Faille focuses, and properly so, on the Burger Court as a turning point.
The "litmus tests" that began to apply not only eroded the careful system of
checks and balances that, under Marshall, had led to the increased power of
the Court; they also winnowed away the Independence of the judiciary, what
Faille calls "legal realism." I happen to think that Faille is right about this
trend, and worry that a continued erosion of the authority of the Federal
courts will have a fundamental impact on American government.

Ultimately, a key to Constitutional interpretation rests on the Fourteenth
Amendment. Faille has done a fine job of presenting in each chapter the
potential impact of realism on the Fourteenth. Readers should pay
particular attention to his evidence in this regard.

Faille has written a book that raises seminal questions about the future
of the Supreme Court. If he is right, and the Supreme Court loses its moral
authority, then as a nation we have lost a key ingredient in our political
fabric. This book is a valuable resource for all who wish to understand the
direction of American jurisprudence.

I do not agree with every point that Faille makes, and I am absolutely
certain that he would shudder if I did. But his fundamental premise that the
authority of the Supreme Court is eroding should command a wide audience
of undergraduates, law students and professors. It is about the very essence
of the transformation of the Federal judiciary and of the Supreme Court of
the United States.

William C. Olson

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