distinctions between individuals be drawn"[83]

According to Nelson, only in Lochner v. New York[84] in 1905 was there a departure from this approach. "The Lochner court...began to give the impression that the right of free contract was of such fundamental stature that no government could infringe it."[85] Despite the Court's abrupt shift from protecting economic liberties in 1937, it is really the Lochner approach to the Fourteenth Amendment which has prevailed and not that of the Reconstruction generation. Justice Stone's adumbration of the preferred status of new rights in his now famous Footnote Four [86]meant that the Court, as in Lochner, would not be concerned with whether certain liberties were regulated reasonably but whether they were restricted at all. For Nelson, a half century after Stone's footnote, "the nineteenth century's approach to the limited reach of the Fourteenth Amendment" has been forgotten.[87]

Process

The Court's decision-making process as well as its past shapes its decisions. At the most basic level, litigants must pursue objectives through the courts, often at enormous expense and with months and even years going by before a resolution is reached. Once the Supreme Court has accepted a case for decision, briefs and oral argument inform the Justices and further define the issues the case presents. They often supply the reasoning the Court uses in justifying its decisions. Moreover, because all Justices normally participate in each case, collegial interaction becomes a factor. Discussion in conference and persuasive comment by one Justice on an opinion drafted by another contribute to the form a decision eventually takes. They sometimes cause Justices to change positions in a case.

Books examining the judicial process typically take one of three forms. The work may be an overview of the entire process, drawing examples from numerous cases.[88] It may focus on a single case and stress the political forces that coalesce to encourage and even finance the litigation because of the issue it raises.[89] Or it may focus on a single case and stress the Court's internal deliberations and ways of reaching a decision. Bernard Schwartz's Behind Bakke is of the third type.[90]

Denying his intent to write a "mini-Brethren,"[91] Schwartz clarifies his purpose: "to give students of the Supreme Court further insight into the Court's largely unrevealed decision processes.... It is my hope...that the actual operation of the Court will be made clearer by this account of the decision process in an important case." Schwartz has selected a fascinating subject for this case study. Regents v. Bakke[92] was one of the more celebrated cases of the decade and was the Court's first decision on the merits in an affirmative action case. At issue was a special quota used for admissions at the medical school of the University of California at Davis.[93] As of 1989, Bakke remains the Court's only statement about the constitutionality of affirmative action in higher education.

Most of the sources Schwartz employed in this study are not readily available to others. He conducted personal interviews with members of the Court, former law clerks, and others familiar with the case. "Every statement not otherwise identified was either made to me personally or I was given information about it by an unimpeachable source."[94] Moreover, and probably more significantly, Schwartz had access to conference notes, docket books, correspondence, and memoranda, as well as draft opinions of the Justices. Much of this material was apparently provided by Justice Brennan. Of particular value are the memoranda of five Justices addressed "to the Conference" which discuss the case and lay out the individual Justice's views as of the date of writing. (Because Schwartz apparently relied heavily on facts and documents provided by Justice Brennan, it is entirely possible that other information not available to Schwartz but pertinent to the story of Bakke could affect the way the case is understood. Here as in other instances, no book should be taken as the "last word."

The book reveals some things about Bakke which are not widely known. For example, the reader is told that Justice Brennan strongly urged his colleagues not to grant certiorari in the case, but that he carried only three others (Chief Justice Burger and Justices Blackmun and Marshall) with him. Brennan apparently feared that a majority would rule out all uses of race in admissions. Second, just before the October 1977 Term began, Justice Marshall urged Brennan to "find some pretext to get rid of the case because he believed quotas were often indispensable to affirmative action programs." By this point, Brennan thought that everyone except the Chief Justice was inclined to uphold the quota system at Davis.[95] Third, at conference on December 9, the Court divided five to three to affirm the California Supreme Court which had held against the constitutionality of the Davis program (Justice Blackmun was in Minnesota recovering from surgery; his views would not become fully known until later). However, as Schwartz tells the story, Brennan (who would uphold the program) was able to get an oral concession from Powell, "that the judgment must be reversed insofar as it enjoins Davis from taking race into account."[96]Here presumably is the source of the lasting outcome of the case, where one coalition of Justices struck down the Davis quota but another coalition of Justices (with Powell alone in both coalitions) upheld the principle of affirmative action. It was this latter point which Justice Brennan called "the central meaning" of the decision:[97] that government may take race into account when it acts to remedy disadvantages cast on minorities by past racial prejudice but not when it seeks to demean or harm any racial group. While Powell's opinion in Bakke has long been seen almost as an "opinion of the Court" (even though Powell was speaking only for himself), Schwartz believes that it was Brennan's "central meaning" that has become in practice the holding in the case.

What is Behind Bakke's contribution to the understanding of the Court? What "further insight" does Schwartz make known? In terms of new perspective, the book adds little. Beginning at least with publication of Alpheus Thomas Mason's Harlan Fiske Stone in 1956, students of the Court have had access to many studies which depict the role of bargaining, interplay and other extra-legal factors presumably long a part of the judicial process. In terms of information about Bakke, however, the book is unique among published accounts of the case. It is not only a well-told story but an indispensable source for someone interested in Bakke as well as the Justices' developed and developing attitudes on affirmative action.

Product

The Court's process is of interest because of its impact on product: the Court's decisions. Because the Court decides politically significant cases like Bakke, it has been a major institution in American government nearly from the beginning.

Publication of the Encyclopedia of the American Judicial System is evidence of the importance of decisions by the United States Supreme Court and other courts in this nation. According to editor Robert J. Janosik, the project was undertaken because "the voluminous literature on the law is often inaccessible to the layperson, university student, and academic researcher not trained in the ways of the law library." To remedy this problem, the encyclopedia addresses both the substance of American law "and the process that produces and utilizes legal precepts."[98]

The three-volume work contains 88 articles written by 91 scholars and practitioners and is divided into six parts: Legal History, Substantive Law, Institutions and Personnel, Process and Behavior, Constitutional Law and Issues, and Methodology. Of the 88 articles, 18 treat subjects in American constitutional law and theory, and 13 focus on the Supreme Court's decisions and institutional development. The shortest ("The Civil Law System" by Henry W. Ehrmann) is ten pages; the longest ("The Taney Court and Era" by Milton Cantor) is32. Janosik describes all of them as "introductory studies," meaning they are written at a level appropriate for the legal novice; at the same time, they are useful to the informed reader as well. No one is an expert in everything. Each article concludes with a bibliographical essay, cross references to other articles and, where appropriate, a list of cases. The authors did not employ a single method of analysis; they are too eclectic a group to have made that possible. Some use case analysis, some stress historical context, and others discuss their topics in terms of political pressures and blocs on the Court.

There are two ways a reviewer may approach an encyclopedia. One may simply start from the beginning and read as far as time permits. Or one may turn to topics of interest to learn how they have been developed. Using the latter method, I examined several essays, including Paul R. Benson, Jr.'s "The Commerce Clause."

At least since Gibbons v. Ogden,[99] the commerce clause has had a prominent role in American constitutional law. Unlike some provisions in the Constitution, it has had two very distinct dimensions. On the one hand, it is a direct grant of power to Congress, and on the other it has been construed as a limit on the states even without congressional action. Benson explores this duality.

With the first, the commerce clause amounts today to plenary power for the national government. With few exceptions, the Court reads "commerce" so broadly that hardly anyone now seriously argues that Congress has exceeded its authority under that grant. With the second, however, judicial discretion remains a factor. In a survey of the Court during the 1940s on the question of limits the clause places on the states, Benson found three different attitudes. One, associated with Justice Black, was highly tolerant of state regulations; another, associated with Justice Jackson, was suspicious of state regulations which affected commerce; and a third, associated with Chief Justice Stone, occupied a middle position. "[T]he Stone approach," writes Benson, embodied "a deference to legislative judgments, a clear-headed appreciation of the complexities endemic in federalism, and a sympathy for the legislative needs of the states [and] result[ed] in the most acceptable resolution of the whole vexatious problem." Overall, Benson finds that the Court's record in interpreting the commerce clause "has been commendable. One of the main am-mating reasons for the framing of the Constitution was to promote the general welfare and ensure domestic tranquility in economic and social relationships.... Thus, it may be argued that over the long stretch of American history the Court has been remarkably faithful in utilizing the commerce clause to advance the best interests of all the people of the United States."[100]

Benson's article, much of the rest of the Janosik Encyclopedia, and the other works surveyed here amply illustrate the five elements this review has suggested are helpful in understanding the Supreme Court. From various perspectives the authors portray facets of the Court's political and intellectual environment, its personnel, its past, its process, and its product. The intent in all of them is a better grasp of an institution that has evolved, in Hamilton's words, as the "essential safeguard" in a political system now in its third century.

The volumes surveyed in this article are listed alphabetically by author below.

CHARLES FAIRMAN, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States; Volume VII Reconstruction and Reunion 1864-88: Part Two. New York: Macmillan, 1987. Pp. xxiii, 836.

ROBERT J. JANOSIK, ed., Encyclopedia of the American Judicial System. 3 vols. New York: Charles Scribner's Sons, 1987. Pp. xii, 1420.

WILLIAM LASSER, The Limits of Judicial Power: The Supreme Court in American Politics. Chapel Hill: University of North Carolina Press, 1988. Pp. x, 354.

RICHARD LOSS, ed., Corwin on the Constitution: Volume Two: The Judiciary. Ithaca, N.Y.: Cornell University Press, 1987. Pp. 399.

GARY L. McDOWELL, Curbing the Courts: The Constitution and the Limits of Judicial Power. Baton Rouge: Louisiana State University Press, 1988. Pp. xiv, 214.

BRUCE ALLEN MURPHY, Fortas: The Rise and Ruin of a Supreme Court Justice. New York: William Morrow and Co., 1988. Pp. 717..

WILLIAM E. NELSON, The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, Mass.: Harvard University Press, 1988. Pp. ix, 253.

BERNARD SCHWARTZ, Behind Bakke: Affirmative Action and the Supreme Court. New York: New York University Press, 1988. Pp. x 266.

HERMAN SCHWARTZ, Packing the Courts: The Conservative Campaign to Rewrite the Constitution. New York: Charles Scribner's Sons, 1988. Pp. xiv, 242.

WILLIAM M. WIECEK, Liberty under Law: The Supreme Court in American Life. Baltimore, Md.: The Johns Hopkins University Press, 1988. Pp. xi, 226.

 

Endnotes

1. Address, February 1, 1940, 84 L. Ed. 1428.
2. The Federalist, No. 51.
3. Osborn v. Bank, 22 U.S. (9 Wheaton) 738, 866 (1824).
4. The Federalist, No. 78.
5. J. Bassett, The Federalist System 1789-1801 21 (1906).
6. W. Taft, "Criticisms of the Federal Judiciary," 29 American Law Rev. 641, 642-643 (1895).
7. Books are listed in full citation above the endnote section.
8. H. Schwartz, supra, n. 7, ix, xi.
9. For example, see Goldman, "Reorganizing the Judiciary. The First Term Appointments," 68 Judicature 313 (1985).
10. H. Schwartz, supra n. 7, 43.
11. Id. at 179-200.
12. Cohen, "Conservatives Step Up Efforts to Promote Reagan-Minded Judges to U.S. Bench, " National Journal 1560 (July 6, 1985).
13. H. Schwartz, supra n. 7, 44.
14. Chayes "Public Law Litigation and the Burger Court," 96 Harv. L. Rev. 4, 6, (1982).
15. Opposition to Judge O'Connor's nomination in 1981 came only from "pro-life" groups; Judge Ginsburg's name was withdrawn before Senate hearings could begin in 1987.
16. H. Schwartz, supra n. 7, 68.
17. In a reference to the defeat of the nomination of Judge John Parker to the Supreme Court in 1930, it is not clear what Schwartz means by the following: "since his defeat made it possible to appoint the saintly Benjamin N. Cardozo two years later, the nation hardly suffered," Id.
18. When Parker's nomination failed, President Hoover nominated Owen J. Robert whom the Senate confirmed that same year. This was the seat, which had been held by Justice Edward Sanford. Hoover then nominated Cardozo upon Justice Holmes' retirement in 1932.
19. McDowell, supra n. 7.
20. H. Schwartz, supra n. 7, 32.
21. McDowell, supra n. 7, 197.
22. McDowell, supra n. 7, 2, 10, 11, 205.
23. Id. at 168-196.
24. See R. Morgan, Disabling America: The 'Rights Industry' in Our Time (1984).
25. Lasser, supra n. 7.
26. R. McCloskey, The American Supreme Court 231 (1960).
27. Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857).
28. Lasser, supra n. 7, 5-6.
29. Id. at 7.
30. 297 U.S. 1, 78-79 (1936) (dissenting opinion). Stone's comment was tested the very next year when President Roosevelt put forth his Court-packing plan. FDR lost the battle but won the war.
31. Lasser, supra n. 7, 263, 270, 272.
32. Max Lerner, as quoted in H. Abraham, The Judicial Process 348 (5^th ed., 1986).
33. Fairman, supra n. 7.
34. See Stephenson, "The Judicial Bookshelf," Yearbook 1988 98, 99-100.
35. Fairman, supra n. 7, 3-83.
36. C. Magrath, Morrison R. Waite 8 (1963).
37. Quoted in id. at 2.
38. Nation, January 22, 1874. Waite seemed to make a good first impression. On his first circuit tour in the Southeast, one reporter wrote: "This legal luminary is not peculiarly striking in general appearance. He is of medium height, stoutly built and apparently robust in health. He has a mass of dark hear tinged with gray, clean-shaven upper lip, and full iron-gray beard. A big mouth, prominent nose, large dark eyes, deepest and overhung by thickish eyebrows, and a fine, broad forehead, make up his physiognomy. The face certainly indicates strong intellectual powers. In his manner he is exceedingly genial and pleasant. Evidently Chief Justice Waite is not only a thorough lawyer with mental faculties of a high order, but in addition a thorough gentleman, courteous, refined and high-toned. He has made a most favorable impression upon the bar here." Raleigh [N.C.] Sentinel, quoting the Charlotte [N.C.] Observer, June 11, 1874. Clipping from the Waite Papers, Library of Congress, a copy of which is in this reviewer's possession. The days before the widespread use of illustrations in newspapers obviously demanded great descriptive powers of reporters.
39. 94 U.S. 113 (1877).
40. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418 (1890).
41. See Brewer, "The Nation's Safeguard," 16 Report of the New York State Bar Association 37 (1893); Marshall, "A New Constitutional Amendment," 24 American Law Rev. 908 (1890); Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law," 7 Harv. L. Rev. 129 (1893).
42. 109 U.S. 3 (1883). See Fairman, supra n. 7, 550-558; see also the discussion of William Nelson's The Fourteenth Amendment, infra.
43. Id. at 556-557.
44. Id. at 565. Fairman's scholarly interest in Bradley is longstanding. While he never wrote a biography of Bradley, he did author several shorter pieces on the Justice. See his "Mr. Justice Bradley's Appointment to the Supreme Court and the Legal Tender cases," 54 Harv. L. Rev. 977, 1128 (1941); "The Education of a Justice: Justice Bradley and some of His Colleagues," 1 Stan. L. Rev. 217 (1949) "What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court 1870-1892," 30 Boston U. L. Rev. 49 (1950);