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

by Martin Garbus (Author)

Editorial Reviews

From Publishers Weekly
Garbus, a leading First Amendment lawyer and TV commentator, believes the U.S. Supreme Court, rather than protecting American democracy, poses a grave threat to it. He argues that the conservative bloc of the Court, driven by the ideological vision of William Rehnquist and intellectual vigor of Antonin Scalia, is "seizing power" and seeking to eviscerate individual freedoms most Americans assume to be their birthright. He fears even more that conservative Bush appointees would give the Rehnquist bloc the necessary votes to rewrite the Constitution and severely limit the right to abortion, significant First Amendment rights and protections against unreasonable searches and seizures. Garbus doesn't dumb down his subject; he discusses Supreme Court cases and the underlying judicial philosophy on the level of a law school class. The analysis of the Court's decisions on women's rights, race, affirmative action and religion will be familiar to sophisticated readers, but the discussion of the constitutional development of economic regulation will be new to most. Still, despite the density of the material, Garbus's writing is clear and comprehensible. Sympathetic that is, liberal readers will find his message chilling and will welcome his call for citizens to use their political influence to convince moderate senators, who will provide the pivotal votes on the next Supreme Court nominees, to insist on the appointment of more moderate justices.
Copyright 2002 Cahners Business Information, Inc.

From Library Journal
Garbus sees the Rehnquist Court as undermining the ability of both the Federal judiciary and especially Congress to play a prominent role in the progressive evolution of the modern state. A trial attorney who has appeared frequently as a legal commentator on NBC and CNBC, Garbus decries the Court's recent tendency to overturn congressional legislation by declaring unconstitutional the provisions of various bipartisan acts across a wide range of social, economic, and political spectra. Carefully explicating the conflicting Court perceptions of federalism, he paints a vivid picture of internal conflict among the justices. For each major point of constitutional contention, he considers how and where the case originally arose, issues at trial, appellate review, arguments before the Court, the nine justices and where they stand, the majority opinion, and the minority dissent. The author also properly assesses the impact of the dissents, should these someday become the majority viewpoint of the narrowly divided Court. In the current context, the ability of the federal government to exercise its Article I powers is rigidly constrained. As Garbus shows, attempts by Congress to assert its power over gun control, as in the Brady Bill, or to help rape victims, as in the Women Against Violence Act, will be, and have been, struck down as unconstitutional when legislated under the pretext of interstate commerce. Garbus spends more time analyzing case law, while Noonan emphasizes the Court's resolution of constitutional disputes, so the two books complement each other nicely. Highly recommended.
Philip Y. Blue, New York State Supreme Court Criminal Branch Law Lib., New York
Copyright 2002 Reed Business Information, Inc.

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Product Details

• Hardcover: 256 pages
• Publisher: Times Books; 1st edition (September 17, 2002)
• Language: English
• ISBN-10: 0805069186
• ISBN-13: 978-0805069181
• Product Dimensions: 9.5 x 6.3 x 1 inches
• Shipping Weight: 1.3 pounds (View shipping rates and policies)
• Average Customer Review: 2.8 out of 5 stars See all reviews (4 customer reviews)
• Amazon.com Sales Rank: #2,133,537 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

13 of 15 people found the following review helpful:

4.0 out of 5 stars Informative Though Not Perfect, November 14, 2002

By	Bozeman (New York, NY) - See all my reviews

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.

6 of 9 people found the following review helpful:

4.0 out of 5 stars On famous judges mucking up the law, June 27, 2003

By	Bruce P. Barten (Saint Paul, Minnesota, U.S.A.) - See all my reviews (REAL NAME)

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).

11 of 23 people found the following review helpful:

2.0 out of 5 stars Interesting but careless - very careless, October 10, 2002

By	Julian P Killingley (Wakefield, United Kingdom) - See all my reviews

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.