The American Supreme Court

"McCloskey was a political scientist at Harvard who wrote this book in about 1960. It used to be that the best constitutional history was written by political scientists and government scholars. Now, most of the people writing the best constitutional history are in law schools. But there’s also been a big shift in law schools in the last 40 years. Many of my colleagues have PhDs in government or history. The people who 50 years ago would have been writing legal history books in government departments, are now writing them in law schools. Nevertheless, someone who earned a doctorate in government or political science has a different approach than somebody who’s trained only in law. In any event, McCloskey was a brilliant scholar of the Court. What I love about the book is that he sets the Supreme Court in its broader political and social context. He sees the Court as a creature of its times and as a political institution, which is the approach that I gravitate towards. He’s not that interested in legal doctrine, meaning the rules that courts come up with to interpret statutes or the constitution, for a free speech case or an equal protection case. I don’t think those doctrines really determine the outcomes in particular cases and neither does McCloskey. “It’s not unusual for a Court decision that advances too far beyond what public opinion will accept to produce backlash. Justices are aware of that” He’s more interested in things like how the great John Marshall, the Chief Justice for 34 years in the early 19th century, writes his nationalism into the Constitution. And how does the Court under Chief Justice Roger Taney come up with proslavery rulings? And what are the political implications of those rulings? He looks at the Court’s contributions to American history through that lens. He also focuses on the Court during the ‘ Lochner era,’ the first few decades of the 20th century, when the Supreme Court was striking down economic regulation, and he talks about the Court crisis over the New Deal. When I have LL.M. (Master of Laws) students, who are usually from other countries, take my constitutional law class or one of my constitutional history classes, I always suggest this book as background reading. It’s been updated to the present by another eminent constitutional law scholar, Sanford Levinson. But even the 1960 edition is useful for introducing oneself to the American Supreme Court and its history. McCloskey looks at the Supreme Court, as political scientists do, as part of a three-branch system of government. If the Supreme Court goes too far in challenging Congress, Congress has various weapons to use against the Supreme Court. Justices are well aware of that. So during Reconstruction, in the 1860s and 1870s, Congress was at odds with what Republicans thought was a hostile Supreme Court that might strike down their Reconstruction legislation. So Congress took away the Court’s jurisdiction in a case that had already been argued. The Reconstruction-era Supreme Court justices were intimidated and backed off. That happened in 1937 as well. I believe we’re again entering an era when, if the Court engages in too much conservative policymaking, liberals might retaliate by expanding the size of the Court, which is something that Democrats are starting to talk pretty actively about for the first time in many decades."