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Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloo Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloody age of slavery, the Civil War, and Reconstruction to its central role in today's blockbuster legal battles over gay rights, gun control, and health care reform. It's a conflict that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows. Judicial deference is not only a touchstone of the Progressive left, for example, it is also a philosophy adopted by many members of the modern right. Today's growing camp of libertarians, however, has no patience with judicial restraint and little use for majority rule. They want the courts and judges to police the other branches of government, and expect Justices to strike down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom. Overruled is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society, a fundamental debate that goes to the very heart of our constitutional system.


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Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloo Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloody age of slavery, the Civil War, and Reconstruction to its central role in today's blockbuster legal battles over gay rights, gun control, and health care reform. It's a conflict that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows. Judicial deference is not only a touchstone of the Progressive left, for example, it is also a philosophy adopted by many members of the modern right. Today's growing camp of libertarians, however, has no patience with judicial restraint and little use for majority rule. They want the courts and judges to police the other branches of government, and expect Justices to strike down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom. Overruled is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society, a fundamental debate that goes to the very heart of our constitutional system.

30 review for Overruled: The Long War for Control of the U.S. Supreme Court

  1. 5 out of 5

    Jim Angstadt

    What is the meaning of 'judicial restraint' and 'judicial activism'? Is that code for conservative or liberal or progressive? Has the US Supreme Court been consistent in it's restraint or activism? To what extent does the current Supreme Court rely on the rulings of past Courts? How should we balance the ideals of individual liberty against the legal and cultural traditions? What is the proper role of the Supreme Court, versus Congress and the Constitution? These questions, and others, are partially a What is the meaning of 'judicial restraint' and 'judicial activism'? Is that code for conservative or liberal or progressive? Has the US Supreme Court been consistent in it's restraint or activism? To what extent does the current Supreme Court rely on the rulings of past Courts? How should we balance the ideals of individual liberty against the legal and cultural traditions? What is the proper role of the Supreme Court, versus Congress and the Constitution? These questions, and others, are partially addressed. Author Damon Root describes past Supreme Court cases that bear on the liberties, restricts and opportunities we have today. Warning: this is not an easy read, especially if one views the world in a digital, black and white, on or off sort of way. There are a lot of shades of gray here. One nagging question. Support for judicial restraint is based on the ability of voters to "vote the bums out" and replace them with representatives that will do the bidding of the people. Has this been compromised, and to what extent, by "big money" in politics? Notes while reading: Introduction - The Long War - "Can the federal government make you eat your fruits and vegetables?" - Kagan said: "sounds like a dumb law," but that does not make it an unconstitutional one. - Judicial restraint. - Justice Oliver Wendell Holmes Jr.: "The right of the majority to embody their opinions in law." - Chief Justice Roberts supports Obamacare. Why? Judicial restraint citing Blodgett v. Holden. - "... our plain duty is to adopt which will save the Act." - Justice Stephen Field, advocate of property rights and individual liberty. - "Liberty of contract", every individual's "right to pursue a lawful and necessary calling" 1. The Right of Free Labor - 14th amendment, 1868 - Slaughter-House Cases guts free labor. Supreme Court showed judicial restraint. States can do as they wish. - 14th amendment context: -- rise of anti-slavery, -- free labor principals, -- outrages after the Civil War known as Black Codes - 14th amendment text: -- citizenship to all born here, -- Privileges or Immunities Clause, -- Due Process Clause, -- Equal Protection Clause. - But, what are the privileges and immunities (or rights and liberties) ? -- Corfield v. Coryell, 1823, specifies rights and liberties. -- Others say "... a dangerous infringement upon the rights and independence of the states." -- In Powell v. Pennsylvania Field, in dissent, stated that "the purpose of the government regulatory power ... was to protect 'the health of the people' not to use flimsy pretexts in order to prevent the manufacture or sale 'of a healthy and nutritious article of food.'" -- 1877 Munn v. Illinois, re Granger Laws, went too far trying to protect farmers. -- Ah Kow v. Nunan, 1876; required all male prisoners to have hair cut short. "queue ordinance" in San Francisco. -- Allgeyer v. Louisiana. Right to buy out-of-state insurance. 2. The Devil and Oliver Wendell Holmes - page 45. "If Justice Stephen Field was the Supreme Court's first great champion of judicial action in the cause of limited government and individual rights, then Justice Oliver Wendell Holmes was his nemesis." OWH, SCOTUS 1902-1932. - Lochner v. New York, 1905, on the Bakeshop Act of 1895. Not a health law; interferes with Liberty of Contract. OWH disagrees. - Progressives favor majority rule; later will change. - WWI, Espionage and Sedition Acts, restraint of Liberty. - Meyer v. Nebraska, 1917?. Teaching bible in German. Today this "is largely remembered as an early victory for civil liberty against mob rule ..." Also, economic liberty. OWH dissent illustrated "how judicial restraint could allow state-sanctioned discrimination to thrive." - Buchanan v. Warley, 1917. Segregating residential housing blocks by race. - Lawyer Moorfield Storey and NAACP win. - OWH wrote, but did not publish, a dissent; later OWH voted with the majority. - Schecher Poultry v. U.S., 1935. Another slaughter-house. - death blow for NIRA (National Industrial Recovery Act), an FDR favorite. - FDR response, aka "living constitutionalism" - U.S. v. Butler, 1936 nullified Ag Adjustment Act of 1933. - FDR attempts court-packing; fails. - Nebbia v. New York, 1934. Upheld NY regulation of dairy prices. "That ruling was a paragon of judicial deference and a taste of things to come." - West Coast Co. v. Parrish, 1937. The court "upheld a Washington state minimum wage law for women under the principal of judicial restraint. The constitution does not speak of freedom of contract, ..." IE, liberty of contract was now dead. - "... it was one of the most striking turnarounds in legal history. In less than a decade, the Supreme Court has not only rendered liberty of contract a dead letter, it had embraced a sweeping form of judicial deference toward state and federal legislation while also greatly expanding congressional power ..." - OWH vision is reality. 3. Robert Bork's America - page 77. "Intellectually powerfull advocate of judicial restraint." - At odds with Griswell v. Conn re birth control of married couples. - At odds with Roe v. Wade - "Also rejected ... conservative activism of Lochner v. NY - page 80. "... in the half century that fell between ... FDR and RR, the American left had learned to stop worrying and to love judicial activism." - Footnote Four, 1938, US v. Carolene Products Co., inter-state, filled-milk, scotus did not reject the ban; ie judicial restraint using 'rational basis test', which is the most deferential of the standards. - 1948, Goespert v. Cleary, another rational basis. - 1954, Williamson v. Lee Optical Inc.. another rational basis. - 1963, Ferguson v. Skrupa, relied on Lee Optical. - page 83, "... near total submission to lawmakers on the economic front ...". - Testing action in other realms, using Footnote Four. - 1954, Brown v. BoE of Topeka Kansas. - "Backlash ... denouncing 'judicial tyranny'". eg: Judge Learned Hand, Felix Frankfurter (OWH influence). - page 90. progressive restraint vs. liberal activism - Reproductive privacy. Birth control advocates rebuffed: -- 1943 Tileston v. Ullman -- 1961 Poe v. Ullman - page 91. Changed 1965 Griswold v. Conn.. Fractured ruling. - Bill of Rights has "Penumbras and Emanations" vs. Unenumerated rights. - Justice Black strongly supported enumerated rights and opposed the opposite. - Bork: "Neutral Principles and Some First Amendment Problems" -- "To hold otherwise would be to place the subjective view of the judge on a higher plane that the wishes of the people as expressed via their elected representatives." 4. Libertarians vs. Conservatives - Federalist Society founded 1983. "... the most influential conservative legal organization in American history." - a big tent, wide range of members. - sprang from political backlash of 1960s and 70s. -- Founders: Steven Calabres, Lee Literman, David McIntosh -- No official stand on any public policy - Ed Meese, Regan AG, pushed judicial restraints. - Bork contribution, speeches, legal positions, "The Tempting of America" -- individual liberty vs. majority rule - libertarians: individual liberty comes first, not majority rule. - UCSD Prof. Bernard Seigan: -- "Land Use Without Zoning", 1972 -- "Economic Liberties and the Constitution", 1980 - Path of OWH -> Bork (Majoritarianism) - Path of Stephan Field -> Siegan (libertarianism) - Stephen Macedo, "The New Right vs. The constitution" -- rights as islands surrounded by a sea of government powers, -- vs. gov powers are limited and specified and rendered as islands surrounded by a sea of individual rights. - Cato Institute -- Roger Pilon -- Agenda: Limited gov and free-market economy (libertarianism) - Richard Epstein, "Takings: Private Property and the Power of Eminent Domain" - Clarence Thomas has some libertarian tendencies 5. Litigating For Liberty - "Hettinger v. US", April 2012, milk price-fixing in CA and AZ. Rational basis. - Institute for Justice, IJ, civil liberties law firm, founded 1991 - William H. "Chip" Meller. -- While at PRI (Pacific Research Inst.), founded Ctr for Applied Jurisprudence to organize needed info for legal challenges to individual liberty -- Founded IJ -- Strike at root of problem: Slaughter-House to re-affirm 14th amendment. -- Economic liberty as a civil rights issue. -- Worked under Clarence Thomas with Clint Bolick. -- Find the right cases to chip away at restrictions to economic liberty. -- Need to find "Sympathetic Clients, Outrageous Facts, Evil Villains". -- Occupational licensing. - The Little Pink House in New London, Conn. -- Owned by Susette Kelo -- Pfizer wanted a new research center in Fort Trumbull part of town -- eminent domain to get properties, citing better economy. -- Conn. Supreme Court agreed with city, citing judicial deference. -- scotus also agreed in 5 to 4 ruling. -- "Today, Kelo serves as a rallying cry for the libertarian legal movement, and object lesson for judges, lawyers, and politicians about the dangers of judicial deference. And that lesson has not been lost on the American right." 6. Guns, Lawyers, and Butchers - District of Comumbia v. Heller, 2008, scotus "struct down ... D.C.'s handgun ban." - denounced by Judge Wilkinson of US Court of Appeals as judicial activism. - ... it was not a conservative case -- it was a libertarian case. - Clark Neily and Steve Simpson discuss the Second Amendment. - McDonald v. Chicago, gun ban. - fought on two principals: Privileges and Immunities Clause, or Due Process Clause. - scotus invalidates gun ban; 4 cited Due Process, 1 cited Privileges and Immunities. - But "... Privileges and Immunities was not restored, nor was - Slaughter-house wiped from the books." 7. Obamacare On Trial - After 3 days of trial, Chief Justice Roberts summarizes the results: -- "... the national government possesses only those limited powers the Constitution assigns." -- Does congress possess those powers? Congress says so. -- Re the Commerce Clause, Congress does not have those powers. "Congress before has never attempted to use the commerce power to order individuals not engaged in commerce to buy an unwanted product." -- The Governments second argument was "that the mandate may be upheld under Congress' power to lay and collect taxes." -- "Under that theory, the mandate makes going without insurance just another thing the government taxes like buying gasoline or earning income ...". -- "under our precedent, if there are two possible interpretations of a statue and one of the interpretations violates the Constitution, the courts should adopt the interpretation that allows the statute to be upheld." -- Roberts quotes OWH: "As between two possible interpretations of a statute, by one of which it would be unconstitutional and the other valid, our plain duty is to adopt that which will save the Act." Epilogue - Although scotus had shown judicial deference with Obamacare, it had shown activism in other cases. - DC v. Heller "... recognized the Second Amendment as a core individual right ...". A libertarian win. - McDonald v. Chicago "applied the Second Amendment right to keep and bear arms...". - Libertarian lawyers at IJ are building momentum.

  2. 4 out of 5

    Chris

    A really good book that anyone interested in the current US Supreme Court should take a look at. I got this book unaware that the author, Damon Root, works for reason.com, which is a libertarian blog affiliated with Reason magazine. However, that quickly became apparent as he tries to assign libertarian views and tendencies to various historical Supreme Court justices from the past 150 years. This seems to be a spurious enterprise, akin to reading about the early Christians and proclaiming that A really good book that anyone interested in the current US Supreme Court should take a look at. I got this book unaware that the author, Damon Root, works for reason.com, which is a libertarian blog affiliated with Reason magazine. However, that quickly became apparent as he tries to assign libertarian views and tendencies to various historical Supreme Court justices from the past 150 years. This seems to be a spurious enterprise, akin to reading about the early Christians and proclaiming that they were communists, or reading about some historical figure and claiming him for your cause. Nevertheless, the book goes over a century of cases and analyzes them in light of their reasoning. A great refresher for those who went to law school and took Constitutional law, or those that didn’t and want to be educated on how the US Supreme Court rules. The major axis of debate is this book is between judicial restraint and judicial activism. Judicial restraint says that when a legislature passes a law by otherwise democratic means, the judiciary should defer to the legislature and let the law stand. In contrast, Judicial activism has it that the Supreme Court stands as the last refuge for insular and persecuted minorities and individuals, or those whose constitutional rights (or natural rights), are being violated by laws from the Majority, and that the Supreme Court can act as an apolitical bulwark against the tides of politics and against a legislature seeking to increase its power. Depending on your social philosophy, whether liberal progressive, or republican conservative or libertarian loner-rebel, you can deploy arguments from either judicial activism or judicial restraint to suit your argument on what the Supreme Court should decide. Add into this mix the debates on federal centralized powers versus states rights, and this adds another dimension on how you think the Supreme Court should rule. Add into this mix the debates on equal protection under the law, and procedural and substantive due process, and this adds another dimension of how you think the Supreme Court should rule. Judicial restraint vs. Judicial activism; federal power vs. states rights; equal protection, due process (procedural and substantive). So far, it's pretty complex and no matter what conclusion you want the Court to arrive at, you have plenty of arguments to make. Now add in whether you believe in constitutional “originalism” - whether we should apply the Constitution exactly as we think the framers drafted it, or whether you believe that the Constitution is a “living document”, which should grow and adapt to social circumstances 200 years advanced from 1789. Add this to the mix and this adds another dimension on how you think the Supreme Court should rule. Does the Constitution consist of certain enumerated rights, beyond which nothing is constitutionally protected? For example, when you consider the individual rights preserved in the Bill of Rights, do these amount to some certain right to “individual privacy”, even though that phrase is not IN the Constitution’s text? What is involved in that right to privacy? Does it include the right to an abortion? Or the right to die? Or the right to healthcare? Or the right to be free from governmentally-mandated healthcare? Because all these methods of argumentation listed above exist, and are all probably valid and applicable to any argument on governmental power to legislate, it is very difficult for me to escape the conclusion that much jurisprudence can be based on sophistry. And what is not based on sophistry, can be aimed at the Supreme Court making policy decisions for the America that they might want to create, rather than legal arguments based on the Constitution itself, and the 200+ years of case law as precedence, require them to do. In the end, I am not sure where I fall on the above views (judicial restraint, activism, state v federal., etc.,) , but this book certainly prompted a deeper and more theoretical and philosophical investigation into Supreme Court cases, which is sorely lacking in those not trained in Constitutional law but who nevertheless have strongly held views (but not legal arguments) for how the Supreme Court should rule.

  3. 5 out of 5

    Robert

    A good amount of legal history is here, outlining the deference/restraint strain of judicial purpose versus the engagement strain. It was interesting to learn how progressive and conservative justices and politicians switched back and forth through the years. How the progressive movement pushed for judicial deference in the early 1900s and New Deal era, then the liberal movement pushed for judicial engagement during the 1960s - 1980s, and in more recent years how deference has become preferred. A good amount of legal history is here, outlining the deference/restraint strain of judicial purpose versus the engagement strain. It was interesting to learn how progressive and conservative justices and politicians switched back and forth through the years. How the progressive movement pushed for judicial deference in the early 1900s and New Deal era, then the liberal movement pushed for judicial engagement during the 1960s - 1980s, and in more recent years how deference has become preferred. The conservative movement has, since the 1970s and 1970s, become strong proponents for deference, thanks to the influence, in part, of failed SCOTUS nominee Robert Bork. It's interesting to read how Ted Kennedy's "Robert Bork's America" speech feels weirdly out of place with 2010s progressive judicial approach. The best of the book was when Damon Root narrated the judicial history before modern times (discussing Slaughter-house, Oliver Wendall Holmes, the New Deal, Justices Brennan and Frankfurter, Lochner, etc). What seemed superfluous was Root's discussion of the leading libertarian public interest law firms: Institute for Justice, Pacific Legal Foundation, Cato Institutes Center for Constitutional Studies. I'm familiar with all of those firms, and the discussion, to me, sounded like Root was glorifying their work (in a book that, while clear in it's biases, did a decent job of not overly glorifying or unfairly demonizing). Now, this book was not written just for me, but for a general audience. It's clear, well written, and fast paced. So there are likely plenty of people who have never heard of Cato, or IJ. If that's the case, then those sections may not seem out of place. Overall, a read well worth your time.

  4. 5 out of 5

    Andrew Willis

    I'm not fully on board with the author's attack on judicial restraint, nor do I agree with his take on certain Supreme Court decisions, but this was a fantastic read. It's not often you find a book on difficult legal doctrines written with so much lucidity and clarity. I was (and in some sense, still am) very skeptical about substantive due process, but the author argues his case very persuasively.

  5. 5 out of 5

    Thomas Cannan

    Great read for amateur legal buffs Great history of the supreme court that doesn't get bogged down in legal jargon. Great libertarian view that points out the flaws and hypocrisy of liberal and conservative legal stances throughout history. What i learned: FDR was an authoritarian villain and really hated the SC

  6. 4 out of 5

    Emily Bragg

    ends rather abruptly, and a good chunk of it is destined to be dated really quickly, but it was interesting!

  7. 4 out of 5

    Johnathon

    Excellent work examining the origins of 'judicial restraint', in which judges choose to defer to legislatures over the laws they right, and 'judicial activism', in which judges rule if laws actually follow the Constitution. Root gives a detailed account pointing out how the 14th amendment started this debate when it stated that the Bill of Rights must be followed by the states as well as the federal government and how it's been misinterpreted ever since. Some of the most important rulings by the Excellent work examining the origins of 'judicial restraint', in which judges choose to defer to legislatures over the laws they right, and 'judicial activism', in which judges rule if laws actually follow the Constitution. Root gives a detailed account pointing out how the 14th amendment started this debate when it stated that the Bill of Rights must be followed by the states as well as the federal government and how it's been misinterpreted ever since. Some of the most important rulings by the Supreme Court, from Brown vs. the Board of Education (which struck down school segregation) to DC vs. Heller (which upheld the 2nd amendment right to own firearms), were in fact judicial activism in that they struck down laws that violated the constitution. Root also shows how judicial restraint popularity tends to be on who is in power, i.e. the Democrats loved it when it held up New Deal laws but Republicans did when it would have stopped Roe v. Wade. Overall, an example read that makes a convincing argument that it is the Supreme Court's job as a co-equal branch of the federal government to be 'active' in it's rulings, and strike down laws that violate the Constitution.

  8. 4 out of 5

    Jeff Raymond

    As someone who has been reading Damon Root's work for some time, I was excited for his take on the Supreme Court since I heard about it. This is a good primer and nice refresher about some of the leading conservative and libertarian legal battles that have hit the Supreme Court over the years. The good of the book is that it does delve into the arguments and opinions to give a broader sense of where the justices sat on the issues, and I learned a lot from some of those. as someone who tends to re As someone who has been reading Damon Root's work for some time, I was excited for his take on the Supreme Court since I heard about it. This is a good primer and nice refresher about some of the leading conservative and libertarian legal battles that have hit the Supreme Court over the years. The good of the book is that it does delve into the arguments and opinions to give a broader sense of where the justices sat on the issues, and I learned a lot from some of those. as someone who tends to read Supreme Court rulings for fun on occasion, I got a lot from that. If I have a complaint, I wish it was longer. More analysis, more cases. It's not meant to be that detailed, but it has me thinking about finding another book that does a deeper dive. Overall, though, a solid read. Worth it for Court watchers and political junkies alike.

  9. 5 out of 5

    Larry

    A fantastic, informative read. Fantastical in the apparent backwards logic often used to justify Supreme Court cases. The "checks and balances" we learned about on Schoolhouse Rock don't always work out the way they may have been intended. Informative by highlighting landmark cases that continue to form the basis for judicial policy decades and decades later. Highly recommended; it has me very interested in learning more.

  10. 4 out of 5

    Heidi

    Even though the subject may sound dry to some, this is a really interesting book. It breaks down some of today's issues, the Constitution and a bit of politics by using real issues and cases to teach history in a pretty personal way.

  11. 5 out of 5

    Nathan Jaschob

  12. 4 out of 5

    Nik Green

  13. 5 out of 5

    Alex Macd

  14. 5 out of 5

    Jack M McKinley

  15. 4 out of 5

    Derryn Shaw

  16. 4 out of 5

    Bruce

  17. 4 out of 5

    Adam Kirkton

  18. 4 out of 5

    Mike Garrett

  19. 5 out of 5

    Kmc

  20. 4 out of 5

    Joshua James

  21. 5 out of 5

    Matthew

  22. 4 out of 5

    Stcook

  23. 5 out of 5

    Tyler L.

  24. 5 out of 5

    Dave Ellis

  25. 4 out of 5

    Dan Hactor

  26. 4 out of 5

    Paul

  27. 5 out of 5

    Matthew Hines

  28. 5 out of 5

    Jerry H Robinson

  29. 5 out of 5

    John Maniscalco

  30. 5 out of 5

    Tom Sheffield

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