Customer Reviews

Courting Disaster: The Supreme Court and the Unmaking of American Law

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I've read this, as well as a number of other "political" books recently. I was not hugely impressed by this book, though I believe that is only because I already know and am horrified by what it describes (and therefore did not get much new from it). I wouldn't even have written a review if I had not read a poor review on this site (by a liberal), which talked about how the author's mixing of opinion and fact leaves him open to attack by the right. Hello? This is the problem with liberals; we're too self-analyzing, and too afraid of being attacked. Can you imagine a self-avowed conservative criticising the mindless blather of Ann Coulter's recent book, Slander, for similar reasons? Read this book. Yes, the man mixes opinion and fact, which is to say, he states his opinions and actually backs them up with facts -- an applaudable method that is sadly anathema to many popular political writers.

Martin Garbus is the kind of liberal, idealistic protector of constitutional rights who is not afraid to criticize the direction that the U.S. Supreme Court has been taking most recently. One of the things which seems clearer to me than to Garbus is how the Chief Justice can use his power to select himself to write an opinion, whenever the Chief Justice votes with the majority, to fill the law with criticisms of itself that would seem to be empty remarks if filed in a dissent. In the affirmative action cases, Garbus hardly knows what to call this. "Brennan managed not only to pull together a winning coalition but also to have the chief justice on his side." (p. 234). That was in the case of Fullilove V. Klutznick (1980), in which Chief Justice "Warren Burger, writing the majority opinion, said, `We reject the contention that in the remedial context the Congress must act in a wholly color blind manner.'" (p. 234). Actually, this book has `matter' instead of *manner* at the end of that sentence, but if the case had been about a matter in which Congress had acted totally color blind, it would not have been charged with reverse discrimination, a concept which this book calls "part of the Right's sleight of hand to disguise and obscure the varied purposes of racial preference programs." (p. 227).

Recently, in the 2003 decision on the undergraduate admission system at the University of Michigan, Chief Justice William Rehnquist was able to write an opinion for six justices, a majority who believe in affirmative action where necessary, but who found that giving minorities an extra 20 points on a scale of 0 to 150 was far too concrete as a form of preference, like having quotas for a certain number of minority students was improper in the case filed by Allen Bakke against the University of California Medical School at Davis, decided in 1978. Compared to some states in which social class might seem determined by birth, what California and Michigan were attempting to do for minorities might seem advanced, in the way in which this book, with the subtitle, "The Supreme Court and the Unmaking of American Law," clearly assumes that constantly harping on the legal principles which tend to benefit the overly ruling majority more than any other claimants can thwart such advancing policies. The book's index is helpful for people who have particular questions about what is at stake in recent cases, though many abuses of constitutional rights that are no longer widely noted in the media are not mentioned. There is no entry for *war*, *drug war*, *confiscations*, and the Private Property Rights Bill listed in the index, "passed by the House of Representatives in March 1995, called for compensation if government actions caused a property's worth to decline by 10 percent or more. The proposal has not as yet been enacted into law, although a bill with those provisions is submitted each year. But what Congress refuses to do through legislation, the Court may do through decisions." (p. 175). With a major monetary crash on the horizon, many people are alarmed, but most are alarmed about different things, and it seems most likely that those who have been most successful at grabbing all the money now will do almost as well as those making a bundle on illegal substances in the future, if it resembles the past. There is no entry in the index for cocaine, but it would be between:

Clinton, Bill

Women Against Violence Act of, 140

and

color blindness, defined, 227.

Chief Justice Rehnquist wrote the decision in the Morrison case (May 2000) which held the WAVA unconstitutional because "Rape did not have sufficient economic effects to allow the federal government to step in." (p. 144).

This book is about trends. Judges have power to make decisions in ways that most people could hardly consider without having their heads begin to spin, so the full title, COURTING DISASTER/ THE SUPREME COURT AND THE UNMAKING OF AMERICAN LAW, already says something as ominous about how the attempt to control the courts by appointing judges who serve only a narrow political spectrum, definitely including the innocence of those who are unborn, as specific observations like, "One more reactionary like Scalia or Thomas would assuredly end abortion and reverse even those few recent cases in which the minority bloc won." (p. 5).

I didn't know of the author before I read this book but the cover tells me he is a leading trial lawyer, First Amendment expert and legal commentator for NBC and CBS who has appeared before the US Supreme Court. He's a legal liberal who despairs of the right turn the Supreme Court has taken during Chief Justice Rehnquist's watch. In short he is someone whose views are in tune with my own and whose observations I might be expected to cheer along with. Unfortunately the author's opinionated stance has led him to talk up the threat to the Bill of Rights and leave himself wide open to attack from the Right.

The book is a wide ranging review of Supreme Court activity over the last 20 years aimed at rolling back the liberal decisions of the Warren Court and early Burger Court eras. However, Martin Garbus often blends fact with opinion and seamlessly leads the reader from safe to treacherous ground. Some of his views are inconsistent, such as his portrayal of the jurisprudence of Justice David Souter, while others can only be described as hysterical. His paranoia over the influence of the Federalist Society is heartfelt but unsubstantiated.

I judge this book to be aimed at a popular audience - there are minimal notes and references and it is written in an entertaining and readily accessible style. His book might have escape informed criticism if it never reached a legal audience but, I'm afraid, Mr Garbus's train ran off the tracks for me by page 55. He refers to a 1987 ruling in Stanford v. Kentucky where he claims the Supreme Court had expanded the grounds for a sentence of death. Before then, opines Mr Garbus, the court had reserved the ultimate punishment for triggermen and not accomplices. However, faced with a gruesome murder in Arizona by a convict whose two sons had helped him escape, the court made a new rule. The juvenile sons, Heath Wilkins (16) and Kevin Stanford (17) could be executed because they were major participants.

The alarm bells should have rung for Mr Garbus when he wrote this nonsense. One wonders how a leading trial lawyer failed to notice that apparently a murder committed in Arizona was being tried in Kentucky and a man had two sons, one called Wilkins and the other Stanford. In fact he has conflated the 1987 case of Tison v. Arizona with the 1989 cases of Stanford v. Kentucky and Wilkins v. Missouri. One can only hope that the author is more careful when writing his briefs for the Supreme Court - one can imagine what fun Justice Scalia would have had if he had such an assertion offered up for his inspection.

These are substantial criticisms and might well have justified a one star rating. However, he does offer many interesting perspectives and insights into the drift towards authoritarian views and his book is worth reading - albeit with a skepical eye. Arguments offered for popular consumption desrerve the same careful checking as those offered for more critical audiences.

I have not completely read the book yet (though I have skimmed it considerably). What prompted me to write was what I have read and as I was clicking channels I heard a speaker discuss this book. His concern was regarding medical lawsuits and the need to put a cap on jury outcomes. This prompted me to go online and read a bit. Let me say, that if none of you have been through malpractice, you need to understand that first of all there are caps in place for pain and suffering. I am a sufferer of malpractice. Due to an UNNECESSARY surgery because of a wrong diagnosis, I have had 10 surgeries since and now going on my 11th! I lost my job, have had no income for 2 years, lost all my medical benefits, have used up all my savings to include my retirement fund, have exhausted all my credit cards to survive and after a year am still waiting for social security disability to make a decision on my case. Something I have worked my whole life towards. Trust me, I'd rather be a productive human being verses living my life in bed in excruciating pain for the last 3 1/2 years! In my state the low cap is $360.000 the high cap includes anything from taking a woman's fertility to death of a patient is set at $608.000. The other ruling is for economic loss resulting from the malpractice. There are strict rules regarding this and it is necessary to hire an economic specialist to figure out exactly what your loss of income is from your age of malpractice until your age of retirement, set by our government. Then, for some odd reason it is necessary to reduce this amount to today's value. Don't forget also that you must pay your attorney for all fees plus 1/3 of your settlement. Also, the jury's have no clue about any of these caps, reductions or fees paid, therefore the award they "think" there giving you is not what you get. For goodness sake, according to the "law", I am not fairly entitled to what I lost. Hmmmm, but the doctor is not only allowed to practice, most doctors who are sued, but who work for a hospital are not only having the hospital take responsibility for their actions, but the hospital itself is who is actually being sued. Not to mention that apart of the agreement necessitates the plaintiff NOT to name the physician saw that he will not be reported to the board and have any black marks against his record. Could this be the reason so many malpractice cases are out in the world? The doctor knows he can continue making blatant mistakes because he can get away with it. Trust me, I am not only NOT gaining anything from this suit, but I have had my life,health,happiness, and finances effected for the rest of my life and I'm 45 years old, 42 when this whole mess began. So, in conclusion, why anyone would fight to put additional caps on malpractice is beyond me....the victim certainly gains NOTHING, and what liitle you do get is far less than one could have made or is entitled to by our current government laws. It is also being stated that our medical costs to include medical insurance are continuously on the rise because of these high settlements. First of all, no one ever receives the award amount, the judge always changes it to the cap amounts to include a reasonable amount based on ones economic loss. Second, I am one of those people who had to pay for my COBRA health plan and when that ran out am now paying over $400.00 monthly just for hospitali zation as to continue my desire of restoring my health to atleast be somewhat functional again.(hopefully but without any positive words from the specialists)I must pay my for my own prescriptions since having to cover my own medical insurance am not offered a plan for this and also I have been stuck with thousands of dollars of doctor/hosptial bills for things NOT covered by the insurance I have. I also chose the best possible plan. So, is it really the malpractice claims causing the rise in healthcare costs or the doctors and hospitals that are responsible for them? One last thought, there is a BIG difference in what is awarded and what one receives. The public needs to know this since the entire argument revolves around the high awards. Again, these award amounts that one hears about on television programs, or BOOKS is only a number.....NO ONE EVER sees this amount, so let's report the facts, Please!