It is difficult to say whether the contentious atmosphere that currently exists regarding the legal opinions of the Supreme Court is greater than any other time in the history of the United States. There have been times, especially during the Civil War and World War I when the Supreme Court raised the ire of many a citizen. Some of the "activist" justices, as some of them are now called, could perhaps be designated as "activist light" if compared with some of the justices of the past. This book gives ample evidence for this comparison, but also gives information on a wide variety of legal issues that the Supreme Court has had to deal with throughout its history. It would probably not be read from cover to cover, but instead serves as a general reference for those readers who are not and do not intend to become legal scholars, but are curious as to the reasoning patterns deployed by the justices who sat on the Court. Readers who are approaching this subject for the first time will find many surprises about the Court, both in the opinions expressed by the judges and in their personal histories and backgrounds. It is fair to say that legal opinions are guided predominantly by the historical context in which they are put forth, and this claim seems to gain more substantiation as more articles in this book are read and studied.
One of the more surprising things to learn from this book is that the Supreme Court never really considered free speech issues with the First Amendment until as late as 1919, in Schenck v. United States. This case is also discussed in this book, and revolves around Charles Schenck, who was general secretary of the Socialist party of the time. Schenck and a few other defendants were convicted with a violation of the 1917 Espionage Act by conspiring to obstruct military recruiting and enlistment via the circulation of pamphlet. Justice Oliver Wendell Holmes wrote the unanimous opinion for the court ruling against Schenck and defendants and thus upholding their conviction. This case was the first time the famous statement of "crying fire in a public theatre" was used to restrict an "absolutist" interpretation of the First Amendment. It could also be viewed as an example of how even legal authorities, who are supposed to be calm and rational during emergencies or times of war, can succumb to the pressures of the times (in this case the pre- and post-war hysteria of World War I) and not be able to divorce themselves from their past personal histories (Holmes himself was wounded three times while serving in the Union Army during the Civil War). The Holmes Court effectively said that the First Amendment is not to be taken literally, and if speech presents a "clear and present danger" then governmental agencies have the right to punish the purveyors of this speech. Free speech issues dominant legal discussions at the present time, and the legal standing of "hate speech" is discussed in an article in this book. One can find solace in knowing that the Supreme Court has not found "hate speech" to be prohibited by the Constitution, despite attempts of many groups to justify its prohibition by appeals to constitutional law. The article on "hate speech" discusses some of these cases and gives a few references.
Without doubt the most despicable legal decision ever put forth by the Supreme Court was the case Scott v. Sandford in 1857. Known famously as the `Dred Scott Case', it is characterized in this book as one of the most important cases in American constitutional law. The decision essentially said that blacks are not citizens of the United States and therefore could not sue in federal courts. In addition, slaves were "property" that was "protected" by the Constitution. Naturally, and justifiably from a moral standpoint, the decision provoked hostile reaction against the Court, and the justices who ruled against Scott clearly were "activist heavy". In reference to the Dred Scott decision, the abolitionist William Garrison was justified in his statement that the Constitution was a "a covenant with death, and an agreement with hell."
The case Roe v. Wade is also discussed at length in this book, as expected. It will be interesting to see whether this case is overturned in the near future. If it is it might be because of a kind of `legal fatigue' that seems to be setting in dialog about the case. The arguments both for and against Roe v. Wade are repeated over and over again and have become almost platitudes. Rather than being a complicated Constitutional issue, is seems that the legal reasoning surrounding Roe v. Wade has become desiccated and has exhausted itself, offering no further insights or justifications for privacy.
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