The Judicial Bookshelf'[1]

by D. Grier Stephenson, Jr.

"[I]t seems to have been reserved to the people of this country' observed Alexander Hamilton, . . . to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force."[2] Key to the continuing American experiment with "reflection and choice" has been the Supreme Court of the United States which Hamilton expected to "construe the laws according to the spirit of the Constitution. . . ."[3] "Deducible from the general theory of a limited Constitution," judicial review has made the Court a compelling force in the plan of union the framers devised. Attempting to resolve issues which divide and perplex the nation, the Court contributes both symbolically and substantively to the strength and vitality of constitutional government.

Because the Court matters politically, it has understandably been subject to continuing scholarly and journalistic oversight. Such scrutiny has been especially important for the judiciary 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 thus been a source of the institution's legitimacy as a check on popular power.

Yet, something besides the political consequences of judicial decisions must account for the attention the Court receives. Certainly, the scale and uniqueness of the institution invite and facilitate scrutiny. After nearly two hundred years, the entire succession of justices numbers only slightly more than the present number of United States senators. While there have been forty presidents, there have been only fifteen chief justices. Second, the work of the Court is relatively open. In the churning sea of government today, the Court institutionally seems like an island of procedural calm. Precedents, briefs, argument, and opinions are public and readily available. Only the conference and the actual shaping of the opinions remain hidden from view Even the veil shrouding this stage of the process ascends after a time, as justices take steps to preserve their papers. Third, the scope of the Court's business is intellectually manageable. One can grasp the substance and significance of the decisions of one term in a way that cannot be matched in a survey of the voluminous output of a session of Congress or the rulings of executive agencies.

Circumstances conducive to study and analysis partly explain therefore the volume of writing about the Court. However, they by no means produce a uniformity of view, as recent books amply demonstrate.

The Justices

Publication of a biography of a justice is always a special event, for it is through such books that students of the Court have gleaned so much about the institution's decision-making procedures as well as the contributions of individual members. Some years ago, J. Woodford Howard, himself a biographer of Justice Murphy, identified the prime objects of a judicial biography as the description and relation of "the judge's personality, background, and belief system to his conduct on the bench and impact on the law and politics of his time."[4]

R. Kent Newmyer's Supreme Court Justice Joseph Story[5] meets this test and does more. Newmyer's is at least the third major volume on Story to appear within the past two decades. Gerald Dunne's 1971 biography[6] excelled in drawing within its pages a portrait of Story the man. Joseph McClellan's biography which appeared the same year[7] stressed Story's jurisprudence and included generous excerpts from his extensive writings.

Newmyer's is different because it absorbs the events of Story's day as a backdrop to illuminate his life. Already thoroughly familiar with this period of the Court's history,[8] Newmyer reveals Story as a major figure on a stage with changing scenes at a vital time in American history. Story "belonged to that generation touched by the idealism of the American Revolution. He grew up with the Republic, intermingled his ambition with its fate. Story brought to bear his own special genius, to be sure, but his singular talent would not have blossomed so brilliantly or produced so copiously except for the rich soil of republican culture?[9] By "republican culture" Newmyer means the ideological ground shared by Americans: "that a successful revolution and a bountiful providence had marked out the American republic for a special destiny?[10]

Newmyer highlights the "symbiotic connections" between Story's view of the law and the life of the nation. So Story's legal practice appears not just as an example of legal culture in early nineteenth-century Massachusetts but as a reaction to the rise of political parties. Even his years of teaching at Harvard Law School (all the while remaining a Justice) and the outpouring of legal treatises are part of the counterrevolution of Massachusetts conservatives in the 1820s.

Story's career as a close colleague of Chief Justice Marshall and later as a member of the Taney Court is consistent with this theme. His years as a justice demonstrated prodigious concern for (1) the establishment and maintenance of a strong central government along classic Federalist lines; (2) the protection of rights of private property–that is, vested rights and the advancement of commerce; and (3) the almost religious duty and special competence of the judiciary, especially the national judiciary, to bring about realization of the first two. Judges were not only to govern, but "to bring legal principles to bear on the great political and economic problems of the age." One is amazed, admits Newmyer,

For Story, law was "what religion was for Jonathan Edwards: the mind, heart, and soul, the binding cement, of a community dedicated to individualism."[12]

In some respects, Story was on the "winning side" of the great issues of the mid-nineteenth century. Yet, Newmyer portrays Story as one who was witness to the undoing of his republican community brought about by the political forces of the day. Change was not due to economics or demographics, reasoned Story, but human failure, a backslide from the ideals of the Revolutionary period. To the degree today that Story is an artifact rather than a current force in law is a measure of the transformation of the old republic into the new

Arrayed alongside Newmyer's portrayal of Story the activist is Wallace Mendelson's perception of John Marshall the non-activist. His essay "Was Chief Justice Marshall an Activist?" is one of thirty articles authored by Mendelson and reprinted in Supreme Court Statecraft.[13] With individual selections originally published between 1949 and 1982, the collection is arranged in six divisions: The Judge's Art, Freedom of Expression, The Fourteenth Amendment, Judicial Review, Jurimetrics, and The Path of the Law

It is a mistake, Mendelson believes, to view Marshall as an activist. In his view, activists are innovators. "Like Jefferson in the Declaration of Independence, Marshall... was not an innovator, but a gifted spokesman for a widely held view."[14] Fighting against the argument of "Progressive Historians," Mendelson argues that Marshall's jurisprudence was not the model for the Warren Court's activism of the 1960s. He denies that Marshall foisted judicial review on an unsuspecting nation, promoted nationalism at the expense of local prerogative, and protected property at the expense of human rights.

Rather, Marshall's conception of judicial review was about as narrow as could be. It was aimed at cementing the union, to provide what Story called "a revising authority? Presumably this meant making explicit that the nation had in the Supreme Court a workable final authority in interpreting the Constitution. So, in Marbury v. Madison Marshall implicitly rejected the counter premise of the Virginia and Kentucky Resolutions that the states had the final say. Equally unacceptable was the view floated in debates over the Judiciary Act of 1802, repealing the Act of 1801, that Congress had the last word on the meaning of the Constitution. According to Mendelson, Marshall was not being inventive because Marbury was so compatible with the Constitution itself, Section 25 of the Judiciary Act of 1789, and the Court's own prior decisions such as Hylton v. United States.[17]

Neither was Gibbons v. Ogden[18] especially innovative, according to Mendelson. Marshall simply "resolved (a mainly linguistic) doubt in favor of Congress and the democratic process." An activist decision would have minimized congressional authority, ignoring "the origins of the Commerce Clause–as the 1895-1936 Court did. . . ."[19]

As for a property bias, Mendelson insists that a case like Fletcher v. Peck[20]did not involve a choice between a pro-property and an anti-property result. A decision either way would have aided some property holders and hurt others. Reviewing the formidable opinions by Marshall and Story in Dartmouth College,[21] the author argues that even Story demonstrated that states could avoid irrevocable or non-amendable charters by reserving a right to amend in the issuing authority. Furthermore, in including charters within the scope of the contracts the Constitution protected, Marshall was only giving the word "contract" the broader and unexceptional eighteenth century meaning which included transactions generally, rather than agreements between private parties solely.

If Marshall's legacy as an activist is thus undeserved, neither did he set the precedent for the Warren Court. Rather, Mendelson argues, "it was ... the laissez faire activists beginning in the 1890s" for whom the label is a more perfect fit. "The father of that movement was Mr. Justice Field. His son-in-law (so to speak) was Mr. Justice Black who passed the torch to the Warren Court activists–and lived to regret it?"[22]

Marshall's work would presumably meet the standard for proper judicial behavior that Mendelson lays out in the preface. While a judge must reject "outworn traditions' the judge must avoid "widely unwanted progress." In a system where the Constitution fulfills the need for stable authority, judges must attend to the "inevitable need for change without loss of continuity." This end they reach by extrapolating "from the deeply held values of their society?[23]

Roughly a century after Marshall and Story completed their years of service on the Court, Frank Murphy began his. Murphy's year as Attorney General of the United States and his decade as a justice are the subject of the third and final volume of Sidney Fine's biography of the Mayor of Detroit, Governor of Michigan, and Governor-General of the Philippines who became a paradigm of judicial activism on the modern Court.[24] Frank Murphy: The Washington Years is, like Newmyer's book on Story, a full scale judicial biography. Like Newmyer, Fine follows the methodology of the historian to probe not just the man but the times in which he lived and the issues he faced as a public figure. Also like Newmyer, Fine is not so totally absorbed in a single justice that the Court's work appears to be the handiwork of one individual.

Access to Murphy's papers and the extant papers of every Justice with whom Murphy served[25] enabled Fine to present an extensive account of the inner workings of the Court, including conference deliberations and the drafting of opinions. J. Woodford Howard's earlier biography of Murphy drew on some of the same sources, but some of the sources at Fine's disposal were not accessible when Howard did his research. Accordingly, Fine's Frank Murphy provides some additional information about, and insight into, the Stone and early Vinson Courts, without radically questioning the conclusions of existing scholarship. This suggests as much about the integrity of the sources as it does about the skill of those who consult them.

For example, a thorny question persists about Murphy's vote with the majority in the Gobitis flag-salute case.[26] Justices Black and Douglas, the Court's two other ardent liberals, did the same. Only Justice Stone dissented against Justice Frankfurter's opinion denying First Amendment protection to the Jehovah's Witnesses in this instance. Murphy even abandoned the draft of his own dissenting opinion. Fine believes this was not because, as Howard maintains, its "policy orientation was so blatant,"[27] but because "an indecisive freshman ... discussed his proposed dissent with the chief justice, who persuaded him to go along with the Court."[28] That may be. Yet, what remains unclear is why Murphy failed to join Stone's powerful dissent when it was circulated among the Brethren, especially since Murphy had already drafted one of his own. Not only were Murphy's leanings strongly against the flag-salute rule, but with less risk he could have withdrawn his own dissent and sided with one written by another senior member of the Court.

At a distance of two chief justices and nearly four decades after Murphy's death, what assessment does Fine offer of Murphy's service on the Court? Since the average tenure for a Supreme Court justice is longer than a decade, it is fair to wonder about the lasting impact of one who, like Murphy, served only nine and a half years. The designation of "greatness" has eluded even most of the justices who sat for more than a decade on the Court.[29] With the exception of Justice Cardozo, whose reputation as a jurist had a substantial head-start, none of those with fewer than nine or ten fairly can be accorded the honor. In Frankfurter's words, "[t]ime is one of the most important factors in the realization of a man's potentialities."[30] Murphy is thus a border-line case. Fine observes that most of his opinions in the realm of civil liberties were concurrence or dissents, and it is for his stances in those cases that he is best remembered. Alongside 130 majority opinions were 20 concurrence and 69 dissents. "Dissent has a popular appeal," Justice Jackson counseled later, "for it is an underdog judge pleading for an underdog litigant."[31] Murphy's dissent in Korematsu v. United States[32] for example, still carries meaning more than four decades later. Moreover,

Fine admits, however, that even the Warren Court rarely cited opinions by Murphy in support of its own decisions. Murphy's "tended to be brief and emotional even when solidly grounded, often lacked intellectual depth, and were sometimes composed without due regard for the 'preferred canons of craftsmanship.'"[34] Admitting that it would have been a "disaster" to have nine Frank Murphys on the Supreme Court at one time, Fine concludes that the nation nonetheless benefited from the presence of a justice "who pursued justice so ardently. . . ." In other words, Murphy was a good man, if not a great jurist. "Flawed like all men, Frank Murphy still impresses as one of the more admirable figures in public life during three tumultuous decades in the nation's history. . . . [T]he world was a better place for his having been there."[35]

"Greatness" is a term easily and appropriately applied to Justice Hugo Black. His thirty-four years of service on the Supreme Court from 1937 until his death in 1971 loom large on the twentieth-century American political and constitutional landscape. A fair assessment of his long career as an attorney, police judge, prosecutor, United States senator, and justice reveals a man who made a substantial and, probably, a lasting impression on the law during an era of unprecedented social change. It is no exaggeration to say that Black had a hand in precipitating that change. Neither is it far-fetched to add that much of the continuing controversy surrounding judicial review flows from Black's constitutional jurisprudence. In a way matched by few, he defined the terms of the debate and for a long time was one of its chief contenders. To the expanding bibliography on Black's life and work appears a significant addition: Mr. Justice and Mrs. Black: The Memoirs of Hugo L. Black and Elizabeth Black.[36]

Appearing in the centennial year of Justice Black's birth, Mr. Justice and Mrs. Black combines three contributions in one. First are Justice Black's own memoirs which he began writing in 1968. At his death in 1971, he had progressed only as far as 1921, his Senate and Court years still lying ahead untouched.[37] The second part, written by Mrs. Black, is appropriately called "The Years Between" and "aims to 'catch the reader up' both by way for further explanation of certain gaps in Hugo's writing and with a brief chronology of his subsequent life and career."[38] The third and longest part contains excerpts from handwritten diaries Mrs. Black kept from 1964 until her husband's death. With the assistance of Professor Paul R. Baier, the diary excerpts are carefully, extensively, and productively annotated, containing not only citations to cases but extensive excerpts from opinions Black authored and–the real gems–several of Black's memoranda to the other justices as well as exchanges with counsel (and with "the brethren") during oral argument.[39]

With taste and dignity and with loyalty to an institution with which she was closely allied during one of its most active and turbulent eras, Mrs. Black adds to what is already known about the Supreme Court during the late Warren and early Burger Courts. Anecdotes abound, including an account of the Blacks' hikes in 1967 through tall brush in Ogelthorpe, Georgia, in search of his great-grandfather's homestead. The Justice was stung by a yellow-jacket, and they "left the property all covered with beggar's lice and cockleburs?"[40] There are ample glimpses of Black at work as a Justice (such as his efforts with colleagues in the sit-in case, Bell v. Maryland,[41] portrayals of intra-court relations (entertaining the Blackmuns in November 1970), and generous insight into Hugo Black the man ("He'll take over and try to change your life, advised his departing secretary Gladys Coates).[42] In this third respect Mrs. Black's contribution is most important. As Justice Brennan explains in the Foreword,

"The Supreme Court is made up of human beings. Paul Baier writes, "yet the humanity of the Court is largely unknown.[44] This volume helps to close the gap.

The Court

The Judiciary and Responsible Government 1910-1921 by Alexander M. Bickel and Benno C. Schmidt, Jr., is the most recent volume to appear in the Holmes Devise History of the Supreme Court of the United States.[45] Bickel completed the first seven chapters before his death, with Schmidt writing the final three. Both could write about the judicial process with that extra perspective of firsthand experience: Bickel clerked for Justice Frankfurter, and Schmidt clerked for Chief Justice Warren. Bickel's chapters survey the circumstances surrounding the appointment of each Justice during the years of the chief justiceship of Edward Douglass White, as well as the cases involving economic and social regulation which comprised a large part of the Court's docket at that time. Schmidt's chapters review the White Court's record on race discrimination cases.[46]

The Bickel-Schmidt volume is rich in its use of mainly unpublished sources. Bickel had access to Brandeis' "working papers" as well as the notes then Professor Felix Frankfurter made of conversations he had with Brandeis at Cape Cod. These contain many of Brandeis' reflections on his colleagues and comments on the Court's work at that time. Also important throughout are references from the Van Devanter, Hughes, and Holmes papers, to name but three manuscript collections.[47] Documentation in this volume is excellent, proving once again how insightful such sources can be, and how crucial it is for scholars to have access to the papers of justices. Since such sources frequently contain information not available elsewhere about the most secretive part of the Court's work, authors need to provide (as have Bickel and Schmidt)[48] full citation so that others may examine evidence and test conclusions. Accordingly, absence of citations or vague references to sources not yet open to others correspondingly reduce the value of any judicial study, especially when it deals with the Court's deliberative processes.

Perhaps because of Bickel's death and the resulting joint authorship, the book does not advance a unifying theme or offer hypotheses to be explored. Perhaps the White years can best be characterized as containing varying attitudes and doctrine. These would not harden for another decade, before starting the slide toward the constitutional confrontation of 1937 In short, the period 1910-21 was a collection of cross currents, witnessing, for example, both Bunting v. Oregon and Hammer v. Dagenhart.[49] Indeed, debates over the propriety of judicial review, intensifying after 1890, do suggest a theme for the White Court: the justices grappled with the problem of assuring constitutional guaranties in a democratic system. Would rights be protected solely through the political process or with the aid of the courts? If courts had a role to play, how large would it be? How hesitant were judges to be in setting aside decisions made by politically accountable officials? That the outcome of the debates leaned increasingly toward intervention by the courts in policy making may well be part of the basis for the Court's power today. Because the Court after 1890 assumed a major governing role in economic matters, there developed an expectation that courts should govern, regardless of the issue in dispute.

It was during the period examined by Bickel and Schmidt that interest groups began a systematic use of the courts to further their objectives. Litigation, like war, became the conduct of politics by other means. This phenomenon of interest group litigation is the subject of Lee Epstein's Conservatives in Court.[50]

The immediate background for Epstein's study is the rapid growth of conservative interest groups in the 1970s and 1980s. While liberal groups such as the National Consumer's League (dating from 1899) and the National Association for the Advancement of Colored People (dating from 1910) long ago became skilled in litigation politics, conservative groups are comparative newcomers.[51] For example, only three of the groups Epstein chronicles were in business before 1970. No wonder then that earlier studies such as Clement Vose's pioneering Caucasians Only[52] focus mainly on groups pursuing liberal objectives.

Of course, conservative causes were especially influential in American constitutional law during the late nineteenth century. This is a story that has been told in several places.[53] But Epstein has something else in mind. His concern is not just an evolution in constitutional theory that comes about through the normal course of cases, arguments, and judicial appointments, but a staged and coordinated drive to achieve a specific objective, using devices such as the amicus curiae brief, the test case, and articles in law reviews. An issue thus becomes transformed and transferred from the rough and tumble of routine politics to the halls of the judiciary.[54]

Building on the results of studies such as Vose's, Epstein tests conclusions about the strategy and tactics of liberal groups against the methods of conservative groups and finds that they are very similar. First, whether pursuing liberal or conservative policies, interest groups "often resort to litigation when they view their goals as unobtainable or difficult to achieve in other political forums." Second, sponsorship appears to be "the preferred strategy of interest group litigators." Third, necessary resources for interest groups "are money, government support, frequent and increasing use of the courts, expertise, extralegal publicity, and intergroup support." Indeed, cooperation by the Solicitor General's Office appears crucial. Finally, the groups "generally obtain their objectives through litigation."

Epstein believes that conservative groups will increasingly resort to the judicial process. If more liberal groups persist as well, the Supreme Court "will more than ever before [be] put ... in the position of having to mediate between competing group interests." Judicial politics, he concludes, may come to be viewed as "not significantly different from the legislative and executive processes" where contending lobbies have long clashed.[56] It may also be the case that litigation enables groups initially at a numerical disadvantage to broaden their base by appealing to a wider constituency. Fired by an emotional issue, a group persevering through litigation all the way to the Supreme Court, win or lose, is bound to attract publicity for its cause, as well as valuable support from others that might be obtained no other way.

Campus-bound scholars are not alone in studying the judicial process. Justices and other judges engage in self-analysis. In Views from the Bench, Mark Cannon and David O'Brien have compiled twenty-eight judge-authored articles, speeches, and essays: seventeen by federal and state judges and eleven by Supreme Court justices, including six members of the current Court. Most of the selections date from l970.[57]

In their preface, Cannon and O'Brien note the tradition of "judicial lockjaw"–the injunction against a judge's "speaking out." Yet, "speaking out" is as old as the admonitions against it. Their volume is proof enough that judges and justices have not successfully gagged themselves, even if there remains a widely shared view that judges are subject to constraints that do not apply to ordinary politicians.

More than a few justices have made use of extra-curiam opportunities to advance their personal notions of public policy especially as it relates to the role of the judiciary. In his five-volume biography of George Washington, Chief Justice Marshall was not bashful in promoting the Federalist theory of the union, and later took to the newspapers to defend anonymously his opinion in McCulloch v. Maryland.[58] Shortly, Justices Story and Baldwin recorded their theories on the Constitution in sets of commentaries. The breadth of tolerance was such that Justice John McLean maintained his seat on the Court while running perennial campaigns for the presidential nomination on the National Republican, Free Soil, and Republican party tickets. He made known his views on a variety of subjects through letters in newspapers and even condemned publicly the Polk Administration's conduct of the Mexican War. A year later he expressed his views in a letter on the power of Congress to legislate on the status of slavery in the territories.[59] Comment short of McLean's excesses had become so widespread by mid-century that justices routinely began making their thoughts known outside the confines of written opinions. The practice continues today, tempered only by the general and wise refusal to discuss cases under review.[60]

Still, when justices voice opinions on controversial matters, they run the risk of sapping the strength of the institution. This was Justice Black's point, more than four decades ago, when he advised that the kinds of questions the Court confronts in its cases impose "a sharp limitation on. . . freedom of discussion in [one's] unofficial capacity."[61] But Black was not arguing against all comment, as his own record testified. As Judge Rifkind said in 1966,

There is indeed room for extracuriam comment. Legal writing and lecturing are, as Judge Edwards once suggested, "antidotes to judicial atrophy" and a means of preventing the judiciary from becoming "a grey bureaucracy completely remote from the life and problems of the nation?[63] The authors whose works are collected in Views from the Bench would appear to agree.

In this impressive collection, three articles are especially noteworthy. In "The Courts and Social Policy,"[64] Judge Henry Friendly addressed three problems he found with the Supreme Court's 1973 abortion decision, Roe v. Wade.[65] First is the "severity of the restrictions imposed on state abortion laws." Second are "the boundaries of the newly created constitutional right of personal autonomy." Third is the "use of social data offered by appellants and amici curiae for the first time in the Supreme Court itself," where that data had not been subject to scrutiny in the lower courts. "If an administrative agency, even in a rule-making proceeding, had used similar materials without having given the parties a fair opportunity to criticize or controvert them at the hearing stage, reversal would have come swiftly and inexorably."[66]

Judge Ralph Winter's "The Activist Judicial Mind"[67] agrees that the abortion cases are evidence that judicial activism "has entered an unprecedented era." The results of this activism are not "random" but "seem consistently liberal or at least consistent with that branch of reformist, middle-class liberalism descended from the Progressive Era at the turn of the century." In his view, today's activism stems from three basic attitudes prevalent in the judiciary: first, a "hostility to a pluralist, party dominated, political process;" second, "a demand for 'rationality' in public policy;" and third, "skepticism about the morality of capitalism."[68] Contemporary judicial activism has taken the form of what Madison denominated (and rejected) in Federalist No. 51 as the "hereditary or self-appointed authority" to protect minority interests. Yet, the "belief that an activist court will do only good things and be a successful moderating influence is more a matter of faith than of logic, of political religion than of experience?[69]

Also questioning the role of the activist jurist, Judge Robert Bork in "Tradition and Morality in Constitutional Law acknowledges the risks of speaking out: "When a judge undertakes to speak in public about any subject that might be of more interest than the law of incorporeal hereditaments he embarks upon a perilous enterprise."[71]

Peril is also present in what Bork considers "ideologies that are subversive of the very idea of the rule of law" These he finds "worrisome for the future" because increased litigation means that more power will accrue to judges. Because he believes constitutional law has little theory of its own, it "is almost pathologically lacking in immune defenses against the intellectual fevers of the larger society. . . ." These "fevers" he describes as "an infusion of extra-constitutional moral and political notions."[72] Bork's solution is a different kind of theory, one that "relates the framers' values to today's world" by establishing "the proposition that the framers' intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed." Looking outside the Constitution for constitutional meaning teaches "disrespect for the actual institutions of the American polity," which are "designed to achieve compromise, to slow change, to dilute absolutisms. They embody wholesome inconsistencies. They are designed, in short, to do things that abstract generalizations about the just society tend to bring into contempt."[73]

While the essays in Views from the Bench mainly concern the judicial function, Leo Pfeffer's Religion, State and the Burger Court surveys the current Supreme Court's handiwork in a significant area of constitutional law: church and state.[74] Publication of Pfeffer's book is a reminder that most of the law on church and state is a product of the Burger Court. Of course there were important decisions in the field before 1969, but the number of cases since Burger's appointment overshadows anything that came before. This gives Pfeffer's title added significance.

A self-styled "strict separationist" rather than an "accommodationist' Pfeffer gives the Burger Court high marks generally for its decisions protecting free exercise of religion, but with interpretation of the Establishment Clause, he recognizes "two Burger Courts." The Court of the 1970s held fast, he finds, to a division between government and religion, noting that Lemon v. Kurtzman[75] in 1971 was the "first time in American history that the... Court ruled unconstitutional laws appropriating funds to finance the operations of religious schools."[76] Since 1980, however, and thanks largely to Justice Powell's "conversion from absolutism to accommodationism" the trend has been to uphold policies challenged under the Establishment Clause. Past decisions were not overruled, but distinguished. "Perhaps the Court did not want to emulate the recklessness of the Roosevelt-packed New Deal Court in overruling the decisions of its conservative predecessors?"[77]

The Constitution

Leonard Levy's Constitutional Opinions focuses in part on the origins of church/state policies Leo Pfeffer examined. The volume is a collection of twelve essays, ten of which deal with the formative years of American constitutional government. Chronologically they range from "Freedom of Speech in Seventeenth-Century Thought" to "Jefferson as a Civil Libertarian." Especially timely are the essays appearing as chapters six and seven: "The Bill of Rights" and "The Original Meaning of the Establishment Clause?"[78]

The first suggests that the amendments comprising the Bill of Rights are of more importance to those who now enjoy their protections than to most of those who were responsible for their ratification. If Americans today regard the Bill of Rights as standing for the principle that "the individual may be free only if the government is not," Levy's study reveals only "slight passion" on anyone's part two centuries ago to "enshrine personal liberties in the law of the land."[79]

Statecraft and political expedience–not devotion to principle–gave birth to the Bill of Rights. Opponents of the proposed Constitution (the Anti-federalists) used the absence of a bill of rights as a major argument in their fight. The standard Federalist response reasoned that a bill of rights was unnecessary. If the national government under the Constitution was a government of delegated powers, why bar the exercise of powers not delegated? Moreover, adding a bill of rights might also be dangerous. In James Wilson's words,

As Hamilton argued in Federalist No. 84, government could by inference do anything not forbidden.

The Federalist explanation backfired. The Constitution as it left the hands of the framers contained, after all, several specific prohibitions such as the ban on granting titles of nobility. Without a bill of rights, the Anti-federalists could make the reasonable point that now all unprotected rights stood in danger. The potential elasticity of the "necessary and proper" clause only strengthened their case. So Federalists had to promise a bill

of rights to assure ratification. Moreover, once ratification had been achieved, a bill of rights had to be proposed if only to quiet the calls for a "second convention." There, much of the work of 1787 (a national taxing power, for example) might have been undone. By proposing a bill of rights, the Federalists were able to take the wind out of the Anti-federalist sails by removing the main cause around which popular opposition to the Constitution could gather.

But for these circumstances and Madison's insistence that something be done, Levy believes the proposed amendments would simply have died in the First Congress. The Anti-federalists, fearing of the scope of national power and the corresponding loss of state prerogatives, led the drive for a bill of rights. The irony they discovered too late was that they got neither full credit for its adoption nor the substance of what they really wanted.

One very important part of the Bill of Rights was of course the protection afforded religious freedom in the First Amendment. This Levy addresses in "The Original Meaning of the Establishment Clause." At least since the Supreme Court's decision in Everson v. Board of Education[81] four decades ago, debate has persisted on and off the Court over whether a broad or a narrow view of the Establishment Clause is more faithful to history. The former insists that the Constitution bans all aid to all religions; the latter insists that the Constitution outlaws only assistance which favors one religious group over another. The question has obvious significance for scholars such as Judge Bork who, as noted earlier, insist that the framers' intentions are "the sole legitimate premise" from which constitutional analysis may proceed.[82]

The question, Levy acknowledges, "seems to transform into partisans all who approach it." While admitting that the issue is "debatable" and that the sources are unclear and "always disappointingly incomplete," he nonetheless concludes that "a preponderance of the evidence" points to the broad view as being historically the more accurate one. Significant for this conclusion were establishment practices in the colonies and the states, wherein some places at least, "establishment" was understood to mean aid to several religious groups, not just financial support to a single official church. In other words, the First Amendment was probably intended to bar any federal "meddling" in religious matters.

Levy bases this conclusion as well on the Federalist arguments against a Bill of Rights, namely that Congress was bereft of authority, even in the absence of the First Amendment, "to enact laws which benefited one religion or church in particular or all of them equally and impartially."[83] Yet these were the same arguments which, in the debate over the desirability of a Bill of Rights, Levy considered "patently absurd."[84]

A more extensive analysis of the issue appears in Thomas Curry's The First Freedoms.[85] While culminating in the debates over the First Amendment in Congress, Curry's book has deeper roots. Probing colonial records, newspapers, and pamphlets, he attempts to discover the intentions underlying the religion clauses by viewing the problem from the perspective of Americans during the colonial and revolutionary years. As such, he turns up a surprising degree of agreement, as well as disagreement, in habits and attitudes among Americans of that era. In Curry's view, the provisions of the First Amendment "did not represent the triumph of one particular party or specific viewpoint over a clear or entrenched opposition. . . ." Instead, a consensus emerged in the language intended, in Richard Henry Lee's words, "for ages and nations yet unborn."[86]

"One will look in vain," Curry writes, "for the analytical distinctions scholars presume the generation that enacted the First Amendment made between government establishment of a particular sect and government establishment or favor to many sects."[87] One should not be disappointed that Americans at this time did not "work out specific practical applications of their theories on Church and State."[88] While concerned for the future as well as their present, they may be forgiven for not answering all the questions that perplex Americans today. Curry concludes that "Americans during the revolutionary period did not always carry their principles into practice either in Church-State or other matters," yet this fact, he feels, does not negate those principles.

Government efforts to "organize and regulate" support for religion were probably viewed by most as a "usurpation of power," falling within what they saw as" an establishment of religion."[90]

Judicial Review

It is judicial review of course which lends added significance to debates over provisions in the Constitution such as the Establishment Clause. As a center of controversy, judicial review has been subject to searching scholarly inquiry for only about a century. The reason for this delayed reaction to judicial review is simple: it was not until late in the nineteenth century that judicial review evolved in both the state and federal courts to be a major check on popular majorities. Before 1940, detractors considered the power tarnished and plainly inappropriate in a political system which took pride in describing itself as "government by the people." Since 1940, defenders of judicial review have come forward to restore its lustre as a nearly indispensable tool in protecting human dignity against popular majorities. The result has been a proliferation of "theories" of judicial review, prompting constitutional scholar William Van Alstyne to confess awkwardness in maintaining "that it is this Constitution that is being interpreted. Rather, it is more widely felt that one must ask: Whose partial jurisprudence is currently being applied?"[91]

The point is that not just any application or justification of judicial review will do. Some writers emphasize the intent of the framers. Others stress use of certain political and moral premises. Throughout, the objective of most seems to be the furtherance of a society they think is, or should be, the objective of the Constitution. Because of its prominence in legal literature and education, the debate can reasonably be expected to influence the Court.

Laurence Tribe's Constitutional Choices[92] enters this debate confessing a "sense of ultimate futility of the quest for an Archimedean point outside ourselves from which the legitimacy of some form of judicial review or constitutional exegesis may be affirmed." Indeed, to say that "one is merely the voice of the framers' intentions or of a contemporary consensus, or the perfecter of popular mechanisms for choice devised by others, is to lose touch with the need for continuing self-doubt in the exercise of adjudicatory power? Moreover, the search for legitimating theories can be as dangerous as they are unpersuasive: in matters of power, the end of doubt and distrust is the beginning of tyranny."[94]

For Tribe, the prevailing interpretation of the Constitution is a collective responsibility. Of course the Supreme Court has a dominant role, but Americans make constitutional choices when they vote, when Presidents nominate members of the judiciary, and when the Senate confirms.

What makes a particular choice correct for Tribe is certainly the morality of it, admittedly a morality that might not be shared by others. But there is more. Tribe is intrigued by the manner in which the choice is justified. Admitting that this is what he does best, Tribe prefers to reason in terms of the theory of the Constitution itself, acknowledging that other plausible theories exist, but showing how a particular choice advances defensible objectives. Doing constitutional law therefore means "constructing constitutional arguments and counter arguments or exploring the premises and prospects of alternative constitutional approaches in concrete settings."[96]

The result is an understanding of the Constitution that is neither a mirror nor an empty vessel "whose users may pour into it whatever they will. The Constitution tells us something, and what it says–although necessarily read through lenses we ourselves bring to the task–must be the touchstone for evaluating" the document.[97]

Note for instance Tribe's analysis of Michael M. v. Superior Court, when the Supreme Court upheld the California statutory rape law against an attack on equal protection grounds.[98] (Only the male could be criminally punished, yet the majority found no constitutional infirmity since the sexes were not "similarly situated.") Tribe suggests a "lens" the Court could have used but did not. The law criminalized all sex acts involving unwed, underage females, but not all sex acts involving unwed, underage males. Tribe's point is that the statute contained a hidden gender discrimination, one that was not necessarily beneficent, namely that there could be no "legal sex" involving unwed underage females.[99]

By contrast, the court has a lesser role to play when fundamental political acts such as amending the Constitution are at issue. Starting from the premise that the amendment process at heart indicates a consensus in the population that the legal system has not provided the right answers or is inadequate to the tasks at hand, Tribe believes that allowing the Court to pass on the "merits" of an amendment or on most aspects of the amending process itself "would unequivocally subordinate the amendment process to the legal system it is intended to override. . . ." In turn, judicial intervention would "gravely threaten the integrity of the entire structure."[100]"

Yet a different answer is forthcoming with another structural issue: reversing the Court by withdrawing jurisdiction. Tribe believes such moves are constitutionally flawed. "[T]he upshot would be no judicial forum capable of assuring either the supremacy or the uniformity of entire bodies of federal law .. ." Tribe reasons here not only from the text of the Constitution but from the Court's "basic role."[101]

The point is that choices on fundamental questions must be constitutional choices. There is not a total freedom to choose whatever one might like to choose. Instead, in a distant paraphrase of John Marshall, Tribe cautions that it is "a Constitution – a specific, necessarily imperfect Constitution–in whose terms we are, after all, choosing." This is a paradox or mystery the framers bequeathed to later generations of Americans, a paradox that cannot be avoided.[102]

Like Tribe's Constitutional Choices, Lief Carter's Contemporary Constitutional Lawmaking[103] starts from the premise that little is to be gained by the attention currently paid to the problem of the legitimacy of judicial review Doctrines expounding the proper role for the Court simply do not matter very much for the "audience of students, practitioners, and attentive citizens that it plays to and the political script from which it improvises."[104] Instead, Carter's goal in this sequel to his Reason in Law[105] is to explain "how the Court can perform convincingly before a pluralistic political audience, one whose members do not necessarily share the same ideologies, values or personal goals."106 A multiplicity of perspectives only increases the need for what Carter labels "normatively convincing performances."

Carter reviews much of the current literature on approaches to constitutional jurisprudence, from conventional interpretive theory to non-interpretive "political alternatives" and non-interpretive "normative alternatives." The strict interpretivists, such as Judge Bork, he calls "preservatives."[107] They look back to the Constitution either because that is the only source of fundamental law the nation has and/or because the Constitution enshrines the right kind of polity. In either case, the Constitution becomes "the premise of the authoritative past."[108] Evolution of the document would therefore come not through interpretation but through the democratic amending process the Constitution ordained.

Non-interpretivists advancing "political alternatives" include individuals such as Herbert Wechsler, Alexander Bickel, Jesse Choper, and John Ely. "They debate the political justifications for the Court's use of power, not the uses of that power themselves. The question is whether it is 'legitimate' for the Court to make racial and religious policies about public schools [for example], not what those policies ought to be."[109]

Among the non-interpretivists advancing what Carter terms "normative alternatives" are Robert Dworkin, John Rawls, and Walter Murphy. "[F]rom the normative perspective, judicial decisions should bypass all the institutional and meta-analyses about legitimacy and go straight to the ideological questions themselves. . . . In the concrete case, courts must decide whether a legislative policy or bureaucratic practice seems unintelligible in light of constitutional ideology. If no intelligible defense exists, the policy must fail."[110] W For those advocating the "normative alternative," decisions in the realm of constitutional law are "dignitarian": they must include judicial protection of individual dignity.

Each camp assumes that a decision is "good" only if it is "correct." Whether it is correct in turn follows from application of a particular method of interpretation. But Carter is not convinced that one has to agree with a decision to believe it to be a good one. Rather, he advances his own aesthetic theory of constitutional interpretation, as a meeting ground for the many constitutional approaches that abound.

Carter begins by accepting a political model of the Court's operation. That is, he does not deny the political nature of an institution which has its jurisdiction largely set by an elected Congress, its members selected and approved by an elected President and Senate, and its docket largely filled with a variety of political disputes currently dividing the nation. This, in other words, is the context within which the making of constitutional law takes place. But as the starting place, this context is not the finishing point. "Constitutional lawmaking correctly done makes statements about the normative character of the polity. It is a struggle to identify what sort of a community the United States is and what it might become."[111] Constitutional decisions are thus public political acts, and as such they are performances.

The justices must be acutely conscious of using symbols so that others are in a position to consider "the possibility of a new understanding" –an otherwise unexpected result. Drawing as much on the skills of the rhetorician as the statesman, Carter asserts that "the persuasiveness of a performance.., depends on matters of fit, both the internal fit of the parts and their fit . . . to the things they refer to.. . ." The audience in turn accepts the fit if it accords with practice and with "what the audience already accepts as authoritatively permissible."[112] Archibald Cox has made a similar point: "[T]he opinions of the Court can help to shape our national understanding of ourselves' he argues, but "the root of its decisions must already be in the nation. The aspirations voiced by the Court must be those the community is willing not only to avow but in the end to live by."[113]

As models, Carter points to the keynote address by Governor Mario Cuomo to the 1984 Democratic Convention and to the advice of journalist Henry Fairlie.[114] The lesson of both is that the performance "succeeds by reforming the materials an immediate audience already possesses?"[115] Exemplary opinions within the United States Reports include the "oratory" in Justice Jackson's majority opinion in the second flag-salute case,[116] Justice Brandeis' concurrence in Whitney v. California,"[117] and especially Chief Justice Vinson's majority opinion in Sweatt v. Painter.[118] Carter's "great performances" achieve their quality by building "directly on [their] reading of the experiences of citizens in a world of political power."[119]

Especially when the result is not immediately popular, a successful opinion is one where the appeal is wide, beyond the halls of legal academe and into the world of an educated citizenry. In doing its job well –and Carter himself would prefer decisions emphasizing the dignity of the individual–the Justices must be aware of the strength and effectiveness that comes through persuasion of that larger group. Not just any practical argument will do. He joins Tribe[120] in commenting on what he regards as an unfortunate trend in the style of some recent opinions: "If politics is persuasion, . . . then mimicking the 'objective' rhetoric of cost-benefit balancing and the like without explaining why our experience makes it right to do so will not persuade."[121]

The scope of Carter's book underscores the range of opinion about the Court and its work. There is no shortage of perspectives on what the justices ought to be doing. The remarkable thing, of course, is that the justices are constantly "doing." The Court as an institution continues from day to day as a vital part of the American political system. That fact explains both the scholarly attention the Court attracts and the evolutionary impact of published reflection on what the Court does. Early in this century, the great Court scholar Edward S. Corwin offered the judgment that "If judges make law, so do commentators? The same might be said for writers about the judiciary itself. They also help to shape the Court.

Endnotes

1. The volumes surveyed in this article are listed alphabetically below:

Bickel, Alexander M., and Benno C. Schmidt, Jr., the Judiciary and Responsible Government 1910-21, vol, IX of The Oliver Wendell Holmes Devise History of the Supreme Court of the United States (New York: Macmillan, 1984), pp. xiv, 1041.

Black, Hugo, L., and Elizabeth Black, Mr. Justice and Mrs. Black: The Memoirs of Hugo L. Black and Elizabeth Black (New York: Random House, 1986), pp. xiv, 354.

Cannon, Mark W., and David M. O'Brien, eds., Views from the Bench; The Judiciary and Constitutional Politics (Chatham, N.J.: Chatham House Publishers, Inc., 1985), pp. xxii, 330.

Carter, Lief H., Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics (New York: Pergamon Press, 1985), pp. xviii, 217.

Curry, Thomas J., The First Freedoms; Church and State in American to the Passage of the First Amendment (New York: Oxford University Press, 1986), pp. viii, 276.

Epstein, Lee, Conservatives in Court (Knoxville: University of Tennessee Press, 1985), pp. xii, 204 pp. xii, 784.

Fine, Sidney, Frank Murphy: The Washington Years (Ann Arbor: University of Michigan Press, 1984).

Levy, Leonard W., Constitutional Opinions; Aspects of the Bill of Rights (New York: Oxford University Press, 1986), pp. viii, 272.

Mendelson, Wallace, Supreme Court Statecraft (Ames: Iowa State University Press, 1985), pp. x, 351.

Newmyer, R. Kent, Supreme Court Justice Joseph Story; Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), pp. xi, 490.

Pfeffer, Leon, Religion, State and the Burger Court (Buffalo: Prometheus Books, 1984), pp. xiv, 310.

Tribe, Laurence H., Constitutional Choices (Cambridge, Harvard University Press, 1985), pp. xiv, 458.

2. Federalist No. 1.
3. Federalist No. 79.
4. Howard, "Judicial Biography and the Behavioral Persuasion," 65 American Political Science Review, 704, 704-5 (1971).
5. R. Newmyer, supra n. 1.
6. G. Dunne, Justice Joseph Story and the Rise of the Supreme Court (1971).
7. J. McClellan, Joseph Story and the American Constitution (1971).
8. R. Newmyer, The Supreme Court Under Marshall and Taney (1968). Even though Story had a substantial impact on American law through both judicial opinions and treatises, it is well to recall that he was not President Madison's first choice for the position. Justice Cushing died on September 10, 1810. Madison first nominated Levi Lincoln, but after Senate confirmation in January 1811, Lincoln refused to serve. Alexander Wolcott was Madison's second choice, but the Senate rejected this nomination 24-9. In February, John Quincy Adams received a unanimous vote for conformation, but Madison had failed to get the prior consent of the nominee, and Adams, like Lincoln, refused. After Justice Chase's death in June 1811, Madison was caught up in a bitter cabinet and sectional crisis. He waited until November 15, 1811, when he sent to the Senate the names of Joseph Story and Gabriel Duvall. Conformation came three days later. See Dowd, "Justice Story and the Politics of Appointment," 9 American Journal of Legal History 265 (1965).
9. Newmyer, supra n. 1, xiv.
10. Id. xvi.
11. Id. xiv, 389.
12. Id. Story also believed that religion had an important place in the health of the state. "My own private judgment has long been (& every day's experience more & more confirms me in it) that government cannot exist without an alliance with Religion to some extent, & that Christianity is indispensable to the true interests & solid foundation of all government." Letter from Story to Rev. Jasper Adams, May 1833, quoted in Id. 183. This statement accords with Story's position in his 2 Commentaries on the Constitution of the United States 631, cited as authority by Justice Rehnquist in Wallace v. Jaffree, 53 U.S.L.W. 4665 (1985) (dissenting opinion).
13. Supra note 1. Mendelson's essay on Marshall originally appeared in S. Halpern and C. Lamb Supreme Court Activism and Restraint (1982), a book surveyed in this space in the 1985 Yearbook.
14. Mendelson, supra n. 1, 103.
15. Martin v. Hunter's Lessee, 14 U.S. (1 Wheaton) 304, 348 (1816).
16. 5 U.S. (1 Cranch) 137 (1803).
17. 3 U.S. (3 Dallas) 171 (1796).
18. 22 U.S. (9 Wheaton) 1 (1824).
19. Mendelson, supra n. 1, 91.
20. 10 U.S. (6 Cranch) 87 (1810).
21. 17 U.S. (4 Wheaton) 518 (18119).
22. Mendelson, supra n. 1, 100.
23. Id. ix.
24. S. Fine, supra n. 1, Justice Murphy's activism served the new liberalism of the Roosevelt Court. In his words, "the law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution." Quoted in R. McCloskey, The Modern Supreme Court 106-107 (1972).
25. Apparently, only the private correspondence of Justice Douglas was unavailable to Fine.
26. 310 U.S. 296 (1940). Fine notes that when Gobitis was decided, only Douglas and Murphy (the two most junior Justices) had not taken part in earlier flag-salute litigation. Before Gobitis, between 1935 and 1940, the Supreme Court had four times refused to reverse state courts on this issue.
27. J. Hoard, Mr. Justice Murphy 251 (1968).
28. Fine, supra n. 1, 186.
29. H. Abraham, Justices and Presidents 189-90 (1974).
30. Frankfurter, "Chief Justices I Have Known," 39 Va. L. Rev. 883, 885 (1953).
31. R. Jackson, The Supreme Court in the American System of Government 18 (1955). Justice Murphy's use of dissents was perhaps closer to Justice Brennan's. Referring to "dynamic interaction among members of the present Court" and "dialogue across time with the future Court," Justice Brennan sees dissent as a duty. "Saying 'listen to me, see it my way, change your mind,' is not self-indulgence--it is hard work that we cannot shirk." Brennan, "In Defense of Dissents," The Pennsylvania Gazette 20, 21 (Feb. 1986).
32. 323 U.S. 214 (1944).
33. Fine, supra n. 1, 594.
34. Id.
35. Id. at 594-96.
36. H. Black and E. Black, supra n. 1.
37. Id. at 3-63.
38. Id. at xiii. The second part spans pages 65-86.
39. The diary excerpts are found at pages 87-280; the notes at pages 281-312. There follows a list of all opinions Justice Black authored, as well as a list of has law clerks.
40. Id. at 180.
41. Id. at 91-92, 378 U.S. 226 (1964).
42. H. Black and E. Black, supra n. 1, 76-77, 251.
43. Id. at vii.
44. Id. at 314.
45. Bickel and Schmidt, supra n. 1. Approximately half the projected volumes in the series have been published. Originally the plan called for one volume on both the White and Taft Courts, which would have spanned the years 1910-1930. Early in his research, however, Bickel realized the subject called for two volumes. As a result Robert Cover is now responsible for the second volume (on the Taft Court) which Professor Bickel would have authored in the Holmes Devise History.
46. Benno Schmidt's chapters on the race cases preceding and during the years of the White Court are splendid pieces of social history and judicial analysis. Particularly noteworthy is his recounting of Giles v. Harris, 189 U.S. 475 (1903), where the Court thought Justice Holmes concluded that remedying discrimination in voter registration was beyond its capacity, especially when it was as widespread as all knew it to be. Schmidt adds (at 925): "Can any decision better reveal the extraordinary change in the conception of federal judicial power that took its place from the beginning to the middle of the twentieth century?" Also, Schmidt explores the distinct possibility that Chief Justice White held up the decision in Guinn v. United States, 238 U.S. 347 (1915) (striking down the Grandfather Clause) to avoid a probable dissent by Justice Lurton. Bickel and Schmidt, supra n. 1, 945.
47. For instance, Bickel reprinted the unpublished dissent by Justice Holmes in the first round of Stettler v. O'Hara and Simpson v. O'Hara, the Oregon minimum wage cases restored to the docket in 1916 for reargument, where the state court's decision upholding the statute was later affirmed by an equally divided bench [234 U.S. 629 (1917)]. Holmes added an additional paragraph for the dissent after reargument, indicating that again the vote must at first have gone against the statute but that one or two Justices apparently waivered (with Brandeis not taking part). Bickel commented that the dissent, if issued, "would have undoubtedly have taken its place among the great, well-remembered opinions of Holmes." Had the decision come down against the law, it might, according to Bickel, have telescoped some history, by "bringing the twenties back into the teens." Bickel and Schmidt, supra n. 1, 596-598.
48. While Bickel and Schmidt's documentation is excellent, future volumes in the Holmes Devise History might wisely include a listing in one place of all manuscript collections consulted in the research and cited in the text, providing both the location of the collection and, where appropriate, the terms of access. This arrangement would not only provide more information to readers, but would permit the use of abbreviated citations in the text. Presumably this suggestion would have most value for volumes covering the most recent periods of the Court's history, where manuscript sources appear to be both larger and more numerous. In this respect, Fine's biography of Justice Murphy, supra n. 1, offers an example worth following.
49. 243 U.S. 426 (1917); 247 U.S. 251 (1918).
50. Supra n. 1.
51. Brandeis and Frankfurter as attorneys were both active in the National Consumers' League. Similarly, Thurgood Marshall was on the staff of the NAACP from 1939 until 1961 and assisted in the creation of the legal defense fund in 1939.
52. C. Vose, Caucasians Only (1959, Vose details efforts by the NAACP and the Legal Defense Fund to remove legal support from racially restrictive covenants. A similar volume is David R. Manwaring's Render Unto Caesar; The Flag-Salute Controversy (1962), outlining the legal battles of Jehovah's Witnesses.
53. For example, see C. Jacobs, Law Writers and the Courts: The Influence of Thomas P. Cooley, Christopher G. Tiedman, and John F. Dillon upon American Constitutional Law (1954); A. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (1960); B. Twiss, Lawyers and the Constitution (1942); A Mason, W. Beaney, and D. Stephenson, American Constitutional Law 305-11 (7^th ed., 1983).
54. M. Shapiro, Law and Politics in the Supreme Court 8 (1964).