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

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     

The Origin of the Baseball Antitrust Exemption: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs

It is a pleasure to have the chance to speak to you this afternoon. It was back in December, if I recall correctly, when I finally decided on the topic of the talk that I am going to give this afternoon. It was a dark, cold day. I knew that the date of the speech was June 2[, 2008]. That brought to mind thoughts of spring. Thoughts of spring brought to mind thoughts of baseball. And thoughts of baseball brought to mind the case that I am going to talk about: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs , ¹ a unanimous decision handed down by the Court on May 29, 1922—86 years ago last Thursday.     

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.     

Rufus W. Peckham and the Pursuit of Economic Freedom

It is striking that Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author of Lochner v. New York (1905), ¹ one of the most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, anti‐trust law, eminent domain, dormant commerce power, and the Eleventh Amendment. Indeed, Owen M. Fiss maintains that Peckham and David J. Brewer were intellectual leaders of the Fuller Court, “influential within the dominant coalition and the source of the ideas that gave the Court its sweep and direction.” Even when they did not prevail, Fiss observed, Peckham and Brewer “set the terms for the debate.” ²     

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.