An end-of-the-year round-up of books about the court — its most recent term, its Jewish justices, its law clerks, its history, and its treatment of bankruptcy law
on Dec 21, 2016 at 4:25 pm
OCTOBER TERM 2015 — The American Justice series of timely books on a Supreme Court term began in 2014 with Garrett Epps’ “Nine Clashing Visions on the Supreme Court.” The series, edited by Epps, continued with Steven Mazie’s “The Dramatic Tenth Term of the Roberts Court.” These slim volumes (all under 170 pages) are released in record time, around mid-September following the term they review. Now comes the latest entry, Lincoln Caplan’s “The Political Supreme Court.” Unlike its predecessors, this volume is far less case-focused. Instead, the author provides a “thematic account of the current Court term.” By that measure, the book contains a good dollop of history (the main subject of three of the book’s six chapters). Positing that the court’s legitimacy is in jeopardy, Caplan urges six remedial steps in his closing chapter, which also includes a brief discussion of Chief Judge Merrick Garland’s jurisprudence.
JEWISH JUSTICES – Anyone setting out to write a new book on the Supreme Court’s Jewish justices faces a formidable task. That is owing to the high caliber of previous treatments of the subject, such as Jeffrey Rosen’s “Louis D. Brandeis: American Prophet” (2016); Melvin Urofsky’s “Louis D. Brandeis: A Life” (2012); Jennifer Lowe’s “The Jewish Justices of the Supreme Court Revisited: Brandeis to Fortas” (1994) (introduction by Ruth Bader Ginsburg, preface by Stephen Breyer); Robert Burt’s “Two Jewish Justices: Outcasts in the Promised Land” (1998); and “Brandeis on Zionism: A Collection of Addresses and Statements by Louis D. Brandeis” (1942) (foreword by Felix Frankfurter). Add to these all the various biographies of Louis Brandeis, Felix Frankfurter, Abe Fortas, and Arthur Goldberg, along with a range of new and forthcoming books on Ruth Bader Ginsburg.
Against that backdrop comes Rabbi David G. Dalin’s “Jewish Justices of the Supreme Court: From Brandeis to Kagan” (April 2017). The volume is part of the Brandeis Series in American Jewish Culture, and Life, edited by Jonathan Sarna. The value added comes primarily with the biographical treatments of Justices Stephen Breyer and Elena Kagan, and even a few words about Garland. The 16 pages of photographs are notable – some familiar, others less so (e.g., a 1955 high school picture of a young Breyer). And then there is this: All seven of the Jewish justices are profiled in a single volume and with a focus on the “changing role of Jews within the American legal profession.”
LAW CLERKS – When it comes to works on Supreme Court law clerks, Todd Peppers is ahead of the pack. He is the author of “Courtiers of the Marble Palace” (2006) and co-editor of “In Chambers: Stories of Supreme Court Law Clerks and Their Justices” (2012). Clare Cushman is the co-author of Peppers’ latest work, “Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices” (December 2015).
Together, Peppers and Cushman have collected 21 learned and often fascinating essays (several of which they authored). The essays span the period from “The ‘Lost’ Clerks of the White Court Era” to the modern era of justices up through David Souter. Contributors include law professors, former Supreme Court clerks, and practicing lawyers. It all makes for a rich and at times eye-opening insider’s view of the inner workings of the court and its members. Such accounts have now become an essential component of Supreme Court history.
Pepper’s next collection of essays (to be published by the University of Virginia Press) will focus on law clerks to noted federal and state court jurists, including Rose Bird, Henry Friendly, Learned and Augustus Hand, Judith Kaye, Hans Linde, Richard Posner, Roger Traynor, and J. Skelly Wright.
SUPREME COURT HISTORY – His name was Max Lerner. He was one of the journalistic giants of his time, and also an erudite commentator on American culture and law. Journalist, professor, author of numerous books, and public speaker, Lerner was a renaissance man. In 1994, a posthumous collection of his finest essays on law was published; it included such seminal articles as his “Constitution and Court as Symbols” and “John Marshall and the Campaign of History.” Now, nearly a quarter-century after Lerner’s death, “Nine Scorpions in a Bottle: Great Judges and Cases of the Supreme Court” (January 2017) returns like a phoenix. Edited by Richard Cummings and Stephen Wermiel, the stylishly written volume continues to have staying power.
BANKRUPTCY LAW IN THE SUPREME COURT – The lion’s share, and then some, of the literature on the Supreme Court is focused on constitutional law. There are, of course, exceptions, such as “Business of the Roberts Court” (2016), edited by Jonathan Adler; Julius Getman’s “The Supreme Court on Unions: Why Labor Law Is Failing American Workers” (2016); and Jonathan Cannon’s “Environment in the Balance: The Green Movement and the Supreme Court” (2015). But books on bankruptcy and the court are rare birds.
In April, Cambridge University Press will publish “Bankruptcy and the U.S. Supreme Court,” by Ronald Mann, who is also a contributor to this blog. Mann knows the court and its workings; he argued bankruptcy cases before the court while working in the office of the solicitor general, and before that he clerked for Justice Lewis Powell. Mann’s forthcoming book is a “comprehensive study of bankruptcy cases in the Supreme Court of the United States. The author provides detailed case studies based on the Justices’ private papers on the most closely divided cases, statistical analysis of variation among the Justices in their votes for and against effective bankruptcy relief, and new information about the appearance in opinions of citations taken from party and amici briefs.”