- Paperback: 480 pages
- Publisher: Oxford University Press; Reprint edition (February 23, 1995)
- Language: English
- ISBN-10: 0195093879
- ISBN-13: 978-0195093872
- Product Dimensions: 9.2 x 1.2 x 6.1 inches
- Shipping Weight: 1.5 pounds (View shipping rates and policies)
- Average Customer Review: 18 customer reviews
- Amazon Best Sellers Rank: #723,900 in Books (See Top 100 in Books)
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Bernard Schwartz's history treats the Court as "both a mirror and a motor--reflecting the development of the society which it serves and helping to move that society in the direction of the dominant jurisprudence of the day." Beginning with the 17th-century writings of Sir Edward Coke, which shaped much of the legal thinking of America's Founding Fathers, Schwartz considers each of the major eras of the Supreme Court's tenure, from its first term in 1790 (held in New York City) to the Rehnquist years. There are also four chapters that deal specifically with watershed cases: Dred Scott v. Sandford, Lochner v. New York, Brown v. Board of Education, and Roe v. Wade. Schwartz marshals a substantial amount of historical information to carry the story forward without getting stuck on minutiae.
From Publishers Weekly
Constitution scholar Schwartz ( Super Chief: Earl Warren and His Supreme Court ) provides a thorough, balanced and readable chronological overview of the highest court in the land. He mixes biographical sketches of justices like John Marshall with insightful analyses of major decisions, offering also a close look at four watershed cases, e.g., those regarding desegregation and abortion. Schwartz's account of the modern court, especially that headed by Warren, is lively and savvy, with a moderate-liberal slant. His history of the earlier court is less journalistic; nevertheless, he shows how the court slowly grew in role and stature, and how its decisions contributed vitally to an expanding federal economy and the rise of corporations. While Schwartz at times judiciously reevaluates scholarly controversies--such as his upgrade of long-denounced Dred Scott jurist Roger Taney--he skirts such issues as the growing argument that the right to abortion should be based on equal protection rather than privacy rights.
Copyright 1993 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.
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“A History of the Supreme Court” by Bernard Schwartz is about how the Supreme Court has interpreted the Constitution from the time of its inception down to the publication of his book, in 1993. The book reminds me of my two Con Law classes as it covers the same material. The author begins by saying the great theme of our nation’s development is the idea of law as a check upon government power. Indeed, the Constitution is not a prohibition against what the people might do, but a prohibition against what the government might do.
The Supreme Court was hardly supreme in the beginning. It wasn’t until John Marshall was appointed Chief Justice in 1801 that the nation’s highest court became the equal of the executive and legislative branches of government. Marshall did it with a judicial slight-of-hand in the case of Marbury v. Madison (1803) by establishing the precedent for judicial review. Marshall ruled against Marbury in declaring the Court had no power to issue the writ of mandamus he was seeking, because the congressional act conferring such power to the Court was in fact unconstitutional. On the surface it appeared to be a victory for President Thomas Jefferson who was set on blocking Marbury’s appointment to the bench of a lower court. In fact it was a victory for the Supreme Court because it confirmed judicial review as the core principle of the constitutional system.
During his 35 years on the bench, Marshall’s rulings cemented the power of federal over state governments and the sanctity of private property. “I consider,” Marshall once said, “the interference of the legislature in the management of our private affairs, whether those affairs are committed to a company or remain under the individual direction, as equally dangerous and unwise.” Marshall’s successor, Chief Justice Roger Taney (1835-1864), wrote decisions that furthered Marshall’s view of property rights but with a twist—where the rights of property conflict with those of the community, the rights of the community must take precedent. It was in keeping with the Jacksonians who had appointed him to the bench.
Taney was a brilliant Chief Justice whose reputation was shattered by a single decision—Dred Scott v. Sandford (1857). Taney meant well. A southerner, he had freed his slaves prior to his appointment to the Court. The nation was badly divided over the slavery issue. Violent conflicts between abolitionists and advocates of slavery were common in the western territories. The Kansas-Nebraska act of 1854 had done nothing to resolve the issue. With the Dred Scott decision, Taney hoped a ruling by the nation’s high court would settle the issue once and for all. Taney’s majority opinion held that slaves were not citizens and had “no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” It was not just mean-spirited but politically motivated. And it failed to do what Taney had hoped for. As Schwartz says, seldom has wishful thinking been so spectacularly wrong. Within four years of the Court’s ruling, the nation was embroiled in a bloody Civil War.
After the Civil War and until the New Deal era, rulings from the Supreme Court upheld the status quo, favored American’s burgeoning corporations, and ignored individual rights. One of the most damning decisions was Plessy v. Ferguson (1896) in which the court validated the South’s Jim Crow laws in confirming “separate but equal” schools as Constitutional. Another decision, Lochner v. New York (1905), typified the era in upholding an employer’s rights to work employees for as many hours as deemed necessary. Writing brilliant dissenting opinions, four justices emerged during the Court’s laissez-faire era: Stephen J. Field (1863-1897), John Marshall Harlan (1877-1911), Oliver Wendell Holmes (1902-1932), and Louis D. Brandeis (1916-1939). After Word War II, their dissenting opinions would become the Court’s majority opinion in a number of now-famous cases buttressing individual freedom.
The Court’s decision in Brown v. Board Education (1954) reversed decades of blatant discrimination in ruling “separate but equal” was inherently unequal, thus spelling an end to Jim Crow in the South. Among other ground-breaking decisions were three involving criminal procedure. In Mapp v. Ohio (1961), the court adopted the exclusionary rule, which bars the admission of illegally seized evidence, in state criminal cases. In Gideon v. Wainwright (1963), the court ruled that if a defendant cannot afford counsel, one would be appointed for him. In Miranda v. Arizona (1966), the court ruled that a person under arrest has the right to remain silent, that anything he says may be used against him, and that he can have a lawyer present. The latter has become known as the Miranda Rule. These were among the decisions of the Warren Court, a decidedly activist court led by Supreme Court justice Earl Warren (1953-1969) and two “radicals,” justice Hugo Black (1937-1971) and justice William O. Douglas (1939-1975). Some felt the Warren Court had overstepped its Constitutional bounds with decisions that bordered on legislating laws rather than adjudicating law. Perhaps. But their decisions were in keeping with protecting the rights of the individual against government encroachment, which is decidedly the business of the Court. When the Founding Fathers wrote the Constitution, their goal was to create a government that protected the rights of the minority against majority rule. At its best, that is what the Supreme Court has done.
Returning to what I stated earlier, that much of what I had heard about the Supreme Court—from politicians mostly—I found to be mostly wrong. The thinking among them was that radicals had overtaken the Court and needed to be replaced with “strict constructionists.” In reading the actual opinions of these "radicals," I discovered this not to be the case at all. The so-called radicals based their carefully worded opinions on the absolute letter of the law. For example, “Congress shall make no law abridging the freedom of speech.” According to Justices Black and Douglas, the First Amendment right of free speech means exactly that—no speech may ever be restricted by government action, even speech that is libelous, obscene, or subversive. As my college professor used to say, court “radicals” Black and Douglas were in fact “strict constructionists.” The fact is, the three branches of government—the executive, the legislative and the judicial—merely reflect the thinking of most Americans. We live in a democracy. Public opinion changes. The court’s ruling in the June 2015 decision to make same-sex marriage the rule of the land would not have been made ten years ago. Since that time public opinion had changed, and the court followed.
I recommend Schwartz’s book highly. It reads well. It tells something about each of the court’s most important decisions—both right and wrong decisions—and something about each of the most influential justices. The book serves as a nice introduction to the Supreme Court--much like my two college courses back in the day. Five stars.
Schwartz focuses on two main themes in the narrative. The first one, addressed in the Prologue and in the first few chapters, deal with the practice of Judicial Review in Anglo-Saxon common law, and especially in the early US, where under Chief Justice Marshall, the supreme court has been established as SUPREME - that is, in position to pass judgment on State legislators, State courts, and even the US Congress.
The theme is very prominent in the early history of the Court, where the Supreme Court fulfilled its Hamiltonian role as the final authority on the constitutionality of law. Very early, US Justices have proved that they were every bit the politicians as the Jurists - Chief Marshall successfully established Judicial Review in his Marbury vs. Madison decision, while Roger B Taney catastrophically endangered it in his attempt to end the political crisis of the Union via his Dred Scott Decision.
Later in the book, Schwartz still devotes time to the question of Judicial Review, but then in a new disguise - that of Judicial restraint, which Schwartz first sees in the actions of Roger B Taney, but which were only manifested plainly in the dissents of Oliver Wendell Holmes, most famously in the Lochner vs. New York case (1905), where the majority judges, led by Rufus W. Peckham, substituted its judgement to that of the legislative branch, and ruled a law restricting working hours unconstitutional (See Lochner v. New York: Economic Regulation on Trial). Under Judicial Restraint, the Supreme Court was only to overrule laws which no reasonable person could say were constitutional.
The other major theme in Schwartz's narrative is the switch from the primacy of property rights in the 19th century, to the supremacy of personal rights in the 20th. As the US came to allow much more government intervention in the economy, Schwartz argues, the rights of the private citizen, and especially the rights guaranteed in the bill of rights and the right of privacy had to be privileged. This tendency reached its climax in the Warren court, and particularly in the Brown vs. Board of Education decision. Surprisingly, though, the subsequent Burger court did not overthrow the trend. Rather, important personal rights rulings (such as Miranda) were affirmed, and even the right to abortion was guaranteed, as a right included within the right of privacy. The Rhenquist Court, though even more conservative then the Berger Court, has yet to turn the tables on Warren's revolution; indeed, the recent judgement against anti-Homosexual laws in Texas is another landmark civil rights decision.
Schwartz's book is interesting and thorough, but is not without flaws. The writing is somewhat crude, and Schwartz quotes other historians much too much. Schwartz has also an irritating tendency to use the same quote several times, and one quote from judge Frankfurter appears four times at least. The book also has the annoying tendency to assume all the readers are Americans.
Worse, sometimes Schwartz's scholarship is lacking. In the case of Dred Scott vs. Sandford, for example, Schwartz's makes no reference to the classic study by Don E. Fehernbacher (The Dred Scott Case: Its Significance in American Law and Politics), either in the text or in the bibliography. As a consequence, several of Schwartz's conclusion are somewhat distorted, and sometimes his views come out of the blue entirely. Thus Schwartz calls Stephen Douglas "the chief political victim of the Dred Scott Decision" [p.124] which is inaccurate and highly misleading. In the short run, Douglas's popularity in the South did not diminish after the Dred Scot decision, and when it did, it was due to his opposition to the Lecompton constitution - not to Dred Scott. In any event, Schwartz completely ignores the sectional split within the Democratic Party, a split that was indeed seemingly worsened by the Dred Scott decision, which abandoned ambiguity in favour of an endorsement of the Southern view.
Ultimately, Schwartz's book is both instructive and readable. If it is does not quite warrant a general endorsement, it is a good primer for those interested in American legal history.