Good books are like good movies: When they're done, you hope there will be a sequel. So here is a request to Jeff Shesol, please write next about the intellectual history of the current Supreme Court. Half the work is already done. You did it in your last volume, brilliantly executed, Supreme Power: Franklin Roosevelt vs. The Supreme Court (W.W. Norton, 2010).
We're an early to bed early to rise family. Except in my case, where invariably I awaken to read for several hours in the middle of the night. It's quiet then. No distractions of any sort. Last night, I finished Shesol's account of the "switch in time that saved nine," Roosevelt's proposed legislation to pack the Supreme Court with justices more in line with views of the Constitution Roosevelt believed served the national interest.
This book is must reading for anyone who litigates constitutional issues. Shesol doesn't bring a lawyer's understanding to his history. The former Clinton speechwriter is trained as an historian. I suspect it is the lack of the cluttered and sometimes claustrophobic vocabulary of a lawyer that makes the book such a good and accessible read. Shesol would agree with Roosevelt that the Constitution is "a layman's document, not a lawyer's contract."
Roosevelt's efforts to focus national resources on the economic crisis we now refer to as the Great Depression was stymied by a Court populated by a majority of justices prepared to find almost any assertion of federal power anathema. As one New Deal provision after another was struck down, Roosevelt fumed. Were archaic notions of the nation's promise strangling its ability to deliver on that promise? The administration debated Constitutional amendments and legislative proposals to elimate judicial review, permit a legislative over-ride of a Court decision, and then, finally, to add as many as six new members to a Court trapped in the horse and buggy era. When Roosevelt came out swinging in support of the proposal to add justices, the nation was electrified by a debate about the role of the Court in our life. When several members of the Court later switched side, and ruled in favor of the New Deal legislation, the court-packing plan went belly up. Roosevelt declared victory. Of course, it was really not this simple.
The struggled over the Court''s New Deal identity really set the stage for the conflict about the Courts in our time. The court remains a controversial instutiton capable of stirring passionate disagreement.
Hence, in our time, the Federalist Society walks the walk of those justices who, in the early 1930s, struck down laws against child labor and the minimum wage. The main difference? Today conservative jurists have a well-honed ideology to guide them not just in deciding cases, but in applying litmus tests to just who is suitable to be a judge. Orignalism, America's closest brush with Oriental necromancy, is a product of the defeat of the Court's conservative wing. The vanquished retreated, and nurtured its own ideology in retreat during the days of the Warren Court. A conservative coup, decades in the making, yielded the Court now governing. This Court serves powerful social interests, but pretends merely to be interpreting a contract.
The Roberts Court makes law every bit as much as did the Warren Court, although it is not ideologically possible for conservatives to admit this. No, the gambit they employ to end debate is that they "find" the law. Only those who view the Constitution as, gasp!, a living instrument, "make" law. Courts should not make law. That is bad, bad, bad. Shosel's book lays bare the origins of this species of silliness.
A century ago it was common to speak of the Constitution as living, an organic instrument tethered to the laws of life. Shesol reminds us that long before contemporary conservatives took pot shots at the living Constitution, Woodrow Wilson, Oliver Wendell Holmes, Jr., and others supported the view of our founding document as a forward looking charter capable of growing and expanding to meet the new challenges of new days.
As I read Shesol I from time to time sat bolt upright and wanted to exclaim "Eureka!" There really is nothing new under the Sun. The deep crust of nectrotic interprative crust that has made such clauses as the due process clause virtual dead letters in our law today is of only recent formation. The battle for the Court and the meaning of the Constitution is a struggle that will live so long as the republic endures. Today's orthodoxies are yesteryear's bold and radical nonsense.
I would love to see how Shesol interpret the Court's current intellectual climate. I am less interested in this history as a matter of the development of legal doctrine. There are a thousand and one professors out there who can spin legal docrtines into theoretical webs capable of simultaneously explaining everyithing and nothing. What's needed is less theory and more history. A perfect companion volume to Supreme Power might be entitled Yesteryear's Triumph. It would be a tale with its roots in the 1930s and a jurisprudence set into exile by the threat of court-packing. It would be a history of the Court from the end of the New Deal era until our time, focusing on the legal interest groups whose purpose it is to create legal doctrines telling others how they must live. What do you say, Mr. Shesol? I know you are up to the task. Supreme Power, a triumph, proves it.