The Judicial Bookshelf

D. Grier Stephenson, Jr.

Observances in 1991 commemorating the Bill of Rights are a reminder that protection of individual rights in the United States has long been judicially based. This relationship between courts and rights even predates ratification of the Constitution.

For America's first experiment with a national bill of rights, one must look to the meeting of the Continental Congress in Philadelphia on October 14, 1774. Some 21 months before the signing of the Declaration of Independence, delegates adopted a Declaration of Rights which they pronounced valid on the authority of "the immutable laws of nature, the principles of the English constitution, and the several charters or compacts," of the American colonies. Worthy of protection, they said, were rights of property, assembly, petition, and trial by jury, the English common law, as well as restrictions on standing armies in peacetime.[1] Soon, independence meant that Americans had to assume a new responsibility: alone they now shouldered the twin burdens of defining and defending the rights they would enjoy.

Yet this pre-revolutionary preview of a national bill of rights had to wait seventeen years for the real thing. Unlike state constitutions drafted in 1776 and after, the proposed federal Constitution did not contain a detailed charter of liberties when it left the hands of the Framers in 1787. Among other critics, Thomas Jefferson wanted curbs over and beyond the structural checks stressed by convention delegates James Wilson and Alexander Hamilton. Wilson doubted the wisdom of making exceptions to power not granted. "In a government of enumerated powers," he declared, "such a measure would not only be unnecessary but preposterous and dangerous." For Hamilton, bills of rights "would sound much better in a treatise on ethics than in a constitution of government." Jefferson persisted. A bill of rights would "render unnecessary an appeal to the people, or in other words a rebellion on every infraction of their rights." When a reluctant James Madison yielded to Jefferson's plea for a bill of rights and strained to find supporting reasons, Jefferson singled out an argument of "great weight"--the legal check it would place in the hands of the judiciary. In presenting a series of amendments to the First Congress for the Bill of Rights, Madison made Jefferson's argument his own. Thanks to the Bill of Rights, "independent tribunals of justice" would be "an impenetrable bulwark against every assumption of power in the legislative or executive."[2]

After two centuries, the Bill of Rights is a document of the present as well as of the past. Its place in the life of the nation is more than merely symbolic or hortatory largely because of decisions by the United States Supreme Court giving it vitality and meaning. Three developments have now made it virtually impossible to speak or write about the Bill of Rights without reference to the Supreme Court. First, the Court assumed a guardianship of the Constitution during the formative years of the nation. Formally this happened through judicial review. Explained, defended, and applied in 18O3,[3] judicial review had already been implicit at least as early as the Court's decision in Chisholm v. Georgia in 1793.[4] In deciding that the State of Georgia was suable in federal courts by a citizen of another state, the Court rendered an interpretation of Article III. More important, Congress's prompt resort to the formal amending process as a corrective was a testimonial to the stature of the judiciary. Congress, in proposing the Eleventh Amendment, and the states, in ratifying it, had within a short time equated the Court's interpretation of the Constitution with the document itself. So, judicial review has provided a means for enforcement of guarantees of individual liberty, just as Jefferson anticipated. It has also provided the missing piece in the puzzle, dating at least from Magna Carta, of how a government could be made to control itself.

Second, in construing the Bill of Rights, the Court has usually not considered its provisions time-bound. Instead, during the twentieth century and part of the nineteenth, the Justices have frequently agreed with Justice Brandeis's position that "[c]lauses guaranteeing to the individual protection against specific abuses of power, must have a...capacity of adaptation to a changing world…[5] Although hardly without controversy and dissent on the bench and in the nation, the Court has even gone beyond the particulars of the Bill of Rights to extend constitutional protection to other liberties deemed equally fundamental.[6]

Third, the Court has applied most of the provisions of the Bill of Rights to the states. Ironically, one of the amendments Madison originally laid before Congress in 1789 would have set limits on the states as well. But Congress failed to include this stipulation among the twelve amendments it proposed to the states. As the eleventh state (three-fourths of fourteen), Virginia's ratification in December 1791 made the Bill of Rights, consisting of ten of the proposed amendments, part of the Constitution. The remaining three states (Connecticut, Georgia, and Massachusetts) did not ratify until the 150th anniversary of the Bill of Rights in 1941. Never ratified were an amendment on the apportionment of members of the House of Representatives and one (sometimes called the "lost amendment") delaying any increase in congressional salaries until a new Congress convened following the next election. In recent years, some state legislators have resumed the drive to obtain ratification of the amendment on salaries, after a hiatus of more than two hundred years. At the outset, however, the Bill of Rights applied only to the national government.

It took a long time to close the gap. The first step came with ratification of the Fourteenth Amendment in 1868. Section one contained majestic, but undefined, checks on state power that begged for interpretation. The second step came as the Court, acting for the most part m a series of cases after 1920, read almost every part of the Bill of Rights into the amendment. With consequences that can scarcely be exaggerated, state and local governments became bound by the same restrictions that had applied to the national government.

Since 1791 Americans have not been distinctive among peoples of the world because they have a bill of rights. Rather, they have been distinctive because they have long regarded liberty as a juridical concept: "a constitutional limitation, enforceable by courts upon the legislative branch of government...."[7] Even many who normally have little interest in public affairs are quick to take note when television highlights a court decision supposed to have expanded or contracted personal freedom.[8] While cases involving individual rights usually comprise only about half the Court's business each Term, these are the cases which in the public mind have inexorably linked the Justices to the Bill of Rights.

Recent books are ample evidence that the Supreme Court remains near the center of attention. Their timing may be merely coincidental with the bicentennial of the Bill of Rights, but most reflect an intense interest in the Court's evolving relationship with this parchment symbol of American freedom.

In thinking about the Court or any other institution, a framework of analysis is essential. For the Court, a useful framework consists of at least five elements: 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 earlier eras. The fourth points to the manner in which the Court arrives at its decisions. The last element, product, 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.[9]

To say that the Supreme Court is part of the American political system raises a question of accountability. Three authors have recently addressed this problem from different perspectives: Thomas R. Marshall asks whether the Court's decisions lead, follow, or depart from public opinion; David M. O'Brien examines the electoral link between federal judges and the process which chooses them; and Robert

The question of the wisdom of an unelected and "independent" judiciary had already surfaced during the ratification debates in 1787-1788. On one side, Hamilton defended an institution which he presumed would stand against public opinion, "as an essential safeguard against the effects of occasional ill-humors in the society."[11] On the other, anti-federalist (and fellow New Yorker) Robert Yates branded Hamilton's "safeguard" a threat to the people. The Constitution made the Justices "independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."[12] Sentiments like Yates's later fueled the drive for elected state judiciaries.

In the twentieth century, the role of public opinion in Supreme Court decision making has been no less troubling. One recalls Mr. Dooley's observation that "th' Supreme Court follows th' iliction returns."[13] Justice Stevens asserts that "it is the business of judges to be indifferent to unpopularity,"[14] but Judge (later Justice) Cardozo advised that "[t]he great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.[15] In Patterson v. McLean Credit Union[16] where the Court declined to reconsider Runyon v. McCrary,[17] Justice Kennedy acknowledged the influence of public opinion. McCrary had construed the Civil Rights Act of 1866 to permit a challenge to racially segregated nonsectarian private schools. Suggesting that this decision might have been based on a mistaken interpretation of the Civil Rights Act of 1866, he nonetheless explained that the existing interpretation was "not inconsistent with the prevailing sense of justice in this country."[18]

In such contexts, Thomas Marshall poses two questions: "first, how accurately has the modern Supreme Court reflected public opinion; and the second, why?"[19] The questions are particularly poignant because of the usual characterization of the American political system as democratic. Marshall notes that scholars today do not agree on whether the Framers of the Constitution intended the Supreme Court to have the power of judicial review, nor is there consensus on the compatibility of judicial review with democracy. Yet agreement prevails that the Supreme Court is counter majoritarian both in its composition (a bench of unelected jurists) and its operation (invalidation of decisions made by elected officials).

Marshall recasts the debate by re-defining terms. For him, a majoritarian ruling "is one that, in substance, agrees with a contemporary public opinion majority (or at least, a plurality)." A countermajoritarian ruling "is one that disagrees with a contemporary public opinion majority (or plurality).[20] This approach has the virtue of addressing the Court's relationship to the popular will directly, and avoids the assumption, which Marshall believes is mistaken, that the policies of the elected branches necessarily represent dominant opinion in the nation.[21]

Since scientific polling of opinion dates only from the 1930s, the author is limited to examining relatively recent Supreme Court decisions. So Marshall's research begins with decisions in 1935-1936 and concludes with the 1985-1986 Term. His conclusions rest on the 146 instances "in which part or all of a specific Supreme Court decision can be directly matched or compared to a specific poll item drawn from a scientific, nationwide poll."[22] His findings confirm neither Hamilton's hopes nor Yates's fears: the Supreme Court has been majoritarian more often than not.

This agreement does not derive from judicial influence on public opinion. He concludes that the Court has little ability to shape public opinion on issues, even though its decisions certainly influence public opinion about the Court itself. Rather, the tendency of the modern Court to reflect dominant public opinion in its rulings comes from a combination of other factors: judicial deference to federal policies, deference to public opinion in "crisis times," and the pronounced stability over time of those decisions which echo prevailing opinion.[23]

Nonetheless, deficiencies in the data lead one to expect that Marshall's answers are not necessarily the final answers to the questions he poses. One major limitation is the existence of polls, a fact over which he had no control. His study could include only those cases linked to a specific question in a poll. Because pollsters typically select questions on what they regard as the most salient issues of the day, those issues may not accurately reflect the bulk of the Court's decisions. Moreover, among the 146 "matches" between polling topics and Court decisions[24] (a number about equal to the number of Supreme Court decisions each Term during the period he studied), half fell between 1970 and 1986, that is, during the last sixteen years of a fifty-year study. Thus, the matches in some Terms might be a better reflection than in others. A second limitation lies in the polling. Wording and timing both make a difference in the responses a pollster receives. A third limitation stems from the well-documented fact that the public tends to pay more attention to the President and the Congress than to the Supreme Court. While the disparity is apparently the result of woefully uneven coverage in the news media, one nevertheless wonders about the degree to which the opinion reported in surveys is an informed opinion and how this circumstance affects the significance of Marshall's conclusions.[25]

The irony of an unelected judiciary within a government otherwise electorally accountable is the starting point for Judicial Roulette.[26] In 1985, the trustees and staff of the Twentieth Century Fund decided that selection of members of the federal judiciary, including Justices of the Supreme Court, was worthy of review by a task force consisting of "experts who could knowledgeably examine a system...that seemed to be growing ever more political..."[27] Of course, judicial selection is an old controversy, one that dates from President Washington's first term. What seems to have made selection of judges "ever more political" is the changing nature of the business confronting the federal judiciary. Cases today spawn courtroom questions which would have been unthinkable a half century ago. With the stakes so high, there should be little wonder that the politics of judicial nomination and confirmation has also changed.

The volume consists of two parts. The first (and shorter) part contains the report and recommendations of the Task Force. These include an emphasis on merit as the most important criterion for the nomination of a judge by the President, the widespread use of nominating commissions to screen candidates, greater visibility for nominations to the district and appeals benches, and less visibility for nominations to the Supreme Court.[28] Interestingly, the last recommendation would be accomplished by returning to the old custom by which nominees were not expected to appear before the Senate Judiciary Committee. (Harlan F. Stone in 1925 was the first nominee to do so. The second was Felix Frankfurter in 1939, but he stated that his presence was "not only bad taste but inconsistent with the duties of the office for which I have been nominated for me to attempt to supplant my past record by personal declaration." A decade later, Sherman Minton simply refused to appear, saying that his "record speaks for itself.")[29] Televised hearings now give a nominee added visibility, a practice which began with Sandra Day O'Connor in 1981.

David O'Brien's background paper comprises the bulk of the volume. Compared to the usual book-length manuscript, his contribution is relatively brief, but it is nonetheless comprehensive, current, and packed with useful data. It is also unique among recent writings about the Court and the lower judiciary. Among older studies, it is most like the scholarly Lawyers and Judges[30] or Federal Judges,[31] rather than The Benchwarmers[32] which was largely journalistic and anecdotal.

According to O'Brien, controversy over selection of federal judges stems from the Constitution itself. "By giving the president the power to nominate and--with the advice and consent of the Senate--appoint federal judges, the Constitution provided a prescription for political struggle as much as an invitation for cooperation and compromise."[33] The "swing" of electoral politics largely "determines who makes it to the federal bench," a conclusion which must surely be the source of the title of the volume.

Even so, judgeships are a product of more than presidential or senatorial patronage. "The nominating and confirmation process imposes a kind of internal check," with the result that nominations in the twentieth century have taken professional qualifications very seriously. Principal exceptions have been recent. "All administrations seek party faithful, but both Carter and Reagan gave less weight to professional qualifications than to their own legal-policy goals." Each wanted standards bent: Carter sought "to bring racial, gender, and ethnic diversity to the federal bench"[35] and Reagan tried "to appoint those sharing his philosophy of judicial conservatism." Yet neither was unusual in choosing judges with particular values in mind. Controversies arise, however, when an Administration casts nominees as "symbols of presidential power and instruments for achieving some narrow political agenda,"[36] especially when the agenda is unacceptable to a significant number of Senators.

For those who believe that judicial selection at the federal level has become too politicized or ideological, O'Brien is dubious about proposals for change. Even though he frowns on Presidents who pick single-issue nominees, he concludes that most remedies would be worse than the defect they are designed to cure. For example, implementation of Governor Mario Cuomo's plan for nomination by a "nonpartisan" commission, where merit would be the sole criterion,[37] conceivably "might improve the quality of the federal bench," but would not eliminate politics. Based on experience with similar systems in the states,[38] "the configuration of the politics of judicial selection would simply change--for better or worse."[39] Nor is O'Brien attracted to certain neutral or nonpartisan standards by which the Senate might evaluate nominees. Laurence Tribe, for one, has urged the Senate to reject nominees whose views are at variance with the American vision of a just society or whose outlook might disturb an existing equilibrium or intensify a prevailing bias on the bench.[40] For O'Brien, these "are the very grounds on which senators most often disagree."[41] Instead, there is much to be said for not reducing the impact of electoral swings on judicial selection. Through such swings the federal courts have historically remained aligned with the general opinion of the nation.

Judicial Roulette gained significance because of its timing. After the study was launched, but before its publication, the Senate rejected the nomination of Judge Robert H. Bork to fill Justice Powell's seat on the Supreme Court. The vote on October 23, 1987, was 58 against, and 42 in favor, apparently the widest negative margin ever. The four-month struggle over confirmation was rancorous. Not since Woodrow Wilson nominated Louis Brandeis in 1916 had a battle over a Supreme Court vacancy been so vitriolic. Moreover, Bork's was the first in which direct mail, television and newspaper advertisements, and other techniques of modern interest-group politics were aimed squarely against a nominee to the Court. The Judiciary Committee's record-setting twelve days of hearings (Bork testified and was questioned on five of those days) indicated the degree to which the political and intellectual environment of the nation influences the composition of the Court.

As one whose nomination failed to gain Senate approval, Bork is not alone. Twenty-eight other men have had their nominations postponed, withdrawn, rejected, or left untouched since President Washington withdrew William Paterson's name in 1793 for technical reasons.[42] Judge Bork has taken his case to the people by writing a book. The Tempting of America is really three small books in one. Part I surveys the history of constitutional development, concentrating mainly on decisions since the 1930s. Part II outlines Bork's view of correct constitutional interpretation and critiques those in academia and on the bench who disagree. Part III recalls the confirmation battle and reflects on what it may mean for future nominees. Each part lends significance to the title, for the "temptation" is the belief "that nothing matters beyond politically desirable results, however achieved."[43]

According to Bork, several characteristics mark the Court's impact on constitutional law. From the beginning, the Court has been "a strong force for centralization in our national life," although perhaps no more so than during Chief Justice Warren's tenure when the Court "imposed political and moral uniformity across wide areas of American life." Second, the Court has written values into the Constitution. Third, those values have often reflected the Justices views and not the Constitution. "This means we are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own."[44] This "will" maybe the conservative constitutional revisionism of Justice Rufus Peckham in Lochner v. New York[45] or of the second Justice John Marshall Harlan in Poe v. Ullman.[46] It maybe the liberal constitutional revisionism of Justice William 0. Douglas in Griswold v. Connecticut[47] or of Justice William J. Brennan in Texas v. Johnson[48] Bork opposes revisionism in whatever ideological guise.

In place of revisionism, "[t]he judiciary's great office is to preserve the constitutional design." But if the federal judiciary is, by that same design, "unelected, unaccountable, and unrepresentative," how are the people to be protected from their constitutional protectors? The answer is that judges must be "bound by law that is independent of their own views of the desirable." Whether faced with a statute or the Constitution, judges must construe the law "as generally understood at the enactment."[49] One purpose of his book "is to persuade Americans that no person should be nominated or confirmed who does not display both a grasp of and devotion to the philosophy of original understanding." Any other interpretation assigns a role to the judges that should be left "for the people and their elected representatives…."[50] Otherwise, there is "no set of propositions...too preposterous to be espoused by a judge or a law professor who has cast loose from the historical Constitution."[51] Only rarely since Marshall's time, apparently, has the Court been faithful to what Bork sees as the true judicial role.

This is not the place to re-examine either the politics of Judge Bork's nomination or original intent as an approach to constitutional interpretation. There are five volumes of published hearings by the Senate Judiciary Committee which explore his candidacy, plus ample commentary in the literature.[52] Nonetheless, it is worth noting that Bork discusses at length the application of his theory to the challenge posed by the Fourteenth Amendment and racial segregation. Because it is widely agreed that the "original understanding" of those who drafted and ratified the Fourteenth Amendment did not include proscription of laws requiring segregation of the races in public facilities, Bork believes that, for many, Brown v. Board of Education[53] dealt a killing blow to the appropriateness of original intent as an acceptable method of constitutional interpretation.[54] In rebuttal, Bork believes that the Warren Court could have rested the result it reached in Brown on original understanding. Since the primary purpose of the Fourteenth Amendment's equal protection clause was "equality under the law," Bork reasons that by 1954,

Original intent is therefore not as static as it might first appear. One may wish to ponder the practical difference between Bork's original-intent-in-practice as it might have been in Brown, and reliance on an evolving standard of "human dignity," as Justice Brennan advocated in his 1985 Georgetown lecture.[56] There, Brennan wished to avoid an interpretative method, such as Bork's, which accepted the death penalty as part of the constitutional order. Perhaps Bork's theory is not necessarily as limiting and Brennan's is not plainly as boundless as some adherents contend.

"The good that Presidents do is often interred with their Administrations. It is their choice of Supreme Court Justices that lives after them."[57] Two Justices--one of a bygone era and the other a member of the present Court--are the subjects of three recent studies. Two consider Justice Oliver Wendell Holmes, Jr., and the other is the first book-length work on Justice John Paul Stevens.

Publication of Gary J. Aichele's Oliver Wendell Holmes. Jr.[58] and Sheldon M. Novick's Honorable Justice[59] is especially noteworthy. Among prominent Justices whose service ended before the Burger Court (1969-1986), Holmes is unusual in that few comprehensive book-length studies exist. In part the explanation lies in the vast quantity of material any scholar must consider--more, probably, than for any other American jurist. Holmes wrote more than 2000 judicial opinions, half of those while on the United States Supreme Court. There are his own published books, addresses, and articles, plus eight volumes of letters edited by others. If there has been a dearth of biographies, there has been no shortage of books and articles about one or more aspects of Holmes's long public life as scholar and judge. There are also approximately 36,000 documents (most unpublished) in the Holmes Papers at Harvard, access to which is closed except with permission, plus references to Holmes in other collections such as the William Howard Taft Papers at the Library of Congress. Holmes is one of a small number of Justices (perhaps including John Jay, Salmon Chase, William Howard Taft, Louis Brandeis, Charles Evans Hughes, Benjamin Cardozo, and Earl Warren) whose contributions clearly would have demanded biographies even if they had never gone on the high bench.

Happenstance is also part of the explanation. Frankfurter himself was the first authorized biographer of Holmes. Upon his appointment to the Court, that responsibility fell to Mark DeWolfe Howe. His two volumes of a projected multi-volume work covered Holmes's life only to 1882.[60] Howe's death terminated the project. Death also cut short the work of biographer Grant Gilmore.[61]

A third part of the explanation may lie in Holmes himself. He has long been regarded as enigmatic. One scholar concluded that "the apotheosis of Holmes defeats understanding."

Perhaps of no other Justice considered "great" by many have assessments varied so much.[63] For Frankfurter, "No judge of the Supreme Court has done more to establish it in the consciousness of the people. Mr. Justice Holmes is built into the structure of our national life and has written himself into the slender volume of the literature of all time."[64] For others, Holmes was a totalitarian.[65] A would-be biographer concluded that he was a distasteful, if nonetheless important, figure.

Neither Aichele nor Novick attempts a categorization of Holmes. Encompassed by the subject, they apparently chose to let Holmes's life speak for itself. As Paul A. Freund observed three decades ago, "Although a new generation of readers may attend to the voice of Holmes as to an echo from another age, they will find...that it has a disturbingly close resonance."[67] "If Holmes is of interest today to any but scholars," Novick muses, "it is for his character, which shines through his writings even from the distance of a century or more.... Perhaps the life, even beyond its intrinsic interest, will help others to understand better Holmes's elusive, tantalizing ideas."[68] Even on the Court there was distance between Holmes and those touched by his opinions. "With each dissent, he became more celebrated, but he did not look back with much interest at the parade of strangers who were carrying him at the head of their march."[69] Aichele hints that Holmes was no more reflective of his era than of ours.

The lingering question is "whether Americans ever shared the faith of.. .Holmes...."[71]

Of the two books, Novick's is by far the longer--by a factor of at least three in number of words. Aichele's devotes a somewhat smaller part (about a fifth) of his book to Holmes's years on the United States Supreme Court. With Novick's, Holmes's years in Washington comprise about a third. Novick also devotes more attention to Holmes's relations with others, although past a certain point Holmes's private life seems impenetrable. Neither author hesitates to point out lapses in Holmes's thinking. The reasoning of his dissent in Bailey v. Alabama[72] strikes Aichele as "especially suspect."[73] Novick considers his opinion in Giles v. Harris[74]] "a bad one, perhaps his worst."[75]

Both volumes contain comprehensive, helpful, and complementary bibliographies. Aichele's is a nine-page essay, and Novick's is mainly a twenty-two-page listing of sources. Anyone contemplating serious work on Holmes should begin with them. Each author includes a detailed chronology of Holmes's life in an appendix, and each provides extensive documentation throughout. Aichele's citations run twenty-five pages, Novick's seventy-seven. The latter's lamentably resemble the lengthy explanatory kind that characterize law reviews. Inconvenience for readers is compounded because the citations appear as endnotes, presumably at the publisher's stipulation.

Given what a biography of Holmes must embrace, any reader is likely to have one or more quibbles with the authors. With Aichele, one wishes for greater attention to Holmes's tenure on the Court. Discussion of some major cases is far too brief. Since the book is part of the publisher's American Biography Series, however, its length may not have been negotiable.

With Novick, several interpretations and characterizations raise questions. In his brief reference to Adkins v. Children's Hospital,[76] he notes Holmes's dissent "when the Taft majority united to strike down the District of Columbia's minimum wage law for women workers."[77] If by "Taft majority" he means the majority of the Taft Court, then the statement is of course correct. But it would have been more accurate to add that Taft wrote a dissenting opinion too. As an example of Taft's diminished influence at the White House, Novick states without citation that upon Justice McKenna's resignation, "Coolidge filled the vacancy without consulting Taft."[78] But Alpheus Mason quoted two of Taft's letters from January 1925 which make clear not only that Taft professed to have consulted with the President but that, in doing so, he gave Coolidge his assessment of Harlan Fiske Stone who was then nominated.[79] Henry F. Pringle also accepted Taft's assertion as fact.[80] When Stone read Pringle he wrote James Barrett Moore, "President Coolidge...had almost as little regard for President [Nicholas Murray] Bulter's opinions as he did for Chief Justice Taft's, who I see also claims the credit or discredit for my appointment."[81]

On changes in the judicial system, Novick writes, "Most dramatically [Chief Justice Taft] secured legislation--drafted by a committee of the Justices--fundamentally reforming the jurisdiction of the Supreme Court. Henceforth, in most cases, the Court would have discretion to grant or deny a hearing. Holmes had not favored this reform.... But Holmes did not openly oppose Taft."[82] Reference must be to the important act of 1925, but some discretionary or certiorari jurisdiction had already been allowed by Congress in 1891.[83] Among other changes, the 1925 statute moved further in this direction by eliminating more of the Court's mandatory jurisdiction.[84] As for Holmes's opposition (for which Novick provides no citation) Alpheus Mason found that Holmes opposed Taft's unsuccessful effort in the 1920s to have the Court empowered to rewrite the federal rules of procedure. According to Mason, misgivings within the Court about the change in jurisdiction came from Brandeis who opposed sweeping legislation and wondered whether it might "not be desirable to introduce a bill lopping off some odds and ends…"[85]

Aichele's and Novick's books appeared more than a half century after Holmes's death. Less common are books published during a Justice's tenure, and only infrequently do books appear within the first fifteen years of a Justice's service.[86] In the last category is Robert Judd Sickels's John Paul Stevens and the Constitution. The book is not a biography of the man who was President Ford's only nominee to the Supreme Court,[87] for there is only a little attention paid to Justice Stevens's formative years or to other aspects of his life before his appointment by President Nixon as a judge on the Court of Appeals for the Seventh Circuit in 1970.[88] Sickels's study is more narrow, "an analysis of a pragmatic, independent-minded judge's thoughts about judicial review and the Constitution." Even though Sickels believes Stevens came to the Court with a well-conceived judicial role in mind[89] his subject "has been something of an enigma." Even though he was the only new arrival between 1972 and 1981, and was therefore understandably the focus of attention, there is "still no widespread understanding of [his] judicial philosophy." That philosophy is present in his opinions, but because it reflects primarily a pragmatic method and a concern for clarity, rather than conservatism or liberalism, "it has not caught the public eye."[90]

The Stevens method is "balancing," which entails open-mindedness and a willingness to gather and weigh facts as the complexity of each case requires. It involves a respect for precedent as well as constitutional and statutory text, and a deference to the judgments of legislators, bureaucrats, and trial judges when their expertise and first-hand observations matter. His approach is much like that of the second Justice Harlan who

Stevens's distinguishing mark is not value-free balancing but sensitivity to a diversity of values. Unlike other balancers such as Frankfurter, however, Stevens is less likely to defer to legislative authority. To support this assessment Sickels has compiled comparative voting statistics for members of the Court during eleven terms. Moreover, an appendix to the book contains a "sampler" of excerpts from six opinions illustrating Justice Stevens's judicial mind at work.

In this compound balancing, certain values usually have priority over others: due process "has an edge over equal protection," as do liberal values over conservative ones. There seems to be no "mechanical preference" for one side or the other as is true of more ideologically oriented members of the Bench.[92] For precisely this reason, Sickels predicts that persons like Stevens will probably not be chosen for the Supreme Court in the near term. "It is an age of ideology again."[93] Yet Sickels could also have concluded that, precisely in this age of ideology, persons like Stevens may prove especially attractive to Presidents.

No institution operates free of history, especially its own. The Supreme Court may be vastly different from the Court over which John Jay presided, but the Court of the late eighteenth century, no less than the more familiar Court of the nineteenth century, has left a mark which remains.

The earliest years of the Supreme Court are the subject of the ambitious multi-volume series entitled The Documentary History of the Supreme Court of the United States. 1789-1800. Under the principal editorship of Maeva Marcus and with support from The Supreme Court Historical Society, The Documentary History unveils the Court's first and least familiar decade.[94] These years witnessed a struggle with identity which has not been generally understood. Between 1789 and 1800, three Chief Justices and ten Associate Justices took their seats on a Bench the membership of which had been fixed by Congress at six.[95] Low prestige compounded the frequent turnover. The President's first choice for a seat refused nomination on more than one occasion. There were only a handful of constitutional decisions, even if a few of them such as Chisholm were highly significant. Indeed, there were relatively few decisions of any kind. For those accustomed to writing about the "Marshall Court," the "Fuller Court," or the "Warren Court," the common designation of the first decade simply as the "pre-Marshall Court" says much about latter-day perception and knowledge of the institution's beginnings.

Volume two of The Documentary History portrays the Justices during the first half of this least-known era in what is probably their least-appreciated capacity--as circuit judges. In a contemporary three-tiered federal judicial system containing the district courts, the courts of appeals, and the Supreme Court, each staffed by a different set of judges, it is easy to forget that the Judiciary Act of 1789 created a three-court system staffed by only two sets of judges. There were at the outset no separate circuit court judges. Instead, the circuit courts were operated by the judges of the district courts and the justices of the Supreme Court. Moreover, aside from admiralty and certain other cases, the circuit courts were not appellate tribunals, but, like the district courts, were trial courts dealing with different kinds of litigation. Two Justices were assigned to each circuit; a quorum for semi-annual sessions consisted of one Justice and the district judge. In 1793, Congress began a long process of reducing the circuit duties of the Justices by requiring attendance of only one Justice at circuit court.[96] In the absence of the district judge, the Justice alone could hold circuit court. (There were existing models for such "mixed" judiciaries. The Pennsylvania Supreme Court had a trial court jurisdiction, some of which persisted until 1874. Moreover, its Justices rode circuit, a peripatetic responsibility which survives today as the court, unlike the high courts of most states, annually sits in three locations.)[97]

The volume is not a history of cases decided by the early circuit courts. Rather, the editors have brought together a massive, chronologically arranged, collection of 457 pieces of correspondence, newspaper articles, diary entries, and grand jury charges which "reveal some aspects of the lives of the justices as they rode circuit and [which] provide some insight into a number of significant issues that came before them..."[98] In addition, there are five appendices containing pertinent statutes and court calendars. Throughout, the editors have interspersed some seventy portraits, maps, and other illustrations.

A bonus of the compilation is the insight some of the documents provide into the private lives and personalities of the Justices. Some of the glimpses are treasures. There is, for example, the letter from John Quincy Adams to Thomas Boylston Adams in June 1793:

Justice James Wilson was fifty-one at the time; Hannah Gray, who became the second Mrs. Wilson, was nineteen.

More apparent from beginning to end is evidence of the rigors of the Justices' work and the devotion they must have had to Court and country. Not only were the travels long, but each Justice paid his expenses out of his own salary. Unless staying with friends, accommodations were rarely ideal. Justice Cushing once found himself with twelve other lodgers in single room, and Justice Iredell reported encountering, unexpectedly, "a bed fellow of the wrong sort."[100] The travels were also frequently arduous. As the Justices wrote to Congress in 1792, "some of the present judges do not enjoy health and strength of body sufficient to enable them to undergo the toilsome Journies [sic]." In 1793, arriving in Boston by boat from Philadelphia, Justice Blair was examined by the health officer to make sure he was not carrying yellow fever.[101] In 1800, while crossing the frozen Susquehanna River at Havre de Grace, Maryland, Justice Chase fell through the ice and almost drowned.[102] Justice Iredell apparently kept the most detailed chronicle of his "journies." As the editors explain, "His letters to Hannah [his wife] often take on a marveling, enthusiastic quality as he describes his journeys from town to town and court to court. Without Ire-dell the chronicler, these volumes would not be possible."[103]

Circuit-riding generated professional as well as personal worries. Since there was no intermediate body between the circuit courts and the Supreme Court (the circuit courts of appeals were not established by Congress until 1891; the circuit courts survived until 1912), Justices would face on appeal cases they had decided as circuit judges. This feature of the system raised questions at the start. As Attorney General Randolph explained in a report to Congress, "The detaching of the judges to different circuits, defeats the benefit of an unprejudiced consultation."[104] The Justices felt so strongly about their dual role that after President Washington invited them to send him their impressions of the new judicial system, they collectively prepared a letter in September detailing their objections.[105] The letter was virtually an advisory opinion, indicating why the existing system was incompatible with the Constitution.

Two months later Chief Justice Jay wrote Washington his views on several other constitutional issues such as the currency and roadways.[107] Yet later, when Washington (at Secretary of State Thomas Jefferson's behest) requested an advisory opinion on presidential regulations enforcing the Neutrality Proclamation of 1793, Jay tactfully declined because of the doctrine of separation of powers, a position which remains the rule today.[108] (Ironically, Jay, acting in a behind-the-scenes role, had prepared the first draft of the proclamation for Washington.)[109]

Charges to grand juries in the circuit courts are examples of the Justices' thinking about the Constitution as well as their role as jurists-on-the road. For example, Chief Justice Jay's first charge to the grand jury in New York included these sentiments:

Sometimes charges were preceded by prayers offered by local clergymen, as in Providence, Rhode Island, in 1793.[111] Sometimes grand juries in their replies to the charge or in presentments would offer opinions on a range of current issues. A grand jury in Georgia in April 1793 complained of "depredations" by Creek Indians, protested the Supreme Court's decision in Chisholm v. Georgia, and observed "that no attention seems to have been paid to the Presentment of the last Federal grand Jury at Savannah, relative to appropriating a fund for building a Seaman's Hospital in this Port.[112]

As an addition to the literature on the Court, The Documentary History opens a window to a time long past. The view is both engaging and instructive.

The Court's decision making process as well as its past shapes its decisions. Unlike the old circuit courts, decision making in the Supreme Court customarily involves all the Justices because the Court sits as a collegial body. Glimpses of its internal workings promote understanding. "That the Supreme Court should not be amenable to the forces of publicity to which the Executive and the Congress are subjected is essential to the effective functioning of the Court," Justice Frankfurter argued. "But the passage of time may enervate the reasons for this restriction, particularly if disclosure rests not on tittle-tattle or self-serving declarations."[113] Two recent books shed light on an important dimension of the Court at work: influence.

The Antagonists by James F. Simon should have wide contemporary appeal. Within its pages are revealing portraits of strong-willed personalities like Hugo Black and Felix Frankfurter, clashing positions on civil liberties, debates on the role of the Supreme Court in American government, and a tug-of-war for the mind of the Court and the nation in the mid-twentieth century. This is the stuff of good fiction, but in this case it is also fact.

No stranger to research on the Court and its Justices,[114] Simon has drawn on a wide range of primary and secondary sources, including the extensive collection of papers of Justice Frankfurter at the Library of Congress and at the Harvard Law School, the comparatively meager collection of Black's papers, and dozens of interviews with present and former Justices, law clerks, and others who knew them. Simon has also tapped one previously unreferenced source: the files of the Federal Bureau of Investigation. The "thick dossier on Frankfurter" contains both "crank letters" and "serious investigative reports." One prominent military figure accused the Justice of being "the brains behind the Communist conspiracy in the U.S." A leading motion picture mogul "reported to the FBI that Frankfurter was a radical to be watched carefully." There were also questions about Frankfurter's American citizenship because of the possibility that Leopold Frankfurter, his father, had never become a naturalized citizen. Director Hoover instructed investigators to "go thoroughly into this and get all the facts." (Doubts over father Leopold's citizenship proved unfounded. The FBI established that he had become a naturalized citizen in 1898.)[115]

As Supreme Court Justices, Frankfurter and Black wrestled with a dilemma bequeathed by the Framers: freedom from direct accountability to the electorate has invited rule by judges, but this independence has worked a constraint. Even before their appointments to the Court by President Franklin Roosevelt, both men were acutely aware of the tensions that abrogation of the popular will entailed. Over a long judicial career each attempted to construct an elaborate resolution which helped to define constitutional jurisprudence for a third of a century. And the reverberations of the debate between these giants continue. "No two members of the modern Supreme Court," Simon writes, "have been more important in developing the contemporary constitutional debate than Hugo Black and Felix Frankfurter."[116]

The relationship between Black and Frankfurter was a contest for the intellectual leadership of the Court. This is the heart of the story Simon unfolds. Black was the successful Alabama trial lawyer, United States Senator, and wily politician with no significant judicial experience when Roosevelt named him to the Bench in 1937. Justice Stone, for one, was so troubled by Black's judicial technique that he asked Professor Frankfurter for help. "Do you know Black well?" Stone wrote Frankfurter in February 1938.

Frankfurter's "great assistance" took the form of a long schoolmaster's memorandum to the new Justice.

Frankfurter was the Harvard-educated constitutional scholar and nationally known civil libertarian. His appointment to the Supreme Court followed Black's by less than two years. As one journal commented editorially, "No other appointee in our history has gone to the Court so fully prepared for its great tasks."[118]

For good reason, therefore, most expected Frankfurter to assume the mantle of intellectual leader of the newly emerging Bench. While the President had to wait until his second term to make his first appointment, seven new Justices sat on the "Roosevelt Court" before the end of 1941. Only Justice Roberts and newly elevated Chief Justice Stone survived from the Hoover and Coolidge Administrations. Rarely had the Court's membership changed so completely at such a momentous time. But popular expectations were wrong.

The famous flag-salute cases were the initial battleground. Over religious objections by Jehovah's Witnesses, the Court in Minersville School Board v. Gobitis[119] upheld a school board in Pennsylvania which required all students to salute the flag. Justice Stone was the lone dissenter. Chief Justice Hughes assigned the opinion to Frankfurter apparently for two reasons: first, at conference Frankfurter had made a moving statement about the role of the public schools in instilling patriotism in a pluralist society; second, Hughes considered the "effect that Frankfurter, one of the most celebrated civil libertarians of his generation, would have on his countrymen when he argued in his opinion that the claim of the free exercise of religion...should not prevail."[120]

Frankfurter's position and opinion even earned the vote of arch-civil libertarian Justice Frank Murphy who confessed to Frankfurter, "this has been a Gethsemane to me. But after all, the institution presupposes a government that will nourish and protect itself and, therefore, I join your beautifully expressed opinion."[121] This may explain why Murphy chose not to join Stone's dissent. (A biography of Murphy explains that he had abandoned a draft dissent of his own, presumably unwilling to be the freshman Justice writing against Chief Justice Hughes's position.)[122] Black, William 0. Douglas, and Stanley Reed (the second Roosevelt appointee) also went along. Yet Simon reports that Black's position was not as clear as his vote in the case suggests. It seems that he was one of only two Justices (Stone was the other) who had not declared his vote at the conference.

It is well known that Black, Douglas, and Murphy not only later changed their minds about their votes in Gobitis but soon in Jones v. Opelika[124] publicly acknowledged their error. But Black had made up his mind less than three months after the first flag-salute case. Simon reprints the entry Frankfurter made in his scrapbook of a conversation with Douglas: "Hugo thinks maybe we made a mistake in Gobitis," Douglas told Frankfurter. "Has Hugo been rereading the Constitution?" asked Frankfurter. "No, he's been reading the newspapers," Douglas replied.[125] Reversal came in West Virginia Board of Education v. Barnette[126] in 1943, where the Court struck down on free speech grounds West Virginia's flag-salute requirement. This time the vote was six to three, with Stone, Black, Douglas, and Murphy joining the recently appointed Justices Jackson (who wrote the majority opinion) and Rutledge. Frankfurter's dissent commanded the support of Justices Reed and Roberts from the Gobitis majority. For Simon, the Court's startling about-face marked the beginning of the decline in Frankfurter's influence among his colleagues. Respected still, his views would no longer command the adherence among "the brethren" which observers anticipated in 1939. It was the jurisprudence of Black, not Frankfurter, which would later prevail in many of the Warren Court's major decisions.

Tension over constitutional doctrine is what one would expect in a book entitled The Antagonists. And the title suggests more--the personal relations among Justices which also affect the Court's decision making process. Justice Frankfurter once remarked to Chief Justice Vinson that the Court was like a family.[127] The characterization brings to mind teamwork, mutual support, and loving concern. Simon demonstrates that differences over doctrine did not mean that Black and Frankfurter were personal enemies. Much of the book shows exactly the opposite. Though they thought differently and frequently voted for opposite results, a strong bond of mutual admiration developed between the two. Yet Simon shows that the Court can be like a family in another, and unflattering, respect. Frankfurter had a habit of indulging in "vituperative gossip" about less-favored colleagues. His "all-time low in scurrility" may be a letter to Harlan in 1958, which complained about Black's plan to attend the annual meeting of the American Bar Association: "I have little doubt that Hugo now believes it will help the Court, for he has infinite capacity--beyond anyone I've known--for self deception."[128] Despite such comments, Frankfurter conducted himself on a "higher level" by extending courtesies to Black, including invitations to private luncheons for visiting dignitaries and special attention to his wife Josephine and the three Black children. Black's style was different. He "had long ago learned the value of muting acrimony toward colleagues..., and accentuating their good qualities. It had made for more effective advocacy in the conference room...."[129]

A note Black sent Frankfurter shortly after declining health drove the latter to retirement in 1962 captures his approach: "we're going to miss you on the Court because we need you." For Simon, Black had paid his former colleague the highest compliment. "Black's core message was, in fact, true. The Court and the nation were stronger because Black and Frankfurter had served together.[130] Intellectual clashes pushed each to his best.

Like The Antagonists, The Unpublished Opinions of the Burner Court by Bernard Schwartz depicts the Court at work as it tries to resolve the questions that divide and perplex the nation. Rather than demonstrating influence through clashing personalities, Schwartz lays bare the Court's decision making process through a study of judicial give-and-take in ten decisions rendered between 1970 and 1979.[131] The book is a companion to The Unpublished Opinions of the Warren Court[132] and is modeled after Alexander Bickel's The Unpublished Opinions of Mr. Justice Brandeis.[133] Schwartz sets out to illustrate the "collaborative efforts in which nine individualists must cooperate to bring about the desired result."[134] As Felix Frankfurter prophetically explained two years before his own appointment to the Bench,

Frankfurter was correct--much life "stirs" in The Unpublished Opinions.

Schwartz organizes each chapter around one of the ten cases, reviewing its history, alignment of the Justices at conference, and initial drafts of opinions. He then reprints a previously unpublished lead opinion with a discussion of how that opinion took its final form (as a majority, plurality, or dissenting opinion) in the United States Reports. Of particular interest is his speculation about the impact on the government and the nation had opinions come down in their earlier form.

For example, chapter 3 introduces Frontiero v. Richardson's[136] (initially, Frontiero v. Laird) and the subject of gender discrimination. While the Warren Court is remembered for a host of landmark rulings in civil rights, that Court dealt only once with gender discrimination, and when it did, the Court upheld the challenged law.[137] In Reed v. Reed,[138] decided after Warren Burger became Chief Justice, the Court first ruled that a gender-based distinction (here, a state's preference for males over females in selecting administrators for estates) violated the rationality standard required by the equal protection clause. Frontiero challenged a Defense Department policy on payment of quarters allowances for dependents which required proof of need from female claimants but not from males. According to Schwartz, the majority voted at conference to strike down the regulation because, like the law in Reed, it lacked minimum rationality.

Justice Brennan drafted an opinion (which Schwartz reprints) reflecting the conference consensus. The covering memorandum explained that he did not reach

Brennan then decided that Frontiero should rest on the higher standard, not the lower standard of Reed. There ensured an exchange of memoranda among the Justices debating this point. The outcome of the case was never m doubt (the government lost by a vote of eight to one), but the appropriate constitutional test was. In the end, Brennan's opinion never acquired a fifth vote, and so what had begun as a consensus opinion structured around the rational basis test appears in the Reports as a plurality opinion resting on strict scrutiny. Had the initial draft prevailed, Schwartz believes that it is unlikely that the Court would have later abandoned that approach in gender discrimination cases. As it was, Brennan's sortie in Frontiero led to a compromise majority position three years later in Craig v. Boren.[140]

Obviously, the account of Frontiero and the other cases derives from sources to which most students of the Court lack access. Schwartz is careful to say that all the opinions were made available to him "on a confidential basis." Moreover, he draws on interviews with Justices and Court memoranda, sources he documents in endnotes, except where necessary to protect confidentiality. While some have raised questions--ironically in at least one in-stance by a journalist--about the propriety and desirability of publication of internal Court documents at least while participating Justices are still sitting members of the Court,[141] some members of the Court have evidently concluded that no harm is done after some period of time. (Nine years lapsed between the most recent decision in 1979 and publication of the volume in 1988.) Otherwise Schwartz could not have written this book.

What is learned from The Unpublished Opinions? Overall the benefit to the reader would be measurably greater had the volume contained an index. The judicial literature of the past several decades has generously documented the collaborative nature of the Court's work even if it is true, as Schwartz believes, that the collaboration is not widely known. At least since publication in 1956 of Alpheus Mason's biography of Chief Justice Stone,[142] studies of the Court have disclosed that compromise, politicking, bargaining, and vote switches are the rule, not the exception, at the Marble Palace. The sagas Schwartz chronicles sustain the observation J. Woodford Howard made of the Supreme Court in the years 1940-1949, that "hardly any major decision.., was free from significant alteration of vote and language before announcement to the public."[143] Yet Schwartz does more than confirm that this fluidity was true of the 1970s as well. Along with ample detail of the decision making process in a series of important cases are jurisprudential and personal insights into the behavior of individual Justices, most of whom arrived at the Court after publication of the landmark studies.

Scholars delve into the Court's process because of its influence on decisions. Because cases like Frontiero are politically significant, the Court has long been a major participant in American government Two recent books venture into some of the Court's most controversial rulings.

In Truman's Court, Frances Howell Rudko combines attention to the Court, its Justices, the process, and decisions during the tenures of Chief Justice Vinson and Justices Burton, Clark, and Minton. President Truman named each to the Court between 1945 and 1949. Of the four, Clark served the longest, from 1949 until his retirement in 1967. The volume is thus not a study of the work of the Vinson Court (1946-1953) but an examination of the decisions in which one or more of the Truman appointees took part between the end of World War II and the height of the Vietnam War. C. Herman Pritchett's book on the Vinson Court[144] looked at civil liberties decisions during part of this period, but Pritchett largely ignored the Truman appointees, except for Vinson himself. Rudko's research took her to the Court's decisions and the expected published sources, but she consulted manuscript collections and oral histories as well. Of these, Justice Burton's papers were apparently the most helpful.

Based on the contentious issues of the period such as judicial and criminal procedure, loyalty-security, racial discrimination, and rights of aliens, she concludes that a judicial philosophy of restraint--not political ideology--explains why, among the Justices with whom they sat, Vinson, Burton, Clark, and Minton were least supportive of civil liberties claims. Rudko acknowledges that the concept of judicial restraint itself can be politically misleading because it does not have to support a particular ideology. Referring to the conflict in 1987 over the confirmation of Judge Bork to the Supreme Court, she contends that both Bork's leading supporter [President Reagan] and his most politically conspicuous adversary [Senator Biden] sought to obscure their differing political motivations by adopting a similar stance in favor of a politically neutral Court in which 'restraint' carried positive implications while 'activism' had negative connotations."[145] Moreover, judicial restraint can be misunderstood. Even though Justice Clark wrote an opinion, in the Steel Seizure Case[146] against President Truman's claim of authority--thus seeming to be an "activist" because the Court substituted its view of presidential authority in place of Truman's--Clark's reliance on precedent in his opinion demonstrated judicial restraint. "Clark deferred to the legislative branch instead of to the executive branch as Truman would have preferred."[147]

Of course not all of the votes and opinions by the Truman four can be categorized as restraint-oriented. After Chief Justice Vinson's death, the three joined Chief Justice Warren's opinion of the Court in Brown v. Board of Education. Moreover, Justice Clark wrote the majority opinion in the landmark exclusionary rule case of Mapp v. Ohio,[148] and concurred in the far-reaching Tennessee reapportionment case of Baker v. Carr,[149] to name but two. Nonetheless, she contends that the overall preference of the four for restraint governed most of their votes, yet their position did not grow out of a "controlling philosophy of law." In this they were unlike their more articulate colleagues Black and Frankfurter. Instead their votes stemmed from a view of government as a cooperative instrument to satisfy the needs of the nation which were reflected in statutes and administrative law.

The Reports show that the Truman four routinely voted against the rights of criminals, aliens, and alleged subversives. During 1946-1953, Vinson voted 83 percent of the time to reject a claimed individual right. For the other three, the percentages were 74 for Burton, 75 for Clark, and 87 for Minton.[150] Rudko believes such numbers are misleading because they suggest the four placed no value on the rights in question. Rather, they chose to give

If they voted similarly, it was not because they held identical beliefs on the weight which should be accorded individual liberty, but because they shared the same belief in the judiciary's place in a democratic government.

In contrast to the breadth of Truman's Court, The Christ Child Goes to Court embraces a single, if complex, part of the modem Court's jurisprudence: the establishment clause of the First Amendment.[152] A case study in its methodology and organization, Wayne Swanson's Christ Child is a thoughtful and instructive look at Lynch v. Donnelly,[153] the Supreme Court's first crèche decision. In dispute was a municipally owned nativity scene which the city of Pawtucket, Rhode Island, purchased in 1973. Along with secular holiday figures, the crèche had annually been part of a display in a private park. Litigation began on December 17, 1980, with a suit filed in United States District Court by the American Civil Liberties Union on behalf of Daniel Donnelly, a resident of Pawtucket, against Mayor Dennis M. Lynch and the city. It concluded on March 5,1984 when the Supreme Court ruled five to four that the city had not violated the establishment clause. From the first page to the last, Swanson depicts the judicial process and the unfolding of a contemporary constitutional issue.

The subject is an excellent barometer of the establishment clause. How courts decide, and how people respond to, cases involving public-sponsored displays of religious symbols reveal much about the evolving relationship between religion and government in the United States. Unlike sectarian school aid, a public display is rarely touched by a broader social purpose such as improving education. Moreover, as a constitutional issue, the controversy arises easily. In most localities it does not require passing a law or ordinance. It may involve little or no expenditure of public funds. It can happen as easily as allowing a group to erect a display on the courthouse steps. Perhaps for these reasons, a crèche case is a good test of religious establishment. This writer's view is that Americans are virtually united in believing in separation of church and state, but that this consensus is uncertain.[154] While there are doubtless policies that most would consider in conflict with the Constitution's command of no establishment, there are other connections between the state and religion which many would find unobjectionable.

Church-state cases have been a recurring part of the Supreme Court's docket since the Justices applied the establishment clause to the states in 1947.[155] Some of this litigation has challenged state support for religious endeavors, such as public assistance for sectarian schools. Like Donnelly, other litigation has contested a religious presence in official settings or programs. All the litigation has been difficult because of the prevalence of religion in American life. The difficulty has been compounded because even the Court has sent conflicting signals.[156] In 1947, for example, Justice Black declared for the Court:

Five years later, Justice Douglas offered a different perspective, again for a majority of the Bench.

Difficulties with application of the establishment clause also arise because, as Swanson explains, the language of this part of the First Amendment conflicts with practices that appear to many both harmless and congenial. "I am convinced," Justice Brennan declared in his dissent in Donnelly, "that this case appears hard not because the principles of decision are obscure, but because the Christmas holiday seems so familiar and agreeable."[159]

Swanson makes no pretense of resolving the issue, although he also makes no pretense of hiding his own prescription for correct constitutional policy.[160] Writing perceptively before the Court's second crè