The Decline and Fall of the Supreme Court: Living out the Nightmares of the Federalists

The Decline and Fall of the Supreme Court: Living out the Nightmares of the Federalists

The Decline and Fall of the Supreme Court: Living out the Nightmares of the Federalists

The Decline and Fall of the Supreme Court: Living out the Nightmares of the Federalists

Synopsis

The Decline and Fall of the Supreme Court examines the contemporary work of the U.S. Supreme Court and the advice and consent role of the Senate with regard to nominees to the Court. After presenting historical background on the intentions of the federalists and 20th-century jurisprudence, the work describes the baleful effects of the recent theory known as "legal realism." The author examines the most dramatic of those effects--the polarized, polarizing, and partisan confirmation hearings with which the United States has become familiar--beginning with Abe Fortas and culminating with Robert Bork and Clarence Thomas. This study will be of interest to scholars and laypeople in American history, political science, and law.

Excerpt

In this book, I describe the consequences of the triumph of a set of ideas, a triumph consummated both in legal academe and (though to a lesser extent) on the bench and at the bar. These domains have fallen to a conqueror that goes by the name "legal realism." In one paragraph, the story I want to tell is as follows:

Over the course of fifty-four years, from 1937 until the time of the Clarence Thomas hearings in 1991, the Supreme Court of the United States suffered a grievous loss of institutional stature and of its once-clear function within a constitutional system of government. A Court that was meant to be free of faction is now perceived by all the pertinent publics, by politicians in office and out, as a mere collection of nine power seekers and power keepers. The nine are now politicians in a city that swarms with politicians; they are indistinguishable from the rest. The Court has lost its sanctity. Because of this loss, members of the Court are now subject to the same power machinations as are presidential candidates and activist movie stars. If the Court is not special, not unique, then there is no reason the selection of its members should be an elevated or even a particularly deliberative act. The decline and fall of the Supreme Court--through its disastrous acceptance of the jurisprudence of realism--came first. The decline and fall of senatorial "advice and consent" are a consequence.

In the first two chapters, I provide some essential historical background. In Chapter 1, I glean what I can from the Federalist Papers on the meaning and intended operation of the "advice and consent" clause as it applies to judicial nominees. In Chapter 2, I describe a critical constitutional turning point, the shift in the Court's view of its own responsibilities in 1937, a shift justified then and since by the language of "restraint." In the rest of the book, I treat a variety of constitutional, statutory, and partisan developments . . .

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