5 of 5 people found the following review helpful:
5.0 out of 5 stars
A concise history of (the top of) the "least dangerous branch", January 22, 2006
There are a surprising number of ways to approach and review this book, given that its original length was only 160 pages, give or take. True, Sanford Levinson, Robert McCloskey's disciple while a graduate student at Harvard University, has added approximately 100 pages to his mentor's text, covering the 45 years of constitutional jurisprudence that has developed since the book's original publication. Even at 260 pages, though, you'd think more narrative would be required adequately to tell the full story of one of the three co-equal branches of the federal government.
The length of the book, I would argue, is both its strength and its weakness. First for the weakness. I believe the book loses some explanatory power by neglecting the development of internal doctrinal developments in the Supreme Court, purely as a matter of constitutional law. For example, G. Edward White in The Constitution and the New Deal and Barry Cushman in Rethinking the New Deal Court (both of which I highly recommend, by the way) have put forth compelling (though not water-tight) arguments that stress the development of constitutional law over decades as a way of understanding legal change in the 1920s and 1930s. Also, McCloskey, outside of his treatment of John Marshall (which is really, really adulatory) does not show how different justices have brought personal proclivities or intellectual strengths and weaknesses to bear on their efforts to change, or maintain, the law. There is no discussion of the often fascinating game of coalition building in the Supreme Court, except the passing mention of such giants in this regard as Joseph Story, Felix Frankfurter or William Brennan.
But to a certain extent this is merely criticizing McCloskey and Levinson for writing a book they never intended. For what it purports to accomplish this book does an excellent job, all the more so for its brevity. The prose clearly and succienctly anchors the Supreme Court as a political institution struggling to maintain its institutional place in the American government and its voice in the construction of public policy. The authors argue this has been done most effectively when the Court decides cases within general political parameters deemed acceptable by the majority of Americans. It is not, therefore, usually a counter-majoritarian institution.
The Court has failed, conversely, and cost itself valuable institutional and political capital, when it oversteps those parameters. The most notorious examples of the latter include the Dred Scott decision, the series of holdings from 1934 to 1936 when it categorically shut off President Roosevelt's attempt at socio-ecoonomic reform, and the Bush-Gore litigation of 2000.
The Court has been more successful when it cogently articulates its adherence to the Constitution's "fundamental law" as ultimately compatible with a given political era's view of popular will. Thus, for example, the gradual development in the first three generations of the nation's history of the power of judicial review, the federal government's power over the states, and the protection of private property all fit within the acceptable political interests and values of the time. The nation's majority, after all, (pace, Sean Wilentz) wanted the Supreme Court to discern objectively the Constitution's fundamental law, and desired a strong national economy to spread the benefits of market capitalism. Or so McCloskey and Levinson argue.
This is a great book for political scientists and legal historians and lay readers interested in the interface between law and politics. It puts the kabosh to tiresome, relentless arguements that the Court can, or should, separate itself from politics. Everyone loves judicial review so long as their ox is not GORED (pun intended). McCloskey and Levinson make a great point that judicial review (and sovereignty?) is needed for a healthy democracy, PROVIDED the Court behaves responsibly and within the consensus of a specific era's interests and concerns.
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3 of 4 people found the following review helpful:
5.0 out of 5 stars
Excellent Summary of the Supreme Court's History, August 22, 2004
Robert McCloskey has written an excellent book about the History of the Supreme Court. Throughout the book, he has discussed landmark court decisions that have influenced United States history and the structure of the judicial branch of our government. Little was written about the structure and function of the Supreme Court by our forefathers in the U.S. Constitution. It is for this reason that the judicial branch is the weakest branch of government. For example, the number of justices has changed several times in U.S. history. McCloskey describes how the Supreme Court was designed, how it developed and what it has become today. He unveils how politics played an important role in the history of the Supreme Court. It was surprising to read about how important U.S. history and politics have been in shaping the court as we know it today. Furthermore, McCloskey illustrates how conservative the court has been in making decisions and how unpopular decisions affected the status of the court. In some cases, the Supreme Court even rendered decisions just to save itself. The court's decisions may not have always been widely accepted or even considered correct. It is for this reason that the Supreme Court has struggled to maintain its power, respect and legitimacy from the time of it conception.
Overall, the book was an easy and interesting read as part of a Constitutional Law course in the Political Science Department at the University of Chicago. I believe the book and my professor did a great job of describing the history of the Supreme Court.
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