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On January 11, 2003, Illinois Governor George Ryan--a Republican on record as saying that "some crimes are so horrendous . . . that society has a right to demand the ultimate penalty"--commuted the capital sentences of all 167 prisoners on his state's death row. Critics demonized Ryan. For opponents of capital punishment, however, Ryan became an instant hero whose decision was seen as a signal moment in the "new abolitionist" politics to end killing by the state.In this compelling and timely work, Austin Sarat provides the first book-length work on executive clemency. He turns our focus from questions of guilt and innocence to the very meaning of mercy. Starting from Ryan's controversial decision, Mercy on Trial uses the lens of executive clemency in capital cases to discuss the fraught condition of mercy in American political life. Most pointedly, Sarat argues that mercy itself is on trial. Although it has always had a problematic position as a form of "lawful lawlessness," it has come under much more intense popular pressure and criticism in recent decades. This has yielded a radical decline in the use of the power of chief executives to stop executions. From the history of capital clemency in the twentieth century to surrounding legal controversies and philosophical debates about when (if ever) mercy should be extended, Sarat examines the issue comprehensively. In the end, he acknowledges the risks associated with mercy--but, he argues, those risks are worth taking. ... Read more

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Customer Reviews (3)

Solid
Fredrick Lane's "The Court and the Cross" is part legal history, part current affairs tract that follows the creation, past judicial treatment, and future outlook for both the Free Exercise Clause (which assures religious liberty to all Americans) and Establishment Clause (which theoretically assures the secular administration of American government).It opens with a recounting of the acts and debates between prominent politicians of the early U.S. republic that led to both clauses, as well as the its extension to state governments by the 14th Amendment, then finally into the U.S. Supreme Court's treatment of modern church-state issues.Lane generally devotes about a chapter each to key topics like public funding of religious institutions, prayer or other religious activity on public land or in public institutions, efforts by religious organizations to interfere with the teaching of evolutionary science in public schools, the ceaseless debate over the right to abortion and other aspects of the right of privacy, and so on.In the process, Lane discusses many of the people and organizations on the respective sides of these debates, and the effects of major historic events and social trends that have shifted the context in which the most important cases have come to the Supreme Court.

Lane delivers his facts in a largely objective, journalistic style, as is his analysis of the court opinions and legal development.However, Lane does express a distinctly pro-secularist opinion of his subject matter; he openly laments the many Supreme Court decisions that have eroded the wall of separation between church and state, and cautiously fears the Roberts-led conservative majority on the present court.I suspect that these opinions (although quite moderate and mainstream) are probably more responsible for the multiple 1-star reviews he has already accumulated than any other flaws in the material.

It is true that The Court and The Cross suffers from a mild lack of originality.Supreme Court and Constitutional scholars like Peter Irons and Cass Sunstein have recounted the historical development and interpretation of the Establishment and Free Exercise Clauses much more fully and authoritatively than Lane attempts here.Recent investigative works like Michelle Goldberg's "Kingdom Coming" have exposed the puritanical agendas of organizations like Focus on the Family and the Thomas More Law Center.And numerous recent books by authors like Sam Harris, Richard Dawkins, and Christopher Hitchens have given the political arguments in favor of a secular state in much more forceful tones than anything Lane has to say.But as a brief, readable, pithy text that combines all three strains of research and exposition, The Court and The Cross is easily a worthwhile read.

Where's the beef?
Lane has authored just another bland "culture war in the courts" polemic.This same book has been written a thousand times over."The Court and the Cross" occupies an undistinguished space in that derby of echoes.A public library is the ideal place to yawn through this one, assuming you don't have anything better to do like hanging drywall or watching Major League II on TBS again.

Moral decline du jour
Frederick Lane leads the way to moral decline in his new book.All we need to do is to scare people into the belief that there is no God, Lane seems to say, and we can do it by frightening them about the next election.Next, when we rationalize the absurd we can throw stones at our neighbors too.This all makes sense, if you believe like Lane, that the moral order is bad.If you can turn the moral order upside down then what is to prevent endless war? Bad books will be forgotten and you can bet this one will be. ... Read more

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Now in a new third edition, this multidisciplinary introduction to American religious liberty surveys the history, theory, law, and comparative analysis of American religious liberty from the earliest colonial period through the latest Supreme Court cases. ... Read more

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An associate justice on the renowned Warren Court whose landmark ruling in Brown v. Board of Education overturned racial segregation in schools and other public facilities, Tom C. Clark was a crusader for justice throughout his long legal career. Among many tributes Clark received, Supreme Court Chief Justice Warren Burger opined that "no man in the past thirty years has contributed more to the improvement of justice than Tom Clark."Supreme Court Justice Tom C. Clark is the first biography of this important American jurist. Written by his daughter, Mimi Clark Gronlund, and based on interviews with many of Clark's judicial associates, friends, and family, as well as archival research, it offers a well-rounded portrait of a lawyer and judge who dealt with issues that remain in contention today--civil rights, the rights of the accused, school prayer, and censorship/pornography, among them. Gronlund explores the factors in her father's upbringing and education that helped form his judicial philosophy, then describes how that philosophy shaped his decisions on key issues and cases, including the internment of Japanese Americans during World War II, the investigation of war fraud, the Truman administration's loyalty program (an anti-communist effort), the Brown decision, Mapp v. Ohio (protections against unreasonable search and seizure), and Abington v. Schempp (which overturned a state law that required reading from the Bible each day in public schools). ... Read more

Customer Reviews (2)

Supreme Court Justice Tom C. Clark
Excellent, well written biography.The book traces some important events in recent history, such as the legal fight to halt segregation, and the events that led up to the removal of ethnic Japanese from the west coast.Outstanding and highly recommended.

At last a Justice Tom Clark biography
As I have preached many times on Amazon, judicial biographies are one of the single best ways to understand how and why the Supreme Court makes its decisions.The only problem is that while some Justices (e.g., Holmes, Brandeis, John and Thurgood Marshall) have multiple biographies, many less prominent Justices have not yet been the subject of one.Since the Court engages in 9-person decision-making, part of the story is not being covered as well as it might.A prime example of this phenomenon is Justice Tom C. Clark (1899-1977; on the Court between 1949 and 1967). This solid study, by his daughter, corrects this deficiency.While I had some concern that a biography written by a "loving daughter" (as the author characterizes herself) might be dedicated to portraying its subject in an heroic light, in fact the book is quite balanced.It is also much needed: even though I have been studying judicial biography (including teaching a course in it) since 1967, I knew relatively little about Clark's rich career in the Department of Justice, on the Court, and during a busy "retirement." Yet he served on both the Truman and Warren Courts at crucial periods of our judicial history.

The author states at the outset that she is not writing a comprehensive analysis of the Justice.Basically, this means that we don't get extensive discussions of Clark's key decisions and his role as a dissenter.But we do receive a pretty good survey of some of his key areas of impact while on the Court; after all, this is not a text on con law but a judicial biography.Brother Ramsay Clark has contributed an excellent "Forward" which nicely summarizes the book's findings in a few pages.Part I, covering 1899-1936, traces Clark's youth, education and early private law practice in Texas.Part II covers his Department of Justice years between 1937-1949, including eventually becoming Truman's Attorney General.I spent 15 years at DOJ and I can tell you the depth of Clark's departmental career is probably greater than any other Attorney General I can recall: Antitrust Division; Japanese relocation during the second war; the War Frauds Unit; Assistant A.G. in charge of the Criminal Division; arguing to the Court in three cases; and finally AG itself. A primary interest in civil rights emerges, including filing an amicus brief in a case challenging restrictive covenants. But Clark during the late 1940's got involved in wiretap authorizations, employee loyalty programs, creation of the infamous "Attorney General's Life of Subversive Organizations," and several of the big Smith Act cases, including Judith Coplon, Dennis and Bentley.

Part Three covers the Court years.Clark is involved in lots of important matters, including the Steel Seizure Case; the early graduate education cases leading to the Brown decision; important subversion and loyalty oath cases (he did have "conservative views of national security"); the "Red Monday" decisions; and Warren Court grappling with criminal justice, obscenity and religion in schools. The author does a very nice job on discussing Clark's interaction with other Court members, including Fred Vinson, Brennan and Felix Frankfurter.The final section deals with Clark's retirement years when he was deeply involved in the Federal Judicial Center, serving on U.S. district courts, reforming legal ethics, and enhancing the training opportunities for state judges.

The author has done a solid job of research (as evidenced in her bibliography) including family material and interviews. So there is important biographical material out there, yet Clark remained until this book almost unknown today. Why?A couple of explanations suggest themselves. Clark was always seen as not particularly dynamic (like Black and Douglas) or a great legal scholar (like Harlan).He also was seen as being overwhelmingly conservative, though I think the author rightly paints a much more textured picture. When I studied the Court in the late 1960's and early 1970's particularly, most Court scholarship was written by liberal, activist scholars and Clark just did not fit the bill enough for them and consequently he did not attract much scholarly attention.While this book does not give us a complete analysis of Clark and his contributions to constitutional law, it does perform a heroic service in affording us an intimate and thorough introduction to Clark, the forces that shaped him, his ideas, and his professional activities.In short, it serves (along with some law review articles) as a foundation for hopefully the more comprehensive studies that will emerge of this most interesting judicial figure. ... Read more

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Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders - the people, through direct democracy, and the courts. Now available in nearly half the states, direct democracy has surged in recent decades. Through ballot measures, voters have slashed taxes, mandated government spending, imposed term limits on elected officials, enacted campaign finance reform, barred affirmative action, banned same-sex marriage, and adopted many other controversial laws. In several states, citizens now bypass legislatures to make the most important policy decisions. However, the -people-s rule- is not absolute. This book demonstrates that courts have used an expanding power of judicial review to invalidate citizen-enacted laws at remarkably high rates. The resulting conflict between the people and the courts threatens to produce a popular backlash against judges and raises profound questions about the proper scope of popular sovereignty and judicial power in a constitutional system. ... Read more

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Direct Democracy and the Courts is Superb
Miller's book renders keen and insightful understanding to the origin of American democracy. I have not read a more fascinating account. ... Read more

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During the 1980s and 1990s, Brazil struggled to rebuild its democracy after twenty years of military dictatorship, experiencing financial crises, corruption scandals, political protest, and intense electoral contention. In the midst of this turmoil, Ann Mische argues in this remarkable book, youth activists of various stripes played a vital and unrecognized role, contributing new forms of political talk and action to Brazil's emerging democracy.

Drawing upon extensive and rich ethnography as well as formal network analysis, Mische tracks the lives of young activists through intersecting political networks, including student movements, church-based activism, political parties, nongovernmental organizations, and business and professional organizations. She probes the problems and possibilities they encountered in combining partisan activism with other kinds of civic involvement. In documenting activists' struggles to develop cross-partisan publics of various kinds, Mische explores the distinct styles of communication and leadership that emerged across organizations and among individuals.

Drawing on the ideas of Habermas, Gramsci, Dewey, and Machiavelli, Partisan Publics highlights political communication styles and the forms of mediation and leadership they give rise to--for democratic politics in Brazil and elsewhere. Insightful in its discussion of culture, methodology, and theory, Partisan Publics argues that partisanship can play a significant role in civic life, helping to build relations and institutions in an emerging democracy.

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Judicial Watch and Freedom Watch founder, Larry Klayman describes his efforts to stem abuses in the judiciary and executive branches of our government. He details his legal battles with President and First Lady Bill and Hillary Clinton (Chinagate and Filegate), Vice President Dick Cheney (secret energy commission meetings), and the Bush administration over illegal wiretapping of American citizens. His portraits of the likes of Janet Reno, Fred Thompson, Arlen Spector, Judge Denny Chin (who recently presided over the Madoff trial) and other Clinton insiders Klayman considers unethical, and who have come back to power in the Obama administration, reveal not always flattering sides of their well-cultivated images. Klayman also has choice words to say about media figures such as Bill O'Reilly, Sean Hannity and Paula Zahn, and he accuses media mogul Rupert Murdoch of sandbagging the original publication of WHORES by HarperCollins because of the book's negative portrait of Roger Ailes and Fox News. Above all, WHORES is an impassioned plea for reform of our judicial system with a number of provocative suggestions. ... Read more

Customer Reviews (6)

Larry Klayman - The One Man TEA Party
Long before there was a TEA Party, Glenn Beck 912 movement, 13 Patriots and thousands of others, there was Larry Klayman. Larry believes it is more important to be virtuous than be liked.

Larry believes there is an ultimate right and wrong.

Some of you many not know Larry Klayman but you should. If you believe in the Constitution of the United States and that the Executive, Legislative and Judicial branches of our federal government are corrupt to the core then you need to read Larry's book, WHORES: Why and How I Came to Fight the Establishment.

If you see our courts legislating from the bench rather than enforcing the law as in Arizona then you will love Larry Klayman. If you love politics and want to understand what really happens behind the scenes get his book. I just finished reading WHORES and could not put it down. It is a mosaic of both the man and his struggles against an out of control government bent on aggrandizing itself at the expense of the people and the law. It is about corruption on the part of both parties writ large. I found it particularly interesting because of Larry's insights into Florida politics. You see Larry ran for the very same U.S. Senate seat Marco Rubio is seeking. Larry ran against, among others, Bill McCollum and Mel Martinez. If you want to learn more about Florida politics and political insiders, read this book.

Larry is the founder of Judicial Watch and Freedom Watch USA. Freedom Watch USA " is the only group that speaks through actions, rather than just words." When reading his book I found it a fascinating personal and professional journey that reflects the work of a real patriot. Larry has won my patriot award for being a thorn in the side of Iran, Hugo Chavez, Bill and Hillary Clinton, Dick Cheney, George W. Bush and Barack Obama. Not a bad record if I say so myself.

I really felt a symbiotic relationship with Larry as I read his story. When you speak truth to power you are always attacked. The progressive model is identify the target, marginalize it and then demonize it. That is the cross that Larry, TEA Party members and others who are like minded bear today.

Larry was fighting the establishment since the early 1990s and he continues to do so even today with the filing of a lawsuit against Elena Kagan, President Obama's nominee for the U.S. Supreme Court.

According to the [...] column, Papers prepped to disbar Elena Kagan:

[Larry Klayman] One of Washington, D.C.'s most feared and fearless corruption watchers has told WND he intends to file an ethics complaint to have Supreme Court nominee Elena Kagan disbarred from practicing before the court she aspires to join - and possibly subjected to criminal prosecution - for her role in an escalating controversy over partial-birth abortion.

As WND reported, dozens of pro-life organizations are already asking the Senate to investigate Kagan's 1997 amendment to an American College of Obstetricians and Gynecologists report, which was then used by the Supreme Court as justification for overturning Nebraska's partial-birth abortion ban in 2000.

In her confirmation hearings, Kagan defended the amendment, saying, "My only dealings with (the College) were about talking with them about how to ensure that their statement expressed their views."

Several analyses have concluded, however, that Kagan's amendment dramatically changed the meaning of the organization statement, and court records show the statement was passed off on the Supreme Court as official scientific opinion, even though the organization's panel of scientists never approved Kagan's wording.

Klayman told WND he believes Kagan's behind-the-scenes work constitutes "conspiracy to defraud the Supreme Court," and he intends to take the evidence that has been compiled by the pro-life groups to file a complaint before the clerk's office of the U.S. Supreme Court, seeking to have Kagan disbarred as a practicing lawyer in front of the Supreme Court.

So the battle goes on for Larry, you and me. I hope you will read Larry's book and make it a point to learn more about the great work he is doing to stop corruption in our courts, at the White House and in Congress. Larry has been a one man TEA Party, now it is time for us to join with him as we together fight in the same cause - a grass roots revolution to save the Republic.

A Fight for Injustices & Fairness
It takes a person like L.Klayman to challenge the Judicial & Legal entities
in our Society.

not non-partisan
The book should be titled "How and why I hate Bill and Hillary Clinton". Saw Klayman on Bill Moyer's Journal and decided to request the book from my local library. After reading chapter 14 titled "An Ominous Beginning to the Bush Years", which turned out to be more Clinton bashing, I decided to return it unfinished. The line "It would take September 11, its aftermath and Bush's leadership for me to regain that respect in some small measure." was the "decider." The fact that there was no mention of the Republican shenanigans in the 2000 election helped me realize that Mr. Klayman is not only partisan but ugly partisan.

Fascinating, thought-provoking, and highly recommended political reading
Some people simply choose not to mince words. "Whores: Why and How I Came to Fight the Establishment" is the rants and raves of Larry Klayman as he reflects on how he became to be the judicial watdog he is. Attacking everyone from Sean Hannity to Bill Clinton, Larry Klayman pulls no punches in his plainly stated hatred of how our system is and what needs to be done to change it. "Whores" is fascinating, thought-provoking, and highly recommended political reading.

The unethical and sordid histories of today's politicians
Author Larry Klayman, founder of Judicial Watch, writes an autobiographical account of his war to promote ethical behavior in politicians.Klayman gave up Judicial Watch when he ran for Senator in Florida some years ago and is trying to get it back as well as running his new organization "Freedom Watch".This book chronicles his early life and legal battles with crooked politicians and others from both parties.

I don't know of anyone else who has sued both the Clintons and the Dick Cheney besides Klayman.Klayman is generally conservative but not really a party Republican.And his positions are up-to-the-minute accurate with the current revolt among the rank and file Republicans to overthrow the corrupt neo-cons and liberals that have taken over their party. So this book is as current as possible and has just barely been published.

Because the big publishing companies that are now foreign owned and controlled have an interest in preserving the status quo, this book is not getting the press it ought to.

Yes, Larry Klayman sued his own mother - to keep his neglected grandmother alive.

But as I read this book about some incredible villains, I kept track of the names of the people who Klayman proved, many times in a court of law, to be unethical traitors.Sit down.Take a deep breath.

Page 58 details how Leon Pannetta, a Clinton official, personally obstructed justice illegally in the Ron Brown (Clinton Secretary of Commerce) matters.Leon Pannetta is now the director of the Central Intelligence Agency.

Hillary Clinton personally tells Secretary Ron Brown to sell seats on the trade mission to China, breaking multiple laws and committing high treason on page 59.First lady Hillary Clinton became a Senator from New York and is currently Secretary of State.

Page 59 details charges from Ron Brown's mistress that both Clintons basically ordered a "hit" on Ron Brown.Secretary Ron Brown, the supposed victim of a plane crash, was found to have a bullet hole in his head by not just one, but three doctors but they were ordered not to investigate or perform an autopsy.

Melissa Moss who destroyed the Ron Brown papers sought by Klayman in his Freedom of Information requests is now an investment adviser hob-nobbing with the likes of Jonathan Silverman, Henry Waxman and John Dingell in an article from October 15 of this year.Guess crime does pay.

Pages 59 and 62 detail some of the claims against Harold Ickes including treason and obstructing justice.Harold Ickes is currently Oil Czar in the Obama administration.

On page 61 a Justice department official blackmails a witness.That official, Eric Holder, is now Attorney Gnereral of the United States of America.

Page 68 has Johnny Chung accusing President Bill Clinton of causing Ron Brown's death.

Page 77 has Georgew Stephenopouls lying under oath.Page 78 has James Carville sanctioned by a court for lying.Page 88 tells of 2 sitting members of the House of Representatives Barney Frank and Rep. Gunderson, both homosexuals, blackmailing Gingrich with their knowledge of Gingrich's affair with a staffer.

There are plenty of unethical and traitorous Republicans in the book also, but since they are out of power right now I haven't detailed them.

Anyway, I could go on and on.And where is the outrage?Why isn't Klayman on the Sunday morning political shows?Where is the New York TImes and the Washington Post?

Yes traitors and scum control our government and both parties.No, there is nothing you can do about it except try your best to support people like Klayman and vote in some ethical people to replace the crooks that are in charge.It will be a long and hard fight, but it must be done if we wish to have any country left at all for our children and grand-children. And thank you Larry Klayman for writing it all down and documenting it. ... Read more

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When David Souter was nominated by President Bush to the Supreme Court, he cited John Marshall Harlan as his model. It was an interesting choice.Admired by conservatives and deeply respected by his liberal brethren, Harlan was a man, as Justice William Brennan lamented, whose "massive scholarship" has never been fully recognized.In addition, he was the second Harlan to sit on the Court, following his grandfather--also named John Marshall Harlan. But while his grandfather was an outspoken supporter of reconstruction on a conservative court, the younger Harlan emerged as a critic of the Warren Court's liberal expansion of civil liberties.

Now, in the first biography of this important but neglected jurist, Tinsley Yarbrough provides a detailed account of Harlan's life, from his privileged childhood to his retirement and death.Yarbrough examines the forces and events which shaped the Justice's jurisprudence--his early life and often complex family relationships, education at Princeton and Oxford, his work as a prosecutor during Prohibition, Republican Party activities, wartime service in the Army Air Force, and years as one of the nation's preeminent corporate lawyers (a career culminating in his defense of the du Pont brothers in the massive DuPont-GM antitrust suit).The book focuses, however, on Harlan's years on the high bench.Yarbrough weaves together discussions of the Justice's relations with his brethren, clerks, and staff, an examination of Harlan's role in the decision-making process on the Court, and an analysis of his jurisprudence.The Justice's approach to constitutional interpretation exalted precedent, deference to governmental power, and narrow decisions closely tied to case facts; but he also accepted an evolving, creative model of constitutional construction which permitted expansive readings of constitutional rights.Yarbrough's details Harlan's close relationship with Justice Frankfurter, showing how--despite their friendship and alliance--Harlan strongly marked out his own position, both personally and judicially, on the Warren and Burger courts.And he examines the substance and significance of his dissents in such famous cases as Miranda and the Pentagon Papers.

Intensively researched, smoothly written, and incisively argued, Yarbrough's biography offers an absorbing account of the life and career of a great dissenter, hailed by admirers as a "lawyer's lawyer" and a "judge's judge."Coming at a time when the high court has begun to adopt many of Harlan's principles, this account provides an essential perspective on the Court, civil liberties, and a pivotal figure in the history of both. ... Read more

Customer Reviews (2)

A Book for Dedicated Supreme Court Students and Followers
As one who has read probably a hundred books on the Supreme Court and it's Justices (perhaps more), I can certainly say this study of Justice John Marshall Harlan "II" is a fine addition to the field, and worth the read if you're looking for a detailed examination of Justice Harlan's life and his approach to judicial work.One caveat is that this book is written in a fairly dry style (some might call it "patrician," perhaps fitting its subject), with many a long, winding, and multi-subject sentence, countless of which conclude with a contrast between "the former" and "the latter" . . . though by the time you get to the end of these trailing sentences, you've forgotten much of what the just-read "latter" is and you need to retrack many lines up the page to recall what the long-forgotten "former" was.Fortunately, Professor Yarbrough's writing style became considerably more accessable between the writing of this book and his more recent biography of Justice David Souter ("David Hackett Souter:Traditional Republican on the Rehnquist Court").I enjoyed this book, and would recommend it to others who are fascinated by the Supreme Court and those who have served on it.However, it is at times a bit of an uphill climb.

The Most Underrated Supreme Court Justice in History
Tinsley Yarbrough does a great justice to Supreme Court Justice John Marshall Harlan with this work.

Often overlooked and neglected, the second Harlan was actually more accomplished than the first, and may very well be the most astute and distinguished dissenter in the history of the Supreme Court. A man of amazing scholarly achievement and disciplined intellectuality, Harlan was actually a more well rounded and principled judicial figure than many of the more popular activist justices during his time of service.

I am very surprised that this is the first review of this book. Mr. Yarbrough put together a wonderful and sober minded biography of a brilliant figure deserving of a lot more attention than he's been afforded. I highly recommend this work to anyone interested in the Supreme Court and one of the better justices ever to occupy the bench. ... Read more

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Now revised and updated in a fifth edition, this comprehensive text explores the role of administrative law in public policy from a social sciences rather than a legal perspective. ... Read more

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WHAT patriotic purpose is to be accomplished by this Expunging resolution? What new honor or fresh laurels will it win for our common country? Is the power of the Senate so vast that it ought to be circumscribed, and that of the President so restricted that it ought to be extended? What power has the Senate? None, separately. It can only act jointly with the other House, or jointly with the Executive. And although the theory of the Constitution supposes, when consulted by him, it may freely give an affirmative or negative response, according to the practice, as it now exists, it has lost the faculty of pronouncing the negative monosyllable. ... Read more

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American politics is most notably characterized by the heated debates on constitutional interpretation at the core of its ever-raging culture wars, and the coverage of these lingering disputes are often inundated with public-opinion polls. Yet for all their prominence in contemporary society, there has never been an all-inclusive, systematic study of public opinion and how it impacts the courts and electoral politics.

Public Opinion and Constitutional Controversy is the first book to provide a comprehensive analysis of American public opinion on the key constitutional controversies of the twentieth century, including desegregation, school prayer, abortion, the death penalty, affirmative action, gay rights, assisted suicide, and national security, to name just a few. With essays focusing on each issue in-depth, Nathaniel Persily, Jack Citrin, Patrick Egan, and an established group of scholars utilize cutting edge public-opinion data to illustrate these contemporary debates, methodically examining each one and how public attitudes have shifted over time, especially in the wake of prominent Supreme Court decisions. More than just a compilation of available data, however, these essays join the "popular constitutionalism" debate between those who advocate a dominant role for courts in constitutional adjudication and those who prefer a more pluralized constitutional discourse. Each essay also vividly details the gap between the public and the Supreme Court on these hotly contested issues and analyzes how and why this divergence of opinion has grown or shrunk over the last fifty years.

Ultimately, Public Opinion and Constitutional Controversy sheds light on a major yet understudied part of American politics, providing an incisive look at the crucial part played by the voice of the people on the issues that have become an indelible part of the modern-day political landscape. ... Read more

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A thorough look at each controversy and the beliefs on both sides of their debates
Recently, the Supreme Court overturned a law banning gay marriage in California when the population of the state voted it into law- claiming the law was unconstitutional. "Public Opinion and the Constitutional Controversy" is an examination of this debate, and many others like it where the constitution of the United States and the wishes of its public clash - a thorough look at each controversy and the beliefs on both sides of their debates. Deftly compiled, "Public Opinion and the Constitutional Controversy" is a must for any political discussion, with a nod to community library politics collections. ... Read more

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The renowned attorney and bestselling author reveals how notable trials throughout our history have helped to shape our nation. Offering insights into the human condition, these trials serve as a historical document, chronicling the struggles and passions of their time. ... Read more

Customer Reviews (14)

Or:Trying Times in America
As a trial attorney, one of my guilty pleasures is to periodically pick up the works of other trial attorneys to learn what cases in their opinion define American justice.

In this regard, I must candidly admit that I have so far failed to find a good book on this topic.

However, even if I were to imagine myself a lay reader, I still think I'd find this book enthralling.

To be sure, it doesn't pursue the cases it studies in an exhaustive way but it still hits the major high notes and along the way manages to impart a greater sense of the forrest level view than the tree level view of American justice.

And as a forrest level view, I think it functions pretty well in its coverage of the various eras of American justice including:

The colonial era.Here Dershowitz includes the Salem witch trials as well as the cases of John Peter Zenger and the Boston Massacre.Though Dershowitz for the most part has little new insight to offer on these cases, it is nonetheless interesting to hear his views of the litigation strategies used at the Zenger and Boston Massacre trials.

The era constitutional era through the civil war.Here Dershowitz touches on the predictable cases like Dred Scott and John Brown but also provides interesting insights on less popularized cases that were still representative of the period.

Post civil war through the Wilson administration.Here Dershowitz tells the exciting story of how the 13th, 14th and 15th amendment basically became dead letters along with the rights of the average working man.

The story of Clarence Darrow.Here we find a petulant Dershowitz.As the cover material to this book asks, did Darrow resort to jury tampering?Relying on modern historical research that answers this question in the affirmative, Dershowitz proceeds to dig out what he views as being Darrow's feet of clay.In this area, along with his treatment of many other big name attorneys, it was easy for me to see a more petulant Dershowitz, a sort of legal Nora Desmond bemoaning the successes of others perhaps more of fear that their light may outshine his diminishing flicker.

Post Darrow through Vietnam.Here we see Dershowitz again touching on the major cases.He pours cold water on Darrow in terms of his handling of the Scopes Monkey trial and then proceeds to discuss the Lindbergh kidnapping as well as the wrongful (and shameful) detention of Japanese Americans during World War II.We see an almost embarassed Dershowitz as he recounts the juvenile tactics employed by the defense in the Dr. Spock draft dodging case.

The Dershowitz era.Though he was a law clerk in the 60s, Dershowitz' personal career as a lawyer didn't begin until he started private practice.And it's perhaps here where this book shines best as Dershowitz recounts his personal involvement in the Claus von Bulow defense, the Mike Tyson defense and of course the defense of O.J. Simpson.On that last particular, Dershowitz wisely avoids the protestations he made earlier in the book about the substantive innocence of other clients.

As observed by Alexis de Tocqueville, there is no issue in American life that does not sooner or later resolve itself into some type of courtroom dispute.By focusing on the courtroom disputes, Dershowitz gives a uniquely illuminating view of both American trials and that society that begat them.

This book is highly recommended reading.

www.knucklepit.com
America On Trial - Inside The Legal Battles That Transformed Our Nation
by Alan M. Dershowitz (Warner Books).
© Marc Wickert October 1, 2008
www.knucklepit.com

This book is literary shock treatment. Although written by the world's most famous criminal lawyer, the book is easy to read, but hard to put down.

Professor Dershowitz has defended such clients as Patty Hearst, Jimmy Bakker, and former heavyweight boxing champion Mike Tyson. Dershowitz was also a member of O.J. Simpson's `Dream Team' defense group.

In his book, he covers cases from the Salem Witchcraft Trials of Colonial America to the Trial of the Lincoln Assassins; from the Shoeless Joe Jackson Case to the Trial of Jack Ruby; and the Trial of the Chicago Seven to the Cases of the Terrorist Detainees - in Guantanamo and unknown places around the world.

If you ever wondered whether Mike Tyson was really guilty of rape, or thought it strange a beauty pageant contestant was innocently visiting the boxer in his hotel room at 2am, then wait until you've read Professor Dershowitz's chapter "The Trial of Mike Tyson".

"America On Trial - Inside The Legal Battles That Transformed Our Nation" is a knockout book from cover to cover.This book should be in every library on the planet.

One of the Very Best from a Great Teacher
Who else but Alan Dershowitz could deftly put in context America's greatest landmark trials and legal controversies that shape the nation in a thorough and succinct Prologue on the foundations of American Law?

It is almost like a refresher course in history and philosophy, the foundation of all knowledge, hence we are given a quick rundown on the "..stories of the Bible, with the accounts of famous Greek trials such as that of Socrates, with the infamous Continental Inquisitions against Joan of Arc and Galileo, with the British prosecution of Thomas More, and with the notorious regicide and treason trials of Europe.." and the American legal system which is "..based on a written Constitution, judicial review and most important, the separation of church and state."

He argues that trials can tell us a great deal about the passions, conflicts and attitudes of the time and "America on Trial" represents the episodic history of the nation "..viewed through the prism of our most dramatic and influential public court proceedings."

Dershowitz, the renowned civil liberties lawyer and Harvard Law professor who is best known as America's most outspoken lawyer of last resort, presents this first class and highly insightful and readable book.

As is with all great teachers, Dershowitz always has the most perceptive ability to anticipate questions and clearly explains with wit and his unique compelling writing style, making the otherwise dry legal concepts and jargons at once fascinating and informative as well as going beyond the legal. This is a riveting read for anyone not just people in the legal field.

An Extremely Dishonest Book
This book purports to be about famous legal cases.Mostly, it's actually about Alan Dershowitz's politics.

For instance, in the section on the "McCarthy Era," we hear how a poor anti-communist named William Remington made the understandable mistake of committing perjury, was convicted, and was murdered by evil anti-communists in prison.You'd never know from reading Dershowitz that Alger Hiss was in the same prison every single day of Remington's sentence, and was well liked by the prisoners.You'd never know that the reason Remington was tried was because he was accused of being a former espionage agent of the Soviet Union by Elizabeth Bentley, and almost certainly was one.Why did the same prisoners who liked commie perjuror/spy Hiss murder commie perjuror/spy Remington?Who cares!Propoganda wouldn't be served by asking that question.

You also read, in that section, about how the evil FBI got Ethel Rosenberg executed, even though they weren't sure she was even involved in espionage.In fact, in THE SOURCE DERSHOWITZ CITES MOST ON THIS CASE, it is shown that J. Edgar Hoover was opposed to the execution of Ethel.As for her guilt, the VENONA decrypts (which Dershowitz never mentions), show that she was aware of Julius's espionage, and actively helped him recruit Ruth Greenglass, making her guilty of conspiracy to commit espionage, exactly as charged.But why let a little thing like facts stand in the way of encouraging votes for the Democratic party?

In a chapter on the Dred Scott decision, Dershowitz tries hard to suggest that the decision was in line with the original meaning of the Constitution.He doesn't see fit to tell you that many legal scholars disagreed.One of those scholars was Abraham Lincoln, who ripped into Chief Justice Taney and the Dred Scott decision in his famous Cooper Union address, and in a speech in Springfield, Missouri. Lincoln's Cooper Union address showed "The sum of the whole is, that of our thirty-nine fathers who framed the original Constitution, twenty-one -- a clear majority of the whole -- certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories; while all the rest probably had the same understanding." And in his Springfield speech, Lincoln mentioned one of the dissenting opinions to the decision, which noted that when the Constitution was adopted, five states allowed free black men to vote.This rather makes hash of Taney's arguments that blacks were never citizens, and of Dershowitz's attempt to make those argue that people who oppose his "living Constitution" arguments are hypocrites.

In a chapter on the Jack Ruby trial, he argues that Ruby's trial was unfair, but never says why.Ruby killed Lee Harvey Oswald on national television, and was seized on the spot.He never disputed he did kill Oswald.His lawyers argued Ruby was insane, and lost.So what was unfair?Dershowitz won't say, but I think it was that he, Dershowitz, disapproves of the death sentence, so any trial that ends by imposing it MUST be unfair.

Concerning the Sacco & Vanzetti case, and the Alger Hiss case, he slanders Francis Russell, author of TRAGEDY IN DEDHAM, and Alan Weinstein ,author of PERJURY: THE HISS-CHAMBERS CASE, implying that Russell and Weinstein were dishonest when they said that they that started out believing that the people they wrote about were innocent, but changed their minds because of the evidence.He doesn't tell you that both Russell and Weinstein expressed themselves in print before their bookswere writtn, stating their beliefs in the innocence of the defendants they later decided were guilty.Nor does he bother telling you what changed their minds.

I could go on, but you should get the point by now: Dershowitz isn't interested in the facts, he's trying to make political points for an agenda he apparently doesn't dare support openly.If you want to know about famous trials, the only part of this book of value is the table of contents, and the references.They can help you find some honest information.

Good book, bad title
When I first saw this book, based on the title I dismissed it as an anti-government screed.Fortunately, I picked it up and looked at it more closely.I concluded that the title was misleading, probably chosen by the publisher to enhance sales.In this regard, it failed with me as I bought it in spite of the title not because of it.A much better, more descriptive, title would have been Great Trials of America.While not an anti-government screed, Professor Dershowitz comes down hard on the more conservative members of the current (as of 2004) Supreme Court.As such, the book may not appeal to those who support the conservative view of how to interpret the constitution.Professor Dershowitz also focuses on prosecutorial, defense counsel and judicial misconduct.Some may support this misconduct as an attempt to bring about the desired outcome (the readers desired outcome), even at the expense of staying within the rules of the court and in some cases the rule of law.While coming down most often against the conservatives who twist (or even break) the law, he does not spare those on the left who did the same thing (particularly Clarence Darrow).I found the discussion of the Scopes trial to be most interesting.Professor Dershowitz points out that much of our view of the trial is based on the play (and later the movie) Inherit the Wind, in which the Bryant character is made out to be somewhat of a fool.In reality, Professor Dershowitzpoints out that Bryant actually won the case and was not the narrow minded religious conservative depicted in the play and movie.He points out that the book that Bryant was trying to ban (successfully) was a eugenics text, more suited to Nazi Germany than the US.

The book covers important trials starting with the Salem Witch trials and that of Peter Zenger, and ends with the detainees at Guantanamo bay (although as of 2004 when the book was written there has yet to be a trial).This is done by dividing the book into sections, each covering a period of American history (Colonial America, Early History, Civil War, Early Twentieth Century, etc.), witha brief discussion of the trials of that period at the beginning of each section.There are common threads, such as the question of Supreme Court decisions based on a strict interpretation of the constitution versus a looser one allowing for change with the times.The question of freedom of speech is another thread that runs through the book.

I liked the early sections much better than those that dealt with cases that Professor Dershowitz was personally involved.Perhaps this was due to the fact that I was somewhat acquainted with these trials, so I learned less than I did from the early trials with which I had much less knowledge. My chief criticism is that the aim was to cover as many trials as possible (I counted 63), so no trail was covered in very much detail.Rather, the focus was on what the trial tells us about the American judicial system and its legacy.I would have liked to see more about each trail, even if fewer trails were covered.
... Read more

Product Description

Product Description
Judicial activism is condemned by both right and left, for good reason: lawless courts are a threat to republican government. But challenging conventional wisdom, constitutional litigator Clint Bolick argues in David's Hammer that far worse is a judiciary that allows the other branches of government to run roughshod over precious liberties. For better or for worse, only a vigorous judiciary can enforce the limits on executive and legislative action, protect constitutional rights, and tame unelected bureaucrats.

That, Bolick demonstrates, is exactly the role the framers intended the courts to play, envisioning a judiciary deferential to proper democratic governance but bold in defense of freedom. But the historical record is painfully uneven. During the Warren era, courts protected freedom of speech and equal protection of the law but denigrated other important rights and took on executive and legislative powers that brought disrepute to the judiciary. The Rehnquist Court restored some balance, reining in judicial excesses and protecting property rights, but stopped far short of the activist judicial role the framers charted for the courts in policing conduct of other branches of government that exceeds constitutional boundaries.

Bolick showcases numerous real-world examples of people whose rights to free speech, economic liberty, equal protection of the law, and private property were violated by government--victims of government oppression whose only recourse is the courts. David's Hammer reclaims for the judiciary its intended role as the ultimate safeguard of a free society. ... Read more

Customer Reviews (2)

A Good Read
Bolick wrote in a styled manner that made this selection a quick read. The framework laid out in the first few chapters is very interesting. In these chapters Bolick discusses what judical activism is, then moves on to show how the framers, Madison and Hamliton, in the Federalist papers supported judical activism. In the next section of the book Bolick discusses the good of activism and the bad of in-activism. Bolick then provides many examples within the sector of economic rights, school choice and property rights. I only wish Bolick would have spent more time on social issues.

Too Little Judicial Activism?
I read this book after seeing a presentation by the author on C-SPAN which he made at the Cato Institute here in Washington, which also published the book. Cato is of course a well-respected libertarian think tank which publishes a lot of material and hosts speaker presentations on the general themes of government encroachment, individual freedom of action, and limited government.The author, a well credentialed lawyer involved with several public-service law firms and institutes, puts forward quite a bold thesis for these days:we need more, not less, judicial activism. He suggests that too often courts sit by while individual freedom is circumscribed by government.I had not really had much experience with the libertarian approach, and found his discussion to be quite interesting in that regard.

A good introduction is offered through a discussion of the author's Swedenburg Supreme Court case, which ended state efforts to foreclose out-of-state wineries from shipping their product into the state.Next, the author looks at "activism" from both the conservative and liberal lperspectives. Along the way, the author takes some shots at Justice Breyer, Professor Sunstein, and the "Chevron doctrine" which encourages courts to defer to administrative agencies when interpreting their formative statutes. The author also discusses theories of constitutional interpretation, and argues that courts are more democratic than we think. A particularly interesting chapter deals with instances of bad activism (e.g. Plessy and Caroline Products), and the Warren Court is critically examined ("pick and choose" jurisprudence). The book becomes particularly interesting when the author discusses the Rehnquist Court and his favorite justice of all time--Clarence Thomas (for whom he worked at the EEOC and supported during his nomination battle). The final chapters deal with favorite libertarian topics: economic liberty; private property rights; school choice.Finally, the author concludes with kudos for state constitutions and state courts, as demonstrating significant potential to deliver good activism for the right reason.

While the author's evaluation of cases and doctrines is highly subjective, nonetheless the book is a stimulating introduction to the libertarian philosophy and offers a unique slant on the whole issue of what judges should be doing, activist or not.The fact that the author was himself involved in many of these cases adds a rich additional perspective. An excellent selection of notes is attached.At around 160 pages the book moves along nicely and holds the reader's interest. ... Read more

Product Description
The Supreme Court appointments process is broken, and the timing couldn't be worse--for liberals or conservatives. The Court is just one more solid conservative justice away from an ideological sea change--a hard-right turn on an array of issues that affect every American, from abortion to environmental protection. But neither those who look at this prospect with pleasure nor those who view it with horror will be able to make informed judgments about the next nominee to the Court--unless the appointments process is fixed now. In The Next Justice, Christopher Eisgruber boldly proposes a way to do just that. He describes a new and better manner of deliberating about who should serve on the Court--an approach that puts the burden on nominees to show that their judicial philosophies and politics are acceptable to senators and citizens alike. And he makes a new case for the virtue of judicial moderates. Long on partisan rancor and short on serious discussion, today's appointments process reveals little about what kind of judge a nominee might make. Eisgruber argues that the solution is to investigate how nominees would answer a basic question about the Court's role: When and why is it beneficial for judges to trump the decisions of elected officials? Through an examination of the politics and history of the Court, Eisgruber demonstrates that pursuing this question would reveal far more about nominees than do other tactics, such as investigating their views of specific precedents or the framers' intentions. Written with great clarity and energy, The Next Justice provides a welcome exit from the uninformative political theater of the current appointments process. ... Read more

Customer Reviews (4)

Justices cannot avoid controversial choices simply by adhering to the law
"The Next Justice" is on the ROROTOKO list of cutting-edge intellectual nonfiction. Professor Eisgruber's book interview ran here as cover feature on July 22, 2009.

Solid and Fair Analysis of the Process
The appointment process for nominees to the United States Supreme Court is broken, asserts Christopher Eisgruber, and it needs to be fixed.Considering the power wielded by the nine justices, this is not an assertion with which many would argue.The nomination process has long been contentious but, particularly since the Bork hearings, it has become a colossal waste of time.Recent hearings have been an exercise in stonewalling that tell senators and the American people next to nothing.The issue becomes, then, how to fix it.This is where the going gets trickier.

But Mr. Eisgruber is careful in the development of his theme.He starts by pointing out that it is impossible to get politics out of the process and that people who assert the opposite are being disingenuous.The Constitution has too many abstract ideas and too much vague language for a person to be neutral in interpreting it.Even parsing out the implications of what seems to be very clear language requires judgement that is a reflection of a person's beliefs.He points out that "judicial restraint," "strict construction," and "originalism" are all terms reflecting ideological slant (that can work both ways) and that "deference to elected officials," while possible, is rarely achieved even by those who claim to follow it (which almost no one does anymore).

Mr. Eisgruber then gives us some background on how the Court works, as an insider who clerked there.He takes us through some history, and the impact of certain court decisions.He points our that even Supreme Court justices can't do anything they want, bound as they are by certain procedures and requirements.However, knowing their judicial philosophy offers the most insight into the type of justice a person will be.

Judicial philosophy is the key for Mr. Eisgruber.He points out that every president since Eisenhower has vetted their nominees carefully and new fully well the type of justice they were putting on the court.That, unlike what some people think, there have really been no "surprises."Senators have done less well in determining what the judicial philosophy would be and Mr. Eisgruber has a number of suggestions and lines of questioning that might help senators ferret out this information for the American people.If the hearings could do that, he thinks, then the process would do what it is supposed to do.

He is realistic, however.He seems to understand that even his suggestions won't work without a government committed to trying to do things better, something that doesn't necessary seem to be on the horizon.He also is a realist in that it is clear that certain arrangements will make certain things happen whether we like it or not.(i.e. A conservative president with a conservative majority in the Senate will get conservative justices through and vice-versa.Moderate justices are the result of presidents and Senates with different ideological slants.)But he is optimistic about what could be done if we were willing to demand things to be different.

Overall, I like what Mr. Eisgruber does with this book.He is a very clear and disciplined writer, if not a dynamic one--pretty much what you might expect from someone who has spent his career in the field of law.He is also very open about the fact that he tends towards the liberal side of the political spectrum.And yet, he then proceeds to give a very balanced assessment of the appointment process, peppering his explanations with his insights from working for both liberal and conservative judges over the course of his own career.He doesn't demonize conservative justices or canonize liberal ones and, though he points the direction for what he feels would be a fairer process, he understands that even a "fair" process wouldn't necessarily give him a Supreme Court of the bent he might desire personally.To handle such a charged subject with this level of fairness is something that deserves high praise.

A Liberal Trojan-Horse ....?
This book has two commendable characteristics, one procedural and one substantive.Procedurally, the author does a fine job of distilling his expert knowledge of constitutional law into language that is clear and easily accessible to the layman.Substantively, he persuasively explains how our Constitution, written as it is in abstract, general terms, requires that Supreme Court justices make politically controversial judgments.Thus, contrary to some commentators who say that only a nominee's technical qualifications should be relevant, Eisgruber shows that a nominee's judicial philosophy, which includes their ideology, should be a basis for a Senator voting yes or no on a nominee.

These points alone make the book worth reading.

That said, Professor Eisgruber makes a couple of problematic claims that ultimately make his recommendations for improving the appointment process unlikely to be helpful. And since that's the point of the book, it must weigh heavily in my rating:

1) His specific explanation of how the appointment process is "broken" doesn't seem to comport with reality. Eisgruber argues that Senators rely too heavily on the public hearings, in which meaningless concepts like "judicial restraint" are bandied about by carefully coached nominees, and do not spend enough time combing through the nominee's past history to glean the ideological and procedural values that determine what kind of Justice the nominee will be.But, this claim doesn't stand up to strict scrutiny.

Why not? Because most if not all Senators obviously already *do* this. Liberal senators often vote against conservative nominees, and vice-versa.These senators are keenly aware of a nominee's ideology, and factor it heavily in their voting.And even though moderate Senators aren't so ideologically oriented, tendingto focus on the nominee's technical qualifications, and as long as those are in good order, only voting against if the nominee has an "extreme" ideology (e.g., the 2005 "no filibuster" agreement between moderate democratic and republican senators), they obviously do consider ideology as well.

In fact, on the surface,the criteria used by moderate Senators sound very close to Eisgruber's recommendation, which is that, except in unusual circumstances, Senators should vote for moderate nominees, not "rigid or extreme ideologues" of either the left or right.

So if, despite the largely vapid nature of the choreographed nomination hearings, liberal and conservative Senators are usually well aware of a nominee's ideology (and don't hesitate to vote based on that), and moderate Senators are too but allow it to influence their vote only when, as per Eisgruber's recommendation,the ideology is rigid or extreme, what is Eisgruber's ground for complaint?

2) Eisgruber correctly chastises recent Presidents, particularly Nixon, Reagan, and GW Bush, for disingenuously characterizing some of their obviously conservative judicial nominees as "moderates".But, Eisgruber does the same thing, only in a liberal direction. His definition of a judicial moderate (p. 120) is a judge who has two characteristics:

a) a "lively and thoughtful understanding of the limits of the judicial role" , which Eisgruber translates as a procedural belief that justices should have a healthy respect for both past court decisions (precedent) and the legitimate role in the law of other institutions, such as congress , legislatures, and the executive. In other words, a moderate Justice proceeds cautiously, and doesn't try to over-reach his/her authority and transgress on the policy-making powers of others.

b) "an open-mindedness towards novel claims of constitutional justice brought by unpopular or disadvantaged groups or persons", which Eisgruber says (p. 121) is a way to make the country "more inclusive and responsive" to the claims of groups that have suffered due to malice, misunderstanding, or neglect.

The problem? While the first aspect of Eisgruber's definition of judicial moderation is seemingly ideologically neutral (or moderate), the second aspect is clearly ideologically liberal. To be sure, open-mindedness is a moderate, and admirable quality.But to be truly "moderate", one can't be open-minded towards the justice claims of some societal groups but not others. Why doesn't Eisgruber's definition of "moderate" emphasize open-mindedness towards the novel justice claims of large corporations? Or the wealthy? Or white males?

Surely, a moderate would be open-minded towards the justice claims of everyone in our society.A special sensitivity to the justiceclaims of disadvantaged groups such as gays, racial minorities, and religious minorities is -whether you think it a good idea or not - clearly characteristic of liberal ideology, just as a focus on the justice claims of corporations and the rich is characteristic of conservative ideology.

Thus, Eisgruber inadvertently gives away his game: He wants to see more justices appointed who will vote liberal on social issues such as gay rights, affirmative action, and abortion. His Trojan horse is to convince us to re-define characteristically liberal ideology as "moderate".

Further evidence of Eisgruber's conflation of 'liberal' with 'moderate' lies in how he uses these terms to characterize sitting justices. For example, on page 87 he refers to Justice Stevens as a liberal, but on page 44 he calls him a moderate. Likewise, on page 64 Justices Breyer and Souter are called liberals, but on page 121 they are called moderates.

I wasn't fooled by this, I hope you won't be, either.

Yet Another Look at Supreme Court Nominations
There recently has been a deluge of very solid books discussing the almost pathetic state of the process for confirming nominees to the Supreme Court.I have reviewed several of these books on Amazon, and each one makes a contribution to trying to deal with the present situation. This book, by a Princeton provost and Professor of Public Affairs, is somewhat unique.First, the author clerked for Justice Stevens and brings to bear an insider's perspective.One might argue that this is not an advantage, since the focus here is on Senatorial confirmation practices.But it is because what makes this book uniquely interesting is the author's analysis of the problem and his prescription for improvement.

Second, for Eisgruber, it is foolish to waste time arguing about whether Justices make policy, ought to be no more than impartial umpires, and should be forced to disclose their views of particular cases during confirmation hearings.In fact, Eisgruber believes far too much emphasis has been placed on the importance of hearings, which as recent examples demonstate, often simply don't do the job. The author suggests that making controversial decisions is simply built into the role of being a Justice, since the Constitution speaks in abstract terms, with implied principles, and legal history often cannot provide explicit answers to the intentions of the framers.

Rather than focusing on hearings, Eisgruber recommends the Senate investigate nominees much as Presidents do--get to the basics of their philosophy of judicial review (i.e., "what it is good for"), their views regarding when it is appropriate to defer to the elected branches, their conception of the "judicial role," and what their overall judicial philosophy consists of.This approach will yield, he suggests, true judicial moderates for the bench.For Eisgruber, the notorious Bork hearings were a success, since they represented the only recent example of an extended dialogue with the nominee about his judicial philosophy.Eisgruber recognizes that we will probably never ever have a repeat, and this is another reason he discounts hearings. He does offer, however, suggestions for improving hearings and some possible questions that would elicit pertinent information, rather than evasive discharges of octopus-like ink, from nominees.

This is a valuable book not only because it offers important constructive suggestions for improving the hearing process, but also because Eisgruber's discussion of how Justices make decisions and the factors that influence their decision making (which is really the bulk of the book) is laced with the insight of a former clerk for one of the acknowledged giants of the Court.There are excellent notes, but not a bibliography unfortunately.A significantly important contribution to the literature on this topic. ... Read more

Product Description
When the first President Bush chose David Hackett Souter for the Supreme Court in 1990, the slender New Englander with the shy demeanor and ambiguous past was quickly dubbed a "stealth candidate". Since his appointment, Souter has embraced a flexible, evolving, and highly pragmatic judicial style that embraces a high regard for precedent--even liberal decisions of the Warren and Burger Courts with which he may have personally disagreed. Ultimately, Yarbrough contends, Souter has become the principal Rehnquist Court opponent of the originalist, text-bound jurisprudence that many of the more conservative Justices profess to champion. Sifting through Souter's opinions, papers of the Justice's contemporaries and other relevant records and interviews, esteemed Supreme Court biographer Tinsley Yarbrough here gives us the real David Souter, crafting a fascinating account of one of the heretofore most elusive Justices in the history of the Court. ... Read more

Customer Reviews (2)

A little dry
The book mostly details his legal career which is a little dry, it came most alive when describing his early life and personal habits. The section concerning his time as the NH's attorney general was very thought provoking b/c you can trace from what conservative beginnings sprang his judicial leanings.But 3/4s through the book I started turning to the end of the book...even though I knew the way it ended, its a biography.

A Superb Judicial Biography of Justice Souter
Writing judicial biography can be a challenging undertaking.How much of the judge's family history should be included?; what elements of the judge's pre-court career merit careful examination?; how extensive should the discussion be of how and why the judge was selected for the position?; and finally, how many of the judge's decisions should be reviewed to round out the picture?It is a pleasure to report that Professor Yarbrough has mastered the craft well, having written prior biographies of both Justices Harlan, Judge Frank Johnson, and District Court Judge Waring.

This an enormously valuable resource for understanding Justice Souter. It gives just enough attention to his family background and his pre-Court career. Many judicial biographies rush over the process whereby the subject is selected; not so here.This chapter is particularly of pertinent interest given the current Roberts' hearings.It is surprising to see Souter, labeled by many as the "stealth nominee," being far more candid with the Judiciary Committee than Judge Roberts in his testimony.

It is a particularly difficult task to discuss the judicial philosophy of a subject who is still on the court.In fact, Justice Souter will finish out 15 years in October, 2005.Once again, Yarbrough is up to the task.Much attention is devoted, and rightly so, to Souter's "common law" adherence to precedent.Over the 15 years so far, the Justice has developed a position of moderate liberalism (with the exception of criminal justice) on such issues as establishment, maintaining Congressional authority, limiting "state sovereignty," restricting the reach of the "taking clause, Bush v. Gore, and protecting the right to privacy.

The book is especially valuable in discussing Souter's interactions with other members of the Court, particularly as regards the critical Planned Parenthood v. Casey decision. Yarbrough here relies heavily on Justice Blackmun's now public court files to trace the maneuverings that occurred in this case.As I explained in my Amazon review of Linda Greenhouse's Blackmun biography, I am still a bit uncomfortable with the private memos of sitting justices being studied, even though they add enormously to the value of Yarbrough's discussion.His chapter on Bush v. Gore is also very strong in terms on explaining exactly what motivated various of the Justices in that case.

I would have liked Yarbrough to have included a bibliography, to compliment his extensive notes.He also apparently has made little use of the professional literature (such as law review articles) on Souter, although I was surprised to discover that there is not that much attention that has been devoted to the Justice.All the more reason to be appreciative of this fine judicial biography that admirably fills the gap. ... Read more

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Examines the critical role assumed by the U.S. judiciary in balancing concerns about national security with the protection of liberty after the terrorist attacks of 9/11. ... Read more

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Even with the recent changes in its makeup, most people think the Supreme Court is roughly balanced between left and right. This is a myth. In fact the justices once considered right-wing are now the Court's moderates; those who were once centrists are now the Court's "liberals"; and the liberal element, once represented by Thurgood Marshall and William Brennan, has all but disappeared.

Many people also think that judicial activism is the province of liberals. This is also a myth; since William Rehnquist was confirmed as Chief Justice in 1986, the Supreme Court has struck down decisions of Congress more than thirty times-an unprecedented record of judicial activism. Some conservatives want to return to the eighteenth-centuryConstitution or to restore "the Constitution in Exile," by which they mean the Constitution as it existed before the administration of Franklin Delano Roosevelt.

In Radicals in Robes, Cass R. Sunstein explains what this constitutional vision would mean. It would endanger environmental regulations, campaign finance laws, and the right to privacy. It would threaten the Federal Communications Commission, the Securities and Exchange Commission, the Environmental Protection Agency, and many other federal agencies. It might well allow states to establish official religions. It would impose sharp new limits on Congress's authority to protect rights.

Radicals in Robes pulls away the veil of rhetoric from a dangerous and radical movement and issues a strong and passionate warning about what some extremists really intend. One of the most respected legal theorists in the country, Sunstein here issues a warning of compelling concern to us all.Amazon.com Review
According to legal scholar Cass Sunstein, it is not enough to label judges as "liberal" or "conservative" or any other ideological stripe; one must also take into account their approach to constitutional interpretation. In Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, he outlines four approaches that have long dominated constitutional debate--perfectionism, majoritarianism, minimalism, and fundamentalism--and argues for minimalism and against fundamentalism (perfectionism and majoritarianism are given less attention since they have largely fallen out of favor in recent decades). Minimalists believe in narrow, incremental decisions rather than broad rulings. They respect precedent, recognize the limited role of the judiciary, and "seek outcomes on which people with varying views can agree." Fundamentalists believe the Constitution must be interpreted according to "original understanding," or precisely what was meant at the time of ratification. "In the abstract, fundamentalism appears both principled and neutral. But too much of the time, fundamentalists offer an unmistakably partisan vision of the Constitution," he asserts. Though he acknowledges that fundamentalism can sometimes be reasonable, the risks of abuse are too great, leading him to conclude that the approach is "destructive and pernicious" because it leads to less freedom for Americans. In practice, for instance, it could ban the sale of contraceptives, invalidate most environmental regulations, allow discrimination on the basis of race and sex, allow states to establish official churches, and overturn even modest gun control laws.

Though they claim a devotion to history, Sunstein believes fundamentalists are "seeking to produce a federal judiciary that operates as an arm of the political branches."In making this point, Sunstein shows how "judicial activism" by extreme conservative judges has been on the rise since the Reagan administration, moving the Supreme Court hard to the right in the process. He discusses the implications of this shift on issues such as the right to privacy, marriage, affirmative action, national security, the separation of powers, gun control, and religion in public life, among others. In Radicals in Robes, Sunstein skillfully outlines complex constitutional issues in clear language, making this a useful and thought-provoking book for lay readers and legal experts alike. --Shawn Carkonen ... Read more

Customer Reviews (16)

Thought-provoking but not entirely persuasive
I found this book to be thought-provoking, although it tries to cover too much ground to be entirely persuasive.The most convincing sections describe how the so-called "fundamentalist" approach will often result in legal interpretations that run counter to the opinions and values held by a majority of Americans, although Sunstein is sometimes too quick to assume that everyone else holds the same opinions that he seems to hold.More importantly, regardless of the possible merits of a sincere originalist approach, he demonstrates that "fundamentalism" is distinct from "originalism," since the positions typically held by self-described originalists generally serve a right-wing political agenda, and original understandings are often downplayed or ignored completely when they don't support that agenda (for example, regarding affirmative action, regulatory takings, and presidential war powers).However, Sunstein's treatment of "fundamentalism" is incomplete in some ways, as other reviewers here have pointed out.And, as someone sympathetic to "perfectionism," I found his facile rejection of "Liberty Perfectionism" (as well as other forms of perfectionism) to be unconvincing.To his credit, Sunstein often points out criticisms that followers of one of the legal approaches he describes might level against the assumptions or arguments used by followers of another approach.And his general point that judges should never be too sure that they are right is well taken, and valid across the political spectrum.So read this book for its relatively non-ideological discussion of the role of judicial review, and prepare to have some of your views supported and others challenged.

Why less is sometimes more
This book has helped me to stregthen my view, that it is always dangerous to strive for a greater good by utterly human means. That is what the fundamentalists do. They believe to be in a position that allows them to pass judgement on everybody else, but not on themselves. A fundamentalist does not doubt his cause. That is frightening.
Mr. Sunstein built a pretty strong case against such an approach to the founding document of every state - the constitution. Coming from a former Communist country, the Czech Republic, I do think that there is much at stake here. Especially when someone claims to hold the ultimate truth. Talk to our president about it.
My only objection aims at the use of the notes, which are at times too vague to my liking, but that is quite a minor critique.

A Rare Book in the Middle
I consider myself conservative and like judges Scalia and Thomas, but I found Mr Sunstein's book a truly moderate one. He acknowledges that Roe was a mistaken ruling and this established his credentials as a moderate for me. I was then willing to read the rest of the book with an open mind and reassessed some of my positions on other issues. I found his chanpter on affirmative action weak, but most of the book was nonpartisan and logical.

Not the best place to look for a balanced view
This book's biggest failure is its assumption that its readers will share the author's own political views.

Cass Sunstein is a well-known academic, whose articles have proven extremely illuminating and helpful to many.This book, however, has failed miserably to meet the lofty standards that Sunstein's prior works set.Though his articles on the regulatory state have changed the way I think about statutory interpretation, Sunstein failed to persuade me even slightly in this book.

The author strongly criticizes "fundamentalism" (perhaps better known as "originalism").He warns the reader that because "originalism" is aligned so closely with conservatives'/Republican's political views, that it must be the case that the originalist view suffers from bias.

The author does not anticipate that some readers, such as myself, are socially liberal, and yet find textualism and originalism appealing.His arguments thus failed to speak to me-- he tells the reader that originalism= conservatism, and yet i believe in originalism, but am socially liberal.What gives?

He then takes cheap shots on originalism, which he should know better than to make.He marches out a parade of horribles that would result if originalism were accepted.For example, he argues that school segregation may be permissible, the EPA's authority may be proscribed, etc. etc.He does not take into account many originalists' view (including my own), that if it were not for the Court's legislating from teh bench, that the political process (via Constitutional amendments) would prohibit discrimination, and expand the scope of agencies' powers.

His myopic view is all the more startling when one reads his defense of "minimalism" (Sunstein's preferred view).Sunstein states that we should accept the Constitution as it is currently, but that one should take "minimalist" approaches in providing any further changes.The critics argue that Sunstein is simply happy with the current Constitution, and ergo espouses the "minimalist" view, to which he responds:

"Suppose perfectionsits really can show that their approach produced a number of decisions that are desirable and that no other approach could have generated.The principled minimalist responds:So what?If the Court had not acted, the democratic process might have done so instead."

Yet, in hypocritical fashion, Sunstein launches into a tirade against originalism, arguing that that approach reaches undesirable results.As an originalist, I'd argue:"If the Court had not acted, the democratic process might have done so instead." Sunstein does not allow originalists this defense, and it is shocking that he would nonetheless use that argument himself.

This is a better book than you will find by the likes of Ann Coulter or Michael Moore.It is not a bad book, but just very, very disappointing to those who expected more from the author.Given Sunstein's unbelievably brilliant law review articles, I'm shocked and disappointed by his patently biased discourse in this book.I refuse to believe that he, in good faith, actually believes the arguments he makes (he argues, for example, that originalism is tantamount to the "rule of the dead";yet, Brown vs. Board of Education was written by judges who are now dead-- would he suggest that we ignore that decision because those judges are dead?Surely a man as smart as he understands that we respect legal texts because of the process they went through to attain the status as binding law, and not out of reverence for the dead).

I could not help but feel that this is simply a thinly veiled attack on conservatives;Sunstein had an axe to grind with conservative legal scholars and probably thought that writing a book for a wide audience defaming them and misrepresenting their views would allow him to blow off some steam.But although I do not mind people attacking conservatives-- i'm a minority/atheist/social liberal who also cannot stand "jesus freaks"-- when an author as accomplished as Sunstein parades a political attack as an academic work, I cannot help but be disappointed.I give this book 2 stars, and not 1 star, because people who feel insecure in their originalist views should read this book to see that many of the criticisms of originalism are quite specious.Sunstein takes his best shot at originalism and fails badly, and an originalist should feel good after finding out that this is the best that the leading "non-originalist" can do.

I do hope that Sunstein writes again on the topic-- I would be very interested in reading what he would say about a subject like this if he made a conscious effort to remove his political views.

Sunstein's Wishful Thinking Theory of Constitutional Analysis
I will focus solely on Sunstein's take on the Second Amendment.He supports the so-called "collective rights" theory which a) runs exactly contrary to the plain text of the amendment b) the historical understanding of the courts and c) against the current "standard model" of legal interpretation of the Second Amendment (which is in fact a return to the historical view of the right - an individual right).He ignores the 14th Amendment and incorrectly interprets one of the few modern Second Amendment cases - Miller (which ruled that weapons suitable for military (militia) use ARE protected.Sunstein bends and twists language, precedent and history to yeild his desired interpretation, rather than be informed by the same as to what the writers of the Constitution intended.This way lies madness, where words have no meaning or context and the Constitution is maleable as wax, offering no limits on the government and no protection to the citizens rights.Don't waste your time or money on this book, as the subject of this fiction is politics and not the Constitution. ... Read more

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