Vol. 4 No. 7 (July, 1994) pp. 85-87

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)