KEEPING THE FAITH: A CULTURAL HISTORY OF THE SUPREME COURT by John Semonche. Lanham, MD: Rowman & Littlefield Publishers, 1998. 499 pp. Cloth $39.95. ISBN 0-8476-8985-9.

Reviewed by Daniel Krislov, Department of Political Science, University of New Hampshire. E-mail: dkrislov@cisunix.unh.edu.

It is a cliché to refer to the United States Supreme Court as the most powerful court in the world, but that doesn’t make it untrue. The Court has carved out an important niche for itself as being THE authoritative interpreter of the U.S. constitution. Other branches of the federal government as well as bodies of state and local governments can offer their interpretations of the constitution but, with very few exceptions, those interpretations are subject to the approval of the Court. Not only does the Court have this power, it uses it—there are few major policy areas in which the Court has not issued at least one opinion.

This status is a remarkable accomplishment. The Court’s pronouncements are accepted as authoritative despite the fact that the Court commands very little in the way of compelling obedience to its orders. At the time of the framing, it was not obvious that the Court could actually accomplish this. Indeed, the early history of the Court has often been described as being a time in which the Court avoided direct confrontation with other governmental bodies lest the impotence of the Court be exposed.

The question of why other, more powerful, branches of government obey the orders of "the least dangerous branch" presents a mystery to people who believe that government is merely an exercise in the use of economic and physical power. That the Court’s pronouncements have any effect at all on the actions of either of the other bodies of government represents what may be the purest case of the power of legitimacy. After all, if the other branches refused to obey or enforce the orders of the Court, these orders would be without effect.

John Semonche attempts to provide a "cultural" explanation for this phenomenon. To do so, he borrows the concept of an American "civil religion" from Robert Bellah. Professor Semonche argues that the challenge of developing the nation of the United States was to find unity among peoples who did not share much in the way of basic philosophical tenets. Even though the United States of the late 18^th century was geographically much smaller than it is today, it was from the beginning a nation of great religious diversity. As new generations of immigrants arrived, this task became even larger—how does a nation convey an "American" identity to people with little or no common background?

Professor Semonche’s answer is that the United States developed a "civil religion" during the Revolutionary era based upon a "theology" of religious tolerance, respect for diversity, equality, and the rule of law. The basic text of this religion is the Declaration of Independence, which contains the purest statement of these ideals. The Constitution as originally drafted and ratified and with the addition of the Bill of Rights, is an attempt to reconcile those ideals with the need for an empowered central government—a need made apparent by the failure of the governmental system created by the Articles of Confederation. To form the new constitutional order, the drafters compromised the basic ideals of the religion in order to accommodate the slave-owning states, a compromise with disastrous consequences.

According to Prof. Semonche, the role of the Court can be understood as being "the priestly interpreter of the holy writ" (p. 10). The Court does not just read and apply the document, however, but discerns the spirit behinds the commands and applies them to changing social realities and unforeseen conflicts. In doing so, it plays a central role in the civil religion, formulating much of the implications of the religion, and educating the citizenry and the governments to the demands imposed by these values.

Chapters one through three of this book are simply brilliant. In them, he analyses how the Court established its role by allying itself with the central government against the states in questions affecting interstate commerce, and with individuals against the states in cases involving the contracts clause and ex post facto laws. In other words, he argues that the Court gained power and legitimacy by choosing sides on these conflicts. He traces its development by discussing the conflicts that led to the establishment of the Constitution, and how these conflicts shaped the framers’ ideas on how the Court should function. He then goes on to discuss cases of the often-neglected pre-Marshall Court, and shows that MARBURY v. MADISON was not a bolt out of the blue as it has often been portrayed. The history of the Marshall and Taney Courts are ably presented, first showing how Marshall was able to firmly establish the Court as the legitimate interpreter, and how Taney failed to understand that no court had enough legitimacy to authoritatively settle the issue of slavery.

Ultimately, however, I think these chapters succeed in spite of, rather than because of, the description of the Court as being priestly. All would have to admit that the role of Court is enormously complicated. An analogy such as this might be useful if it somehow simplified or gave insight into the functioning of the Court, but this analogy does not do this. After all, if the Court is the apex of the clergy, who is the president? Doesn’t he have a role in educating the public as well? For that matter, how does one think about the relationship between the figurative "clergy" of the Court with the actual clergy of various religions? Thinking of a judge as a priest, I believe, actually makes it harder to describe these and other relationships—an absolute necessity if one is to describe the cultural role of the Supreme Court.

Given the great promise shown in the early chapters of this book, I regret to say that the remaining seven chapters were an enormous disappointment. As Prof. Semonche correctly notes, education is a two-way street. The Court may educate the rest of society about the constitutional order, but the Court is also informed by the general culture, the parties to its cases, and by the responses generated by the Court’s decisions.

Professor Semonche’s analysis of the Court in the post-civil war period and the 20^th century, however, is almost entirely confined to detailed analyses of the justices’ written opinions, and how they reveal the various justices’ attitudes towards their role. While that is occasionally interesting, it falls far short of what I would expect of a "cultural history"—it tells us little about how the culture responds to these opinions or, for that matter, how the general culture influences the Court. In other words, this approach can tell us something of how the justices see their role, but it can tell us almost nothing about how well that view comports with reality. Thus, for example, the significance of the election of Richard Nixon as president is discussed only in connection to the effects of his appointments to the Court; there is no discussion as to whether hostile responses to the decisions of the Warren Court contributed to his election. This is not to say that Prof. Semonche does not look at any reactions to the decisions of the Court, but there is entirely too little of this sort of analysis. The only discussion of this sort that goes into any depth is a rather brief analysis of the failure of FDR’s court-packing plan.

The organization of these seven chapters can only be described as maddening. A typical chapter will discuss the Court’s opinions on a set of issues during a given period. Thus, for example, chapter eight is entitled "Struggling to Equalize Justice and Expand the Civil Theology’s Reach: Part 1: The Matter of Race, 1954-1997." In that chapter, Prof. Semonche chronologically describes the cases and opinions involving race during roughly the period outlined in the title in the chapter (despite the title of

this chapter he discusses cases going back to 1938). The effect of this is quite hard to describe—one gets lost in descriptions of majority, concurring, and dissenting opinions—but it’s a bit like reading someone else’s law school lecture notes. Whatever point Prof. Semonche is making about similarities and differences in the approaches of the justices to their roles tends to get lost in the detailed discussions of arguments over various doctrinal issues.

Because of the failure of the final seven chapters of the book (which comprise about 300 pages), I would not recommend assigning this book in its entirety to any class. The first three chapters essentially comprise a quite interesting long article or short book about the early history of the Court. These chapters might be appropriate for an undergraduate course on the Supreme Court or constitutional history, or for graduate seminars on the Court or federalism.

MARBURY v. MADISON, 5 U.S. 137 (1803).

Copyright 1995