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As we reach Day Umpteen of our social distancing and my fourth installment of this column, I think I hear my five readers crying, “Franck, tell us about something you actually know.” And as I look around my shelves, I see a great many books on American political thought and constitutional law that have influenced my own work as a teacher and scholar of those subjects. The books I describe below have something in common: each is a deep reconsideration of a famous U.S. Supreme Court decision, with unexpected insights not only about the law but about the shape of our political order.
Robert Lowry Clinton’s Marbury v. Madison and Judicial Review (1989) is an iconoclastic treatment of the 1803 case widely regarded as the most important in Supreme Court history, for its establishing, or at least explicating, the judiciary’s power to disregard unconstitutional legislative acts. Robert Clinton shifted the conversation about the Marbury case over the last thirty years by arguing persuasively that Chief Justice John Marshall’s opinion in that case did not assert anything like the judicial supremacy over the meaning of the Constitution that is orthodox in the judiciary and legal profession today. Carefully sifting the historical and intellectual origins of the American judicial power to address constitutional questions, and tracing Marbury’s treatment as a precedent and its political legacy up to the mid-twentieth century, Clinton shows how a power with modest beginnings was transformed into something far greater, with the Marbury decision itself assuming mythic proportions that would astonish its author.
The next case in which the Supreme Court unequivocally disregarded a provision of federal law was Dred Scott v. Sandford (1857), which held that free blacks could not be considered U.S. citizens and that Congress had no power to prohibit slavery in the federal territories. The best book on the subject is still Don E. Fehrenbacher’s Pulitzer Prize-winning The Dred Scott Case: Its Significance in American Law & Politics (1978), a work that ranges across the history of slavery in American law, surveys the development of slavery policy in the federally governed territories, zooms in on the granular details of the Scott case itself, and takes up its consequences in hastening the conflict of the Civil War. No one who wants to venture saying anything at all about this pivotal case can afford not to read Fehrenbacher’s book, preferably his unabridged original work, not the abridged classroom text published a few years later.
Next to Dred Scott, one of the most notorious decisions in Supreme Court history—though there is a revisionist movement afoot these days to rehabilitate its reputation—is Lochner v. New York (1905), which held, on the basis of a putative “liberty of contract” divined somewhere in the due process clause, that the working hours of bakers could not be limited by the state. A standing rebuke to the revisionists is Paul Kens’s Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (1990). Kens demonstrates how little connection the decision had to coherent, defensible constitutional principles, and how very much it was a venture into illegitimate judicial lawmaking. Along the way, the reader will learn just about everything worth knowing about the New York Bakeshop Act that came under scrutiny, the actors involved in the politics and litigation that led to the U.S. Supreme Court, and the justices who decided the case.
From Marbury to Dred Scott to Lochner and beyond, Americans became accustomed to the Supreme Court’s decision of great conflicts of principle in their constitutional order. In 1952, in the midst of the Korean War, President Harry Truman made the momentous decision to seize many of the largest steel-producing corporations in the country—making them temporarily the government’s property—in order to avert a threatened strike. In a matter of just a few weeks, the Supreme Court overturned Truman’s executive order as too great an assertion of executive power. But the decision in Youngstown Sheet & Tube Co. v. Sawyer (1952) was made by a 6–3 Supreme Court with all six of the justices in the majority writing opinions (just as there had been opinions by all the justices in the Dred Scott majority), a sign that they had some difficulty coalescing around the reasons for their collective “no” to the president. Yet Truman readily acquiesced in the Court’s ruling. For a detailed treatment of the Youngstown case, turn to Maeva Marcus’s Truman and the Steel Seizure Case: The Limits of Presidential Power (1971). All the twists and turns of this breakneck-speed litigation are here, as well as the decision’s implications for the shape of presidential power and for presidential-congressional relations. One of the book’s surprises is its notice of critical scholarly reaction to the Youngstown ruling at the time, which was not as relentlessly laudatory as the ruling’s present reputation would suggest.
In his dissent from the 2015 Obergefell v. Hodges ruling that struck down all the nation’s conjugal marriage laws, Chief Justice John Roberts complained of the majority’s “extravagant conception of judicial supremacy.” The study of how the contemporary Supreme Court came to have such a view of its own power can profitably begin with the four books I recommend here.