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More forthcoming books

If your Supreme Court reading list is starting to get anxiously short, hold on – more books are coming. As the list below reveals, there is no shortage of forthcoming books on last year’s health care case.  (In a similar post in November 2012, we listed other forthcoming books on the Court.) And look for books on how the Warren Court handled the landmark Brown decision and how the Roberts Court handled five of its most important rulings.  Additionally, two social scientists examine how the Court reaches consensus, while another author analyzes how the Court approaches questions of military justice. Confirmation hearings – a topic of continued interest to Supreme Court watchers – receive new attention in a new book that offers some “contrarian” views.  To cap things off, this summer will see the return of two scholarly works on the Court: the revered The Supreme Court Review and its economic companion, the Supreme Court Economic Review. Finally, this year two Supreme Court correspondents will publish new books: the National Law Journal’s Marcia Coyle (see below) and The Wall Street Journal’s Jess Bravin (The Terror Courts: Rough Justice at Guantanamo Bay, Yale University Press).  

  • Remi Aston, ed., Health Care, the Supreme Court and the Constitutionality of the Individual Mandate (Nova Science Pub Inc., June 2013)

As part of the Patient Protection and Affordable Care Act (ACA), as amended, Congress enacted the “individual mandate,” which requires certain individuals to have a minimum level of health insurance. Individuals who fail to do so may be subject to a monetary penalty, administered through the tax code. Prior to the ACA, Congress had never required individuals to buy health insurance, and there had been significant debate over whether the individual mandate was within the scope of Congress’s legislative powers. This book provides an overview of the Patient Protection and Affordable Care ACT (ACA), the Supreme Court, and the constitutionality of the “individual mandate.”

  • Paul M. Collins & Lori A. Ringhand, Supreme Court Confirmation Hearings and Constitutional Change (Cambridge University Press, June 2013)

Before Supreme Court nominees are allowed to take their place on the high Court, they must face a moment of democratic reckoning by appearing before the Senate Judiciary Committee. Despite the potential this holds for public input into the direction of legal change, the hearings are routinely derided as nothing but empty rituals and political grandstanding. In this book, Paul M. Collins, Jr., and Lori A. Ringhand present a contrarian view that uses both empirical data and stories culled from more than seventy years of transcripts to demonstrate that the hearings are a democratic forum for the discussion and ratification of constitutional change.

  • Pamela Corley, Amy Steigerwalt, & Artemus Ward, The Puzzle of Unanimity: Consensus on the United States Supreme Court (Stanford Law Books, May 2013)

Drawing on data from the U.S. Supreme Court database, internal court documents, and the Justices’ private papers, The Puzzle of Unanimity provides the first comprehensive account of how the Court reaches consensus. Pamela Corley, Amy Steigerwalt, and Artemus Ward propose and empirically test a theory of consensus; they find consensus is a function of multiple, concurrently operating forces that cannot be fully accounted for by ideological attitudes. In this thorough investigation, the authors conclude that consensus is a function of the level of legal certainty and its ability to constrain Justices’ ideological preferences.

  • Marcia Coyle, The Roberts Court (Simon & Schuster, May 2013)

The Roberts Court – seven years old, generally divided five to four between conservatives and liberals – sits at the center of a constitutional maelstrom. Marcia Coyle, the highly regarded correspondent for the National Law Journal who has covered the Court for twenty-five years, reports on its direction under Chief Justice Roberts, as she traces the paths and resolutions of five landmark decisions on race, guns, immigration, campaign finance, and health care. Coyle recounts how a smart group of conservative lawyers has crafted cases with an eye towards an increasingly receptive conservative majority. She describes the long paths these cases take to reach the Court, and how their resolutions expose the political divisions among the justices: originalists v. pragmatists on guns and the Second Amendment; “corporate money is speech” v. “corporate money is not speech”; and state vs. federal powers in the cases of immigration and health care.

  • Jeffrey D. Hockett, A Storm over This Court: Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education (University of Virginia Press, April 2013)

Offering a unique interpretation of the basis of Brown v. Board of Education, Jeffrey Hockett critiques an array of theories that have arisen to explain the iconic decision and Supreme Court decision making generally. Drawing upon Justices’ books, articles, correspondence, memoranda, and draft opinions, A Storm over This Court demonstrates that the puzzle of Brown’s basis cannot be explained by any one theory. In borrowing from the insights of numerous approaches to Supreme Court decision-making, this study also reveals the inaccuracy of the popular perception that most of the Justices merely acted upon a shared, liberal preference for an egalitarian society when they held that racial segregation in public education violates the Equal Protection Clause of the Fourteenth Amendment. A majority of the Justices were motivated, instead, by institutional considerations, including a recognition of the need to present a united front in such a controversial case, a sense that the Court had a significant role to play in international affairs during the Cold War, and a belief that the Court had an important mission to counter racial injustice in American politics.

  • Jonathan Lurie, The Supreme Court and Military Justice (SAGE-CQ Press, September 2013)

As part of the series edited by Mel Urofsky, Lurie has completed a study of the Supreme Court and military justice.  Replete with excerpts from key cases as well as contemporary documents, Lurie tries to show how uncomfortable, of necessity, the Supreme Court has been in its dealings with military justice. From the Civil War to Guantanamo Bay, he explores the interplay between judicial supremacy and “military necessity.”  In this area, at least, it appears that our Supreme Court may not be that supreme, after all.

  • Andrew Koppelman, The Tough Luck Constitution and the Assault on Healthcare Reform (Oxford University Press, March 2013)

Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act–more commonly known as Obamacare. But legal experts observed that the decision might prove a strategic defeat for progressives. Roberts grounded his decision on Congress’s power to tax. He dismissed the claim that it is allowed under the Constitution’s commerce clause, which has been the basis of virtually all federal regulation–now thrown in doubt. In The Tough Luck Constitution and the Assault on Health Care Reform, Andrew Koppelman explains how the Court’s conservatives embraced the arguments of a fringe libertarian legal movement bent on eviscerating the modern social welfare state. They instead advocate what Koppelman calls a “tough luck” philosophy: if you fall on hard times, too bad for you. He argues that the rule they proposed–that the government can’t make citizens buy things–has nothing to do with the Constitution, and that it is in fact useless to stop real abuses of power, as it was tailor-made to block this one law after its opponents had lost in the legislature. He goes on to dismantle the high court’s construction of the commerce clause, arguing that it almost crippled America’s ability to reverse rising health-care costs and shrinking access.

  • Dennis J. Hutchinson, David A. Strauss and Geoffrey R. Stone, eds., The Supreme Court Review (University of Chicago Press, July 2013)
  • Ilya Somin, Joshua Wright & Todd J. Zywicki, eds., Supreme Court Economic Review (University of Chicago Press, July 2013)

Recommended Citation: Ron Collins, More forthcoming books, SCOTUSblog (Mar. 8, 2013, 10:38 AM),