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Overruled: The Long War for Control of the U.S. Supreme Court Hardcover – November 4, 2014

by Damon Root (Author)
4.5 4.5 out of 5 stars 63 ratings
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Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloody age of slavery, the Civil War, and Reconstruction to its central role in today's blockbuster legal battles over gay rights, gun control, and health care reform.

It's a conflict that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows. Judicial deference is not only a touchstone of the Progressive left, for example, it is also a philosophy adopted by many members of the modern right. Today's growing camp of libertarians, however, has no patience with judicial restraint and little use for majority rule. They want the courts and judges to police the other branches of government, and expect Justices to strike down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom.

Overruled is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society, a fundamental debate that goes to the very heart of our constitutional system.

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  1. Print length
    288 pages
  2. Language
    English
  3. Publisher
    St. Martin's Press
  4. Publication date
    November 4, 2014
  5. Dimensions
    6.75 x 1.25 x 9.75 inches
  6. ISBN-10
    1137279230
  7. ISBN-13
    978-1137279231
  8. See all details
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Editorial Reviews

Review

"An impressive account... Root's work is a valuable guide to both the past and the potential future of these important issues." (The Washington Post)

"Sober, well-researched, and thoughtful." (The Washington Monthly)

"Fun stuff and informative even for insiders." (The Wall Street Journal)

"Historically rich and elegantly written." (National Review)

"Timely, important, and provocative." (The Florida Bar Journal)

"This is an accessibly written and often witty book. It will make you think." (The Washington Lawyer)

"A wonderful book." (George Will, syndicated columnist)

"Superb.... [Overruled] accurately and candidly describes a fissure that has indeed, as Damon says, defined American law over the past century." (Jeffrey Rosen, President of the National Constitution Center)

"If you're upset with the Supreme Court, read Damon Root's Overruled." (Forbes)

"A great addition to your personal bookshelf as well as to the collection of an academic law library." (Law Library Journal)

"The conflict between judicial activism and judicial restraint has been part of the Supreme Court since its inception. In this book, Root, senior editor at Reason magazine, takes a fresh look at activism vs. restraint by placing judicial interpretation at the center of the ideological disagreements between libertarians and conservatives that have taken place throughout U.S. history.... The segments about gun control and the Affordable Care Act are especially compelling." (Library Journal)

"[A] valuable new book." (The Huffington Post)

"In an enjoyable journalistic style, [Overruled] effectively covers many Supreme Court decisions and legal issues." (The Federal Lawyer)

"What makes the book especially interesting is its delineation of important conflicts between mainstream political conservatives, who emphasize 'judicial restraint' and the Court's deference to 'majority rule,' and contemporary libertarians who embrace a far more 'engaged' role for the judiciary that is highly critical of submission to legislatures and the statutes they pass." (The History Book Club)

About the Author

Damon Root is a senior editor at Reason magazine. He is the winner of the 2015 Los Angeles Press Club Award for Best Political/Government Reporting and the winner of the 2011 R.C. Hoiles Prize for Journalism. Root's work has been cited by the Texas Supreme Court and by leading academic journals. He has been featured on C-SPAN's Book TV, the Fox Business Channel, Sirius Satellite Radio, the 92nd Street Y's "Campaign for the American Conversation," and numerous radio stations around the country.

Product details

  • Publisher ‏ : ‎ St. Martin's Press; First Edition (November 4, 2014)
  • Language ‏ : ‎ English
  • Hardcover ‏ : ‎ 288 pages
  • ISBN-10 ‏ : ‎ 1137279230
  • ISBN-13 ‏ : ‎ 978-1137279231
  • Item Weight ‏ : ‎ 1.02 pounds
  • Dimensions ‏ : ‎ 6.75 x 1.25 x 9.75 inches
  • Customer Reviews:
    4.5 4.5 out of 5 stars 63 ratings

About the author

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Damon Root

Damon Root

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Damon Root is an award-winning legal affairs journalist. He is the author of A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution (2020) and Overruled: The Long War for Control of the U.S. Supreme Court (2014). His writing has also appeared in the Los Angeles Daily News, Chicago Sun-Times, Newsweek, New York Daily News, New York Press, Globe and Mail, and other publications. His work has been cited by the Texas Supreme Court and in the writings of U.S. Supreme Court Justice John Paul Stevens.

Customer reviews

4.5 out of 5 stars
4.5 out of 5
63 global ratings

Customers say

Customers find the book wonderful, concise, and excellent. They also say it provides a great summary of the conflict between judicial.

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ReadabilityWriting styleHistory
10 customers mention "Readability"10 positive0 negative

Customers find the book wonderful, interesting, and a great read for amateur legal buffs. They also appreciate the extensive notes and good select bibliography.

"This was an exceptionally readable book about a topic that doesn't necessarily lend itself to readability...." Read more

"One of the best books I've ever read on the history of the Supreme Court and its ideological and methodological roots...." Read more

"...A book well worth reading by anyone interested in the Court and its role.." Read more

"...It is more interesting than a text book and if you care about Supreme Court decisions it is essential whether you are a Democrat, Republican,..." Read more

10 customers mention "Writing style"10 positive0 negative

Customers find the writing style concise, readable, and easy to read. They also say the book is important and informative, with wonderful storytelling skills to explain competing legal theories. Readers also say that the author does a masterful job of covering this ongoing debate.

"...probably go back and reread sections, but the book's ability to provide a useful overview without getting bogged down in the details is very..." Read more

"...The book has extensive notes and a good select bibliography...." Read more

"...And though a short book,it excellently summarizes the opinions and thoughts of the key figures who have left their indelible imprint on the..." Read more

"...Though challenging, excellent writing makes it an easy read that draws the reader in." Read more

3 customers mention "History"3 positive0 negative

Customers find the book an excellent history of the Supreme Court and its most notable decisions. They also appreciate the wonderful logical chronology of the most important cases.

"Root shares a wonderful logical chronology of the most important cases and protagonists of major SCOTUS cases, Justices, Plaintiffs and Defendants..." Read more

"...This was an excellent history of the Supreme Court and many of its most notable decisions, laid out by Mr. Root to frame today's arguments...." Read more

"Great history of the supreme court that doesn't get bogged down in legal jargon...." Read more

Top reviews from the United States

Oskar Rogg
5.0 out of 5 stars Very readable dissection of the topic
Reviewed in the United States on March 10, 2015
Verified Purchase
This was an exceptionally readable book about a topic that doesn't necessarily lend itself to readability. Much to my surprise, I read it in one sitting, rather than sleeping on the red eye as i should have. I will probably go back and reread sections, but the book's ability to provide a useful overview without getting bogged down in the details is very impressive.

While Root writes from a libertarian perspective, I found his treatment to be evenhanded, although based on his work at Reason, he demonstrates a more in depth knowledge of the some of the libertarian players and points of view than he does of the majoritarian/judicial restraint folks and ideas. Still this is absolutely an overview rather than a polemic.

One of my key takeaways was how much of this battle doesn't really go back to the founding fathers - this is far more about precedents from the Progressive and New Deal eras than it is about Marbury vs Madison, and far more about footnotes from the 1930s than about the Constitution itself. It is amusing that both left and right have strongly advocated for Judicial deference at different times when it suited their goals. It is also amusing how advocates for originalism make an exception for the 14th amendment.

In light of some of the other reviews here, i feel like i should somehow include a reference to Citizens United, but I just can't grasp the relevance, except as an another example of how some Supreme Court decisions are demonized or revered solely based on how they are framed by the left or the right for unquestioning consumption by their respective fan boys.

Bottom line, whether you believe that "Government is the answer" or "Government is a necessary evil;" that "Majorities can do what they want by virtue of being the majority" or "Tyranny of the majority is only incrementally better than traditional forms," reading this book will give you a broader and more in-depth understanding of the topic of judicial restraint.
4 people found this helpful
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John Gillis
5.0 out of 5 stars Overruled Rules
Reviewed in the United States on April 29, 2015
Verified Purchase
One of the best books I've ever read on the history of the Supreme Court and its ideological and methodological roots. As a result I have a much much better understanding of: judicial deference; judicial discretion; judicial restraint; judicial activism; original meaning (aka originalism); living constitutionalism. I know that is a big mouthful, but that is what the book covers, and more.

The overall thrust of the book's author is as an advocate of the Supreme Court as the branch that provides the broadest protections of freedom for individual citizens, and the maximum constraints on the Congress and President. Thus he is a strong advocate of the 14th amendment as understood by its original writers as not merely a strong protection for former slaves, but for all free men to have the fruits of their labors to be protected from Government incursions into their freedom. Therefore this book is an attack on the Oliver Wendell Holmes approach of maximizing government power over the citizens, and the Robert Bork approach which abdicates almost all power to the Executive and Legislative branches.

An important book for anyone interested in the legal theories surrounding freedom and coercion in America in the 21st Century -- as understood by looking at the 20th and 19th century cases and Justices who dominated the Court's history.
3 people found this helpful
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Ronald H. Clark
4.0 out of 5 stars Judicial restraint, democracy, and judicial activism.
Reviewed in the United States on December 15, 2014
Verified Purchase
I am always pleased to see books for the general reader that undertake to explain some facet of the Supreme Court, since the Court remains a mystery to many (much like the fourth or administrative branch of the federal government). This book focuses upon one very important dimension of the Court, the philosophy of judicial restraint or deference to Congressional policy, and to contrast it with judicial activism. The author is a Senior Editor at "Reason" magazine, an important voice for libertarians who value individual liberty above all, seek to maximize autonomy and freedom of choice. Sometimes libertarians take positions identical with conservative; in other instances (as this book well illustrates) the two philosophies come into conflict.

The author covers a wide range of issues as he dissects l(and rejects) judicial restraint as a controlling judicial principle. While I found the individual chapters to be solid, my concern is that they did not flow together smoothly in developing an argument. There is one area, I will mention later, where it all does come together very well and where I believe the book makes a major contribution.

The author begins with a general discussion on judicial restraint, basically targeting Justice Holmes as the major progenitor of the concept. He also includes a good discussion of Justice Field, the genesis of the 14th amendment, and the much criticized "Slaughterhouse" decision in which the Court emasculated the "privileges and immunities" clause of the amendment. With this clause nullified, the Court was free to employ a judicial restraint viewpoint, which allowed government regulation to expand and individual liberty to contract (e.g., the "Munn" doctrine). While liberty of contract did have a brief run, the Progressive movement's emphasis on majority rule and regulation by experts prevailed until the Old Court battled the New Deal, where the ultimate victory of FDR over the Court led to the Court backtracking from questioning Congressional economic and social policy statutes. To do this it employed an undemanding "rationale basis" approach. Until fairly recently, the Court had not declared any such statutes unconstitutional--for the author an unhealthy development as regards safeguarding liberty.

The author next devotes an interesting chapter to the late Judge Bork who favored judicial restraint, unless the Constitutional provided specific guidance on an issue to the contrary. This chapter serves as a preface to the most important topic the author discusses, the continuing battle between conservatives and libertarians. This is a masterful discussion of a topic too often overlooked. The author discusses and parses the views of Bernard Siegen, the 1984 Cato Institute conference here in Washington where Bork debated Richard Epstein (who advocated use of the 5th amendment's "taking clause" as a device to fight government over-regulation), and Justice Scalia's preference for judicial restraint. This battle continues today and the reader is equipped by this chapter to better grasp the important contrasting philosophies at issue.

The remainder of the book looks at some actual cases, such as the Kelo eminent domain litigation, the second amendment gun rights case and the Obamacare decision. Chief Justice Roberts raised the very point central to this book in the ACA litigation by in part basing his surprise vote upholding the law by stating an "it is not our job", pro judicial restraint argument. The book has extensive notes and a good select bibliography. It would have been helpful had the author done more discussion of the libertarian philosophy and the vital role of the Cato Institute here in Washington in educating us about this approach. As I said above, the book could be better integrated in my opinion--but the individual chapters stand on their own as important contributions. A book well worth reading by anyone interested in the Court and its role.

.
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