Date: Fri, 1 Jul 1994 17:22:46 -0600
THE LAW AND POLITICS BOOK REVIEW
ISSN 1062-7421
An Electronic Periodical
Published by
The Law and Courts Section
The American Political Science Association
Vol. 4 No. 7 (July, 1994) pp. 85-87
Herbert Jacob, Editor
Department of Political Science
Northwestern University, Evanston, Il. 60208
E-mail: mzltov@nwu.edu
The Law and Politics Book Review is published on LPBR-L listserv
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mzltov@nwu.edu.
A HISTORY OF THE SUPREME COURT by Bernard Schwartz. New York:
Oxford University Press, 1993. 465 pp. Cloth $30.00.
Reviewed by John E. Finn, Department of Government, Wesleyan
University.
"The history of an institution such as the Supreme Court,
like a tapestry, is made up of many strands that, interwoven,
make a pattern; to separate a single one and look at it alone not
only defaces the whole but gives the strand itself a false
value." (p. 362). Notwithstanding an occasional pull, Schwartz's
tapestry is a rich and multi-colored history of the Court. At
its best, it combines constitutional doctrine, judicial
biography, and social history to tell the history of the Supreme
Court and its role in American political life. One wonders if
anyone other than Schwartz could have written a book as finely
detailed and as attentive to the personality and politics of the
Court.
There is always the risk in such ventures that the details
will overwhelm all but the hardiest of readers. Although it is
long and densely packed, this history is clearly and engagingly
written; it should be accessible to a lay audience.
Unfortunately, it will not do much to educate that audience. In
too many places, Schwartz's account reads more like a celebration
than a critical appraisal of the Court as an institution.
Schwartz begins with the observation that the Court is both
"mirror and motor," that it sometimes reflects society and
sometimes pushes society to move in certain directions. No one
is likely to cut a finger on the edge of this thesis, but it
works well enough as a general assessment of the Court's history.
Indeed, the image's dual nature is what allows Schwartz to tell
two histories -- one internal to the Court itself, and a second
that situates the Court in a larger political environment.
Schwartz does a masterful job at showing how these two histories
interact. One of the strongest features of the book is the use
of four "watershed" cases (on DRED SCOTT V. SANDFORD, LOCHNER V.
NEW YORK, BROWN V. BOARD OF EDUCATION, AND ROE V. WADE) to
illustrate the decision making process in the Court and the
impact the Court can have on society.
The chapter on LOCHNER, for example, neatly explores the
relationship between political and economic necessity and the New
Deal. Schwartz then ties that discussion to a review of the
internal dynamics of the Court and how personalities and
doctrines shaped the Court's response to the New Deal. Nothing in
Schwartz's discussion of LOCHNER and its progeny is startlingly
or surprising, but the story is told clearly and interestingly.
This chapter, like those on DRED SCOTT, BROWN, and ROE, vividly
show a Court sensitive to politics, personality, and, no less, to
principle. They show a human Court that strives mightily to do
right but also makes mistakes.
Unfortunately, Schwartz provides readers with few tools to
distinguish the Court's blunders from brilliance. If the
development of constitutional law is, as Schwartz so often
observes, a reaction to felt necessities, then what distinguishes
LOCHNER from ROE, or DRED SCOTT from BROWN? Nothing in
Schwartz's admiring history suggests a satisfactory answer to
this question. And yet surely the question is a key to a history
of the Court, like Schwartz's, that rightly wants to stress the
Court's twin roles of mirror and motor. Granted, the Court is
and does both. But when and why should the Court prod and when
should it withdraw?
In some places, Schwartz advocates judicial restraint,
observing, for example, that the Taney Court was too eager to
settle judicially the political conflict surrounding slavery.
But if that is so, why was not judicial restraint the right tact
for the Warren Court nearly a century later in BROWN? Why, in
other words, was the Court better suited to play the role of
motor than mirror in the latter case, and just the opposite in
the former? No doubt it is too much to expect a complete answer
to such a question in a single volume history. But an historical
account less inclined to cheer and more determined to assess
critically the Court's performance ought at least to confront the
question directly, as well as explain to its audience why it is
an important question.
The problem, again, is with the opacity of the mirror-motor
image. If one's purpose is simply to tell what happened, then the
description of the Court as sometimes one and sometimes the other
works well enough. What it does not do is tell us why the Court
sometimes is mirror and sometimes is motor. Nor does it tell us
when or under what conditions one or the other of these two
postures is appropriate. The test of what is wrong and what is
right reduces simply to what works in the judgment of time.
Schwartz's applause for the Court leads to similar problems
in his assessment of how the practice of judicial review has
evolved. Schwartz does an excellent job of pointing out the
precursors to judicial review; unlike some other histories of the
Court, this one will not mislead readers into thinking that
Marshall's opinion in MARBURY was pure innovation. As Schwartz
notes, Marshall's opinion can be read as a gloss upon Federalist
78.
There are, nevertheless, two problems with Schwartz's
treatment of judicial review. First, Schwartz understates the
indeterminacy both of the constitutional text and the history of
judicial invalidation of legislation before the Philadelphia
Convention. Schwartz admits there was opposition to the
practice, but the entire discussion has about it a teleological
sense of the inevitability of judicial review. Schwartz never
really considers the depth or the credibility of opposition to
judicial review, in large part because, as he himself notes in
several places, he takes for granted the centrality of judicial
review to the constitutional order as a whole. It is hardly
obvious that "judicial review, as declared in MARBURY V. MADISON,
has become the sine qua non of the American constitutional
machinery: draw out this particular bolt, and the machinery falls
to pieces." (p. 43.)
I do not want to suggest that Schwartz should have explored
the hulking literature that seeks to reconcile the allegedly
"undemocratic" character of judicial review with the political
theory of representative democracy. But a critical history of
the Court needs to acknowledge and discuss more fully than this
one does the disputed nature of the mechanism that has become
central to the Court's place in the constitutional order. In the
second instance, Schwartz's failure to thoroughly survey the
history and practice of judicial review means that he loses an
opportunity to further explore how the Court has interacted with
other constitutional actors. Some of the Court's "blunders"
(including DRED SCOTT, and perhaps ROE) might best be described
as failures to recognize the degree to which the power of
constitutional interpretation must be shared with other
institutions.
Finally, Schwartz's uncritical story leads him to make
judgments about what should be covered and in how much detail
that less partisan observers of the Court might challenge. In
general, for example, Schwartz gives insufficient attention to
the Court's inability or unwillingness to protect civil liberties
in times of national duress. Schwartz does devote two pages to
EX PARTE MERRYMAN and EX PARTE MILLIGAN in his discussion of the
Court during the Civil War, and another two on freedom of speech
during and immediately following World War I. Surprisingly,
however, Schwartz dismisses the Japanese Internment cases in just
a page, with the observation that during the war the Court did
"little more than confirm the action taken by the Government to
deal with the war emergency." (p. 249). Again, Schwartz's
history suggests an inevitability to, if it does not excuse, the
Court's timidity.
In sum, one might have hoped for a history that is less
admiring and did more to encourage critical reflection. And a
more critical history might not so readily conclude, as Schwartz
does, that "The historian who looks at the Supreme Court is
struck with the generally successful way in which it has
exercised [its] awesome authority." (p. 379). Nevertheless, this
is an account that is richly detailed and sensitive to the
demands of principle and politics. The work fills an important
void in the literature on the Court and deserves pride of place
in the list of standard histories of the Court. The volume is
priced reasonably, but one hopes the publisher will have the good
sense to publish a paperbound edition.
REFERENCES
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954)
EX PARTE MERRYMAN, F. Cas. 9847 (1861)
EX PARTE MILLIGAN, 71 U.S. 2 (1866)
SCOTT V. SANDFORD, 60 U.S. 693 (1857)
LOCHNER V. NEW YORK, 198 U.S. 45 (1905)
MARBURY V. MADISON, 5 U.S. 137 (1803)
ROE V. WADE, 410 U.S. 113 (1973)
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