The Judicial Bookshelf

Spring and summer of 2011 brought to mind two instructive American chronological landmarks: the 235^th anniversary of the signing of the Declaration of Independence and the 150^th anniversary of the outbreak of the Civil War. One was as uplifting as the other was disheartening.     

The Judicial Bookshelf

Decisions by the Supreme Court that are accorded "landmark" status are chiefly remembered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison ¹ was to the Marshall Court and Jefferson's presidency, as Youngstown Sheet & Tube Co. v. Sawyer ² was to the Vinson Court and Truman's presidency, and as Miranda v. Arizona ³ was to the Warren Court and the tumultuous 1960s. But probably only serious students of the Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day of the month.     

The Judicial Bookshelf

Americans were reminded last January 20, as they are every four years, of the central moment at the Inauguration: the swearing in of the president. In this republican rite, the new or continuing chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, "[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" ¹ Justices of the Supreme Court, other federal judges, legislators and officials, as well as state officeholders, likewise govern only upon making a similar pledge. "Senators and Representatives … , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." ² And for added emphasis, protection, and insurance, the Constitution crowns itself, national statutes, and treaties as "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." ³ Parallel drama unfolds in other venues too. In the half century since all nominees to the Supreme Court have routinely appeared before the Senate Judiciary Committee, it would be difficult to find an example of a would-be Justice who, through one combination of words or another, did not promise senators that she or he would faithfully interpret and apply the Constitution.     

The Judicial Bookshelf

Citizens, elected officials, legal practitioners and scholars, and most certainly readers of this journal can surely agree on one verity concerning the U.S. Supreme Court: that an abundance of literature in print and, increasingly, in digital form exists about this capstone institution of the third branch of government. For confirmation, one has only to conduct an online subject search in even a modest-sized library or at one of the Internet-based bookstores to reveal literally hundreds of titles on virtually every aspect of the Court's work as well as the Justices who have sat on its Bench.     

The Judicial Bookshelf

"Democratic institutions are never done," observed Woodrow Wilson over a century ago. "[T]hey are like living tissue-always a-making." Then and now, Wilson's point applies as much to the federal judiciary as to the elected branches of government, as alterations in organization, jurisdiction, and the docket attest.     

The Judicial Bookshelf

Laments about federal judges, Supreme Court Justices in particular, are nearly as old as the Republic. Those who say otherwise perhaps have either poor memories or a need to read more history. True, the Court has not been continuously caught up in strife, but controversies have occurred often enough to make Court-bashing a routine part of American political life.     

The Judicial Bookshelf

Some may be surprised to realize that nearly a half century has lapsed since publication of The American Supreme Court by Robert G. McCloskey. ¹ One reviewer praised the book as “unique,” one that could be read “profitably by layman, student, lawyer, and constitutional lawyer.” ² Readers familiar with that compact volume will recall the antinomy that the author put forward as the defining theme of American constitutional history: the tension between fundamental law and popular sovereignty. The latter suggests will and the former restraint. The antinomy is reflected in the founding documents of the Republic. The Declaration of Independence trumpets “inalienable rights” in the same paragraph that it emphasizes “government by the consent of the governed.” The Constitution, “ordain[ed] and establish[ed]” by “We the people,” insisted in Article VI that it “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This conflict between equally valid principles lies at the heart of judicial review in the federal courts, where appointed and politically unaccountable judges sit in judgment on the actions of the politically accountable representatives of the people. In McCloskey's view, one principle “conjures up the vision of an active, positive state; the other emphasizes the negative, restrictive side of the political problem.” ³ Opposites though these principles are, Professor McCloskey emphasized that Americans have managed to cling simultaneously to both. “But like most successes in politics and elsewhere, this one had a price. The failure to resolve the conflict between popular sovereignty and fundamental law perhaps saved the latter principle, but by the same token it left the former intact. And this meant that fundamental law could be enforced only within delicately defined boundaries, that constitutional law, though not simply the creature of the popular will, nevertheless had always to reckon with it, that the mandates of the Supreme Court must be shaped with an eye not only to legal right and wrong, but with an eye to what popular opinion would tolerate.” ⁴     

The Judicial Bookshelf

A well‐established fact of American government is the unpredictability of vacancies on the U.S. Supreme Court. Representatives and Senators face voters every two and six years, respectively. A President serves for four years and may be reelected only once. Justices, however, do not sit for fixed terms and in effect enjoy life tenure. After his inauguration as the forty‐third president in January 2001, George W. Bush had no opportunity to make a High Court appointment until he was well into his second term when, on July 1, 2005, Justice Sandra Day O'Connor announced her intention to leave the Bench. ¹ By contrast, the forty‐fourth President encountered his first High Court vacancy much sooner, and in his first term, as Justice David Hackett Souter notified the Obama White House on May 1, 2009, of his intention to retire from “regular active service as a Justice” when the Court recessed for the summer. ²