Mark Desrosiers's Reviews > A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution

A People's History of the Supreme Court by Peter Irons
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Dec 06, 2010

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bookshelves: law, history, politics, economics
Read from November 09 to 19, 2010

This groovy and jargon-free narrative is both more and less than the title suggests. "People's history" now indicates an openly ideological effort to recast "history" with sociology, underground martyrs, tragedies, and a general attempt to foreground the voiceless, plus ignore the "Great Men" except when they're bastards. This was Howard Zinn's messy specialty, and his foreword here is a benediction. But Irons doesn't wander into the Zinn muck very much: the Great Men (and Women) are very much with us here, albeit cut down to size. And though Irons gives some exciting narrative background to cases like Dred Scott and Gobitis, plus paints new portraits of the great Justices at work, on the whole I read this as more of a "popular history" -- i.e. a Supreme Court history stripped of mystery and legalese, with a bit of human frailty and excitement added in.

Some of the reviewers here were put off by the lengthy account of the Philadelphia Convention in 1787 -- 115 days of argument in eighty pages here. But I was riveted, and I think Irons's purpose is clear: the United States Constitution was not holy writ created by a meeting of brilliant minds, but the product of prejudice, compromise, experiment, short tempers, and windows shut against spies in mid-summer heat. Irons gives the lie to "strict constructionists" who ignore the social context and bitter debates -- not just in Philadelphia but in twelve state legislatures -- that got this cool but obviously Frankenstein-shaped document passed. Barely.

The rest of the book is a very selective history of the Court (our least democratic institution) as it shaped and got reshaped by a bitter, global, and bloody historical trajectory. One thing you'll notice -- and Irons takes pains to point this out at every turn -- is that most Supreme Court justices were mediocrities, dimwits, or worse. Hell even the position of CHIEF JUSTICE has often been filled by blinkered ideologues and political hacks. Dred Scott was not just an institution shooting itself in the foot, but let's face it, a wizened Southern aristocrat using his limited brainspace to arbitrate the future of our country. Similar idiotic results obtain in Plessy vs. Ferguson and Korematsu among many others.

But Irons properly exalts the heroes of the story, including John Marshall, John Marshall Harlan, Brandeis, Frank Murphy, Earl Warren, William Brennan, hell even Thurgood Marshall (whose epic strategery for the NAACP far overshadowed his work as a Justice). Oliver Wendell Holmes Jr. comes in for a bit of criticism as an elitist on several fronts, though it's hard to deny his writing and ability to keep the Court among America's respected institutions during rough times. Earl Warren is a fascinating mystery -- a conservative family-values Republican from California now widely perceived as the most liberal Chief Justice ever. Conversely, Antonin Scalia is revealed as a snarky and bitterly ideological justice whose pen gets dipped in Bible blood when homosexuality hits the docket. Fascinating to see justices grappling with their own ideology and this immutable (ha!) document to figure out crazy cases, and when the dodgy "right to privacy" came out the box in the sixties, well -- all hell breaks loose. And that continues today.

Irons does put together a compelling picture of strange times and strange cases, involving rightous grievants and grumbly, witty, twitchy justices -- hell I kinda think an illustrated version of this would become a bestseller. But he fails at the end, where he considers the contemporary (2005) Court. Bush v. Gore, where the Court essentially re-enacted Dred Scott and pissed a political decision into the air that had nothing to do with the Constitution -- gets a bland recounting without any fire of ideology whatsoever. And he seems all too careful in his assessment of Roberts and Alito... whereupon the book ends, abruptly, with no postscript or any effort to look back and bring these scores of morons and occasional geniuses into perspective as a part of American life and history. That omission forces me to omit a star. Well worth reading though...
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