The Supreme Court in Current Literature

PUBLICATIONS July, 1976–June, 1977

Last year in surveying the literature on the Supreme Court,¹ the authors presented an overview of the books published for the years 1964 through June, 1976. A total of three hundred and ninety-three titles were surveyed for that period. The year with the greatest number of titles was 1971, with forty-six; since then each year, except for 1974, has shown a decline: 1972:36; 1973:35; 1974:38; 1975:22, 1976:17. As nine titles were published during the first six months of 1977, it is apparent that despite the decline in the rate of publication, there is still great interest in the Supreme Court of the United States. We shall leave it to other commentators on the Court to reflect on the significance, if any, of the fewer titles published in recent years.

PART 1, BOOKS

This survey covers the fourteen books published between July 1, 1976 and June 30, 1977.2 Of these, five are concerned with the role of the Court within our constitutional framework, one with the operation of the Court, and five deal with its opinions and decisions. Three are biographical works, and include the memoirs of Chief Justice Earl Warren, a biography of Justice Hugo Black and a selection of the opinions of Justice William 0. Douglas.

Supreme Court and the Constitution

Abraham, Henry J. The Judiciary; the Supreme Court in the Governmental Process. 4th Ed. Boston: Allyn and Bacon. 1977. 228 pages.

This fourth edition of Abraham's The Judiciary is a thorough analysis of the judicial function of the Supreme Court in the governmental process. Designed for laymen as well as students of political science, the volume is divided into three concise chapters. The first is an analysis of the organization and procedures of the U.S. court system while the second deals with the Supreme Court's role in protecting individual freedoms. The final and most provocative section of the book explains the Court's role as a maker of public policy and the power of judicial review. Though perhaps overly simplistic, Abraham's work is still a fine introduction to the mechanics and influences of the U.S. judiciary.

Funston, Richard T. Constitutional Counterrevolution? The Warren Court and the Burger Court: Judicial Policy Making in Modern America. Cambridge, Mass.: Schenkman Publishing Company. 1977. 399 pages.

Constitutional Counterrevolution by Richard Funston concentrates primarily upon Supreme Court activity in the areas of civil rights, legislative appointment, criminal procedure, and obscenity. Funston's approach has been to summarize the case law surrounding these issues while also critically discussing the law itself. A major portion of the volume is devoted to the relationship between the Warren and Burger Courts. The author thoroughly discusses the "continuities and discontinuities" in the decision-making of the courts. Funston emphasizes that the break between the two courts is not as great as it is usually claimed to be, nor perhaps as great as it should be. Constitutional Counterrevolution, though written for the educated layman rather than the constitution scholar, is extremely well-documented, including a comprehensive bibliography, case name table and subject index.

Kilgore, Carol D. Judicial Tyranny. Nashville: Thomas Nelson. 1977. 370 p.

In Judicial Tyranny, Carrol Kilgore presents an extremely critical analysis of the Supreme Court and its role as protector of the United States Constitution. Kilgore's central argument is that the Supreme Court, especially in the past two decades, has not adhered to the supremacy of the law or the Constitution, and has generally abused its position in the American governmental process. Using excerpts from an extensive selection of recent opinions, the author illustrates how the Supreme Court has twisted the meanings of many clauses of the Constitution, especially those dealing with individual freedoms. Much of Kilgore's discussion also centers on the Court's support of federal interference in many areas of business and local affairs not intended by the Constitution. Though this work is exceedingly biased and fails to offer any practical solutions to the problems discussed, Judicial Tyranny remains a sound history of recent Supreme Court action.

Selakovich, Daniel. The Supreme Court: Does It Protect or Limit Our Freedoms. Boston: Allyn and Bacon. 1976. 122 pages.

The Supreme Court: Does It Protect or Limit Our Freedoms, by Daniel Selakovich offers an extremely basic introduction to the federal judiciary. Directed toward college students with little background in American government, the volume covers such topics as the structure of the Court, appointment of judges, and important Constitutional issues which have faced the Court. The text is heavily supplemented with excerpts from important cases, interviews, and magazine articles. Also a variety of open-ended questions aimed at stimulating the reader's interest are interjected throughout the book. Though very simple in its approach, Selakovich's work is surprisingly thorough and presents an acceptable overview of a very complex subject.

The Supreme Court and How It Functions

Casper, Gerhard and Posner, Richard A. The Workload of the Supreme Court. Chicago: American Bar Foundation. 1976. 118 pages.

This follow-up to a 1974 American Bar Foundation study presents the statistical evidence surrounding the controversy of whether the Supreme Court is, or is soon to become, overly excessive. The new work attempts to statistically examine the growth pattern of the Supreme Court caseload. The authors offer a critical discussion of the past and probable future growth of the caseload in regard to the Court's actual workload, and present the argument that there is presently no statistical basis for assuming that this workload has reached crisis proportions. This comprehensive analysis is exceptionally well organized.

The Justices of the Supreme Court

Countryman, Vein. Ed. The Douglas Opinions. New York: Random House. 1977. 465 pages.

William 0. Douglas participated in the issuing of over 1,200 opinions during his prolific 36-y'ear career on the Supreme Court bench. Vein Countryman has selected excerpts from 93 of the opinions which best exemplify Douglas' position on various issues ranging from civil rights to due process to privacy. Countryman has grouped the excerpts by whatever issue is concerned and begins every chapter with a brief discussion of the question of law involved. The volume is extremely well-organized and could prove very useful when used in conjunction with other works on Douglas and the Supreme Court.

Dunne, Gerald T. Hugo Black and the Judicial Revolution. New York: Simon and Schuster, 1976. 492 pages.

An intricate blend of biography and historical analysis, Mr. Dunne's work provides a very personal account of the life and times of Hugo Black. The major emphasis is directed towards Black's years on the Warren Court and his participation in several landmark decisions. The author does not neglect, however, the early years of Black's career and some of his less commendable exploits such as membership in the KKK. Well-indexed and documented, this biography is both comprehensive and entertaining.

Warren, Earl. The Memoirs of Earl Warren. Garden City, N.Y.: Doubleday. 1977. 394 pages.

The Memoirs of Earl Warren comprises an intriguing chronicle of the former Chief Justice's fifty years of public service. The volume describes intimately Warren's rise from Los Angeles District Attorney to U.S. Supreme Court Justice. The chapters on the early years of Warren's career are particularly valuable as they cover an era often neglected by other authors. The section on the Supreme Court years, incomplete at 'the time of Warren's death, obviously needs expansion and the analysis of the Warren Commission investigation of John Kennedy's assasination is very disappointing. The text does, however, adequately define the role Warren played in landmark decisions affecting racial desegregation of schools, voting rights and the protection of personal freedoms. Though far from objective, Warren's book is truly excellent for its insights into the personality and private thoughts of a man whose career was filled with such controversy and dissent. The writing style is extremely readable.

Opinions and Decisions

Abraham, Henry J. Freedom and the Court; Civil Rights and Liberties in the United States. 3rd ed. New York: Oxford University Press. 1977. 482 pages.

Abraham's third edition of Freedom and the Court is, like its predecessors, an analysis of the role the judicial branch of the federal government plays in protecting the rights of the American citizen. The first three chapters comprise a general evaluation of the powers of the Supreme Court and the part it has played historically in protecting individual liberty. The remaining chapters address themselves to specific issues such as due process of law, religion, freedom of expression and race. The author explores the Supreme Court's treatment of each issue, offering historical background, a synopsis of important related cases and an evaluation of constitutional significance. The analyses of various issues are extremely thorough, well organized, and up to date through 1976.

Anderman, Nancy. United States Supreme Court Decisions: An Index to Their Locations. Metuchen, N.J.: Scarecrow Press. 1976. 316 pages.

This reference tool provides an excellent index to secondary sources containing excerpts from or complete reprints of Supreme decisions. Two especially helpful aspects of this well-organized volume are a case name index and a subject index.

Devol, Kenneth. Mass Media and the Supreme Court: the Legacy of the Warren years. 2nd ed. New York: Hastings House. 1976. 400 pages.

This work edited by Kenneth Devol traces the relationship between the Supreme Court and the mass media from 1953 through 1969. The book is a collection of writings by various authors. addressing problems such as obscenity, censorship, libel and freedom of speech. The individual articles, though well-written, generally rely heavily on direct quotes from Supreme Court opinions, giving the volume an almost casebook approach. However, the coverage of the topic is extremely comprehensive and the amount of information concentrated into this one source quite impressive.

Goldman, Alvin L. The Supreme Court and Labor-Management Relations Law. Lexington, Mass.: Lexington Books. 1976. 191 pages.

This volume attempts to describe and analyze the decisional process the Supreme Court has followed in labor relations litigation. Nearly a quarter of the book is taken up by a section entitled, "Historic Perspective," which traces the Court's role in interpreting federal and state statutes as well as lower court decisions. The remaining chapters discuss the Supreme Court's relation to union activities, labor arbitration, the N.L.R.B., and other issues such as boycotting. Well-documented and indexed, this work's only major flaw lies in the author's failure to adequately compound the wealth of information presented into any clear conclusions as to what role the Court may take in labor relations in the future.

Wasby, Stephen L. Small Town Police and the Supreme Court: Hearing the Word. Lexington, Mass.: Lexington Books. 1976. 264 pages.

One of the most practical books on the Supreme Court published in the last year is Stephen Wasby's Small Town Police and the Supreme Court. This volume is the result of an in-depth study of the methods by which law enforcement officers learn about Supreme Court rulings concerning civil procedure. Interviews with police officers in small towns in Illinois and Massachusetts produced extensive information concerning the backgrounds and attitudes of policemen, their training as to proper criminal procedure, and their perception of how court decisions effect their profession. Special consideration is given to the average policeman's knowledge of opinions pertaining to search and seizure, and informing defendants of their rights. The author concludes that the recent criminal procedure decisions of the Supreme Court have not been adequately transmitted to the police officers and this lack of communication has hindered effective law enforcement. Despite the omission of tables and graphs, which could greatly assist the reader's comprehension of the material presented, the book is extremely well organized with indexes by both case name and subject.

PART II. PERIODICALS

Although there has been a reduction in the number of monographs, the number of periodical articles published during the past twelve months confirms the importance of the role of the Court in American society. Moreover, it is interesting to note that of the 53 articles covered in this survey, nearly one third were published in other than legal periodicals.

Periodical Literature on the Supreme Court Supreme Court and the Constitution

American Liberals and Judicial Activism: Alexander Bickel's Appeal From New to the Old. M. J. Holland. Indiana Law Journal. 51:1025-SO. Summer, 1976.

Failure of the Supreme Court As a Constitutional Institution. E. F. Kunin. Connecticut Bar Journal. 50:323-34. September, 1976.

Government by Judiciary. P. B. Kurland. Modern Age. 20:358-71.

Has the Supreme Court Abandoned the Constitution? Laughlin McDonald. Saturday Review. 10-14. May 28, 1977.

New Dimensions of Constitutional Adjudication. A. Cox. Washington Law Review. 51:791-829. October, 1976. Sovereign Immunity in the Supreme Court: Using the Certiorari Process to Avoid Decision Making. Virginia Journal of International Law. 16:903-29. Summer, 1976.

Supreme Court and Constitutional Change: Lochner v. New York Revisited. D. G. Stephenson, Jr. Villanova Law Review. 62:533-601. April, 1976.

The Supreme Court's Public and the Public's Supreme Court. G. Edward White. Virginia Quarterly Review. 52:370-88. Summer, 1976.

There Shall Be "One Supreme Court." A. J. Goldberg. Hastings Constitutional Law Quarterly. 3:339-44. Spring, 1976.

Nixon-Burger Count

The Burger Court and Unspecified Rights: On Protecting Fundamental and Not-So-Fundamental "Rights" or "Interests" Through a Flexible Conception of Equal Protection. Tinsley E. Yarbrough. Duke Law Journal. 143-170. March, 1977.

Civil Rights in the Burger Court Era. Akron Law Review. 10:327-66. Fall, 1976.

The Nixon-Burger Court and What To Do About It. Ann Fagen Ginger. National Lawyer's Guild Practitioner. 33:143-151. Fall, 1976.

Rodriguez, the "Poor" and the Burger Court: A Prudent Prognosis. Mary Cornelia Porter. Baylor Law Review. 29:199-242. Spring, 1977.

Section 1983 and Federalism: the Burger Court's New Direction. University of Florida Law Review. 28:904-35. Summer, 1976.

State Courts and Constitutional Rights in the Day of the Burger Court. A. E. D. Howard. Virginia Law Review. 62:873-944. June, 1976.

Warren Court Critics: Where Are They Now That We Need Them? I. Silver. Hastings Constitutional Law Quarterly. 3:372-452. Spring, 1976.

Supreme Court and Its Operations

Address to the New Jersey Bar. W. J. Brennan, Jr. Guild Practitioner. 33: 152-68. Fall, 1976.

Inside the Supreme Court. Earl Warren. Atlantic Monthly. 239:35-40. April, 1977.

Judicial Policy-Making and Information Flow to the Supreme Court. C. M. Lamb. Vanderbilt Law Review. 29:45- 124. January, 1976.

Justices Run "Nine Little Law Firms" at Supreme Court. Richard L. Williams. Smithsonian. 7:84-92. February, 1977.

Many Roles of the Supreme Court and the Constraints of Time and Caseload. A. L. Levin, A. D. Hellman. Univer'sity of Toledo Law Review. 7:399-430. Winter, 1976

Supreme Court of the United States: The Staff That Keeps It Operating. Richard L. Williams. Smithsonian. 7:38-49. January, 1977.

Workload of the Supreme Court: a Comment on the Freund Report. R. HodderWilliams. Journal of American Studies. 10:215-39. August, 1976.

The Justices of the Supreme Court

Influence of Sitting and Retired Justices on Presidential Supreme Court Nominations. H. J. Abraham. Hastings Constitutional Law Quarterly. 3:37-63. Winter, 1976.

The Judicial Philosophy of Justice Cardozo. The Basis of a Definitive

Jurisprudence. Rev. Walter T. Gouch. The University of Maryland Law Forum. 6:49-63. 1976.

Mr. Justice Douglas and Government by the Judiciary. Wallace Mendelson. Journal of Politics. November, 1976.

Justice Stewart and Fourth Amendment Probable Cause: "Swing Voter," A Participant in a "New Majority". P. W. Lewis. Loyola Law Review. 22:713-42. Summer, 1976.

Senate and the Court: Questioning a Nominee. L. A. Power, Jr. Texas Law Review. 54:891-901. May, 1976.

Supreme Court Appointments: Criteria and Consequences. T. Halper. New York Law Forum. 21:563-84. Spring, 1976.

What the Justices Are Saying. L. F. Powell, Jr., W. Rehnquist. American Bar Association Journal. 62:1454-6. November, 1976.

Supreme Court and Its History

Documentary Sources for the Study of U.S. Supreme Court Litigation. Part 1. Records and Briefs. E. C. Surrency. Part 2. Resources in the Supreme Court Library. P. Evans. Part 3. Materials in the National Archives. M. McReynolds, Law Library Journal. 69:440-52. November, 1976.

Franklin D. Roosevelt and the Supreme Court. Theresa A. Niedziela. Presidential studies Quarterly. 6:51-56. Fall, 1976.

Franklin D. Roosevelt and the Supreme Court: An Example of the Use of Probability Theory in Political History. Rodney J. Morrison. History and Theory. 16:137-148. 1977.

History and Legal Interpretation: The Early Distortion of the Fourteenth Amendment by the Gilded Age Court. E. M. Gaffney, Jr. Catholic University Law Review. 25:207-49. Winter, 1976.

Partisan Press and the Rejection of a Chief Justice. K. R. Middleton. Journalism Quarterly. 53:106-10. Spring, 1976.

Retirement and Death in the United States Supreme Court: From Van Devanter to Douglas. D. N. Atkinson. University of Missouri at Kansas City Law Review. 45:1- 27. Fall, 1976.

Schneiderman Case: An Inside View of the Roosevelt Court. J. F. Liss. Michigan Law Review. 74:500-23. January, 1976.

Supreme Court and Critical Elections. R. Funston. American Political Science Review. 69:795-811. September, 1975. Reply with rejoinder. P. A. Beck. 70:930-2. September, 1976.

The Supreme and Its Opinions

Commercial Speech Doctrine in the Supreme Court. R. D. Rotunda. University of Illinois Law Forum. 1976: 1080-1101. 1976.

Habeas Corpus and Due Process: From Warren to Burger. N. McFeeley. Baylor Law Review. 28:533-61. Summer, 1976.

Lost Court. J. P. MacKenzie. Civil Liberties Review. 3:36-53. October/November, 1976.

New Patterns in Judicial Control of the Presidency: 1950's to 1970's. P. A. Dionisopoulos. Akron Law Review. 10:1-38. Summer, 1976.

Of Myths, Motives, Motivations and Morality: Some Observations on the Burger Court's Record on Civil Rights and Liberties. H. J. Abraham. Notre Dame Law Review. 52:77-86. October, 1976. Supreme Court and Antitrust Policy: A New Direction. R. A. Posner. American Bar Association. Antitrust Law Journal. 44:141-9. Spring, 1975.

Supreme Court and Its Impact on the Court of Military Appeals. S. L. Silliman. Air Force Law Review. 18:81-93. Summer, 1976.

The Supreme Court and Sexual Equality: A Case Study of Factors Affecting Judicial Policy-Making. Philippa Strum. Policy Studies Journal. Winter, 1976.

Supreme Court's Still Changing Attitude Toward Consumer Protection and Its Impact on Integrity of the Court. J. T. McDermott. Montana Law Review. 37:27-38. Winter, 1976.

Supreme Court's Three Tests of the Establishment Clause. R. B. Flowers. Religion in Life. 45:41-52. Spring, 1976.

Supreme Court 1974 Term: The Allocation of Power in Deciding Labor Law Policy. F. Bartosic. Virginia Law Review. 62:533-601. April, 1976.

Supreme Court 1975 Term–Foreword: In Defense of the Anti-Discrimination Principle. P. Brest. Harvard L. Review. 90:1-282. November, 1976.

Thomas Hill Green, Positive Freedom and the United States Supreme Court. M. J. Phillips. Emory Law Journal. 25:63- 114. Winter, 1976.

21. S. Supreme Court and the Exclusionary Rule: Trimming the Branches of the "Fruit of the Poisonous Tree Doctrine." Laurence Greene. Journal of the Beverly Hills Bar Association. 10:10-29. November-December, 1975.

What the Supreme Court Is Really Telling Business. Walter Guzzardi, Jr. Fortune. 95:147-155. January, 1977.

Duncan Phyle Table and Chairs, Sheraton Sideboard, Clock–Recent

Acquisitions.