Asa Kowals-Rose | Blog for RFILP

These chapters discussed Supreme Court activity from the early nineties through the time the book was written. During this period the Court issued decisions on cases involving prayer in school, sodomy laws, wartime habeas corpus rights, and affirmative action. This period also saw the Court vote to halt the recount in Florida after the 2000 election, thereby putting George W. Bush in the White House.

One interesting issue discussed in these chapters was Scalia’s claim that the Supreme Court had behaved inappropriately in striking down Colorado’s Amendment 2 in the Romer decision. Scalia accused the Court of participating in a “culture war,” rather than simply interpreting the Constitution; he seemed to imply that judicial activism surrounding cultural issues was more improper than judicial activism surrounding plainly political ones. This claim raised two questions in my mind. First, is there any real distinction between cultural and political issues when legislation, like Colorado’s Amendment 2, is passed in response to changing cultural trends? Second, is it actually possible for any Supreme Court decision to abstain from “culture war” when the Court itself is a product of the cultural status quo? I’m curious to see what the class has to say about these questions.

These chapters discussed the Supreme Court’s shift to the right in the post-Warren era. Irons points out that this shift wasn’t immediate; it took nearly twenty years after Earl Warren’s retirement for a conservative majority to solidify under William Rehnquist, a Nixon appointee who Ronald Reagan raised to the position of Chief Justice. During the interim, Warren Burger served as Chief Justice. Despite his conservative views, Burger’s tenure is probably most famous for the 1973 Roe v. Wade decision, generally regarded as a landmark liberal victory. The Burger Court also dealt with several First Amendment and civil rights cases.

One issue I found interesting about this section is the question of the extent to which the Court should reflect the political views of the presidents who appoint its justices. Many argue that the Court should strive to be entirely apolitical, but given the relative impossibility of this, shouldn’t the ability to appoint likeminded justices be considered one of the spoils of electoral victory rather than an abuse of power?

These chapters detailed the history of the Supreme Court from the late 1930s through the 1960s. This era saw the Court deal with several First Amendment cases, as well as important civil rights cases, most notably Brown v. Board of Education. One topic that I found especially interesting was the supposed politicization of the Court with regard to the Brown decision. I agree with the point Irons makes on page 396, where he writes, “The Court has always been a political body. Its historic opinions—in Marbury, in Dred Scott, in Lochner, in West Coast Hotel, in Brown—have all been legislative decisions; they ‘made’ new law to replace old laws.” The contention that certain government institutions are too “political” always seems to be made for political reasons, rather than a genuine concern for the integrity of the institution. It’s important to recognize that the Supreme Court can never be apolitical. Even the strictest adherence to the Constitution is not a rejection of politics, but rather a preference for the political leanings of the founders.

Nitpicking time: From whose ass did Irons pull his World War II death count? On page 363 he writes, “Around the world, some twenty million people—including six million Jews in Europe—perished in the global battle between the Allies and the Axis.” While an exact count is impossible to ascertain, twenty million is an outrageous understatement by any standard. According the National WWII Museum, the war had a global death toll of approximately sixty million, three-quarters of which were civilians. Irons’ number would perhaps be a plausible description of combat deaths, but his explicit mention of Holocaust victims makes it clear that he means to include civilians as well. When non-combatants are included, more than twenty million died in the Soviet Union alone. I cannot fathom how such an egregious factual error would be published in a BuzzFeed article, let alone a history book. I expect this kind of lowballing from contestants on The Price is Right, not Harvard-educated legal scholars.

Irons also glosses over an incredibly significant event in American presidential history. On page 364, he writes that Henry A. Wallace was removed from the Democratic ticket because he “had become a political liability for Roosevelt.” This oversimplifies one of the most outrageous episodes of partisan skullduggery in American history. Henry Wallace was not a political liability in the sense that he was unpopular among the Democratic base or the American public, but rather that he was considered too progressive by a number of Democratic Party elites. This pro-business cabal settled on Harry Truman as an alternate pick for Vice President, fearing that a Wallace Presidency following Roosevelt’s death would be inhospitable to their interests. Going into the 1944 Democratic National Convention, Wallace was favored to stay on the ticket, but the party bosses backing Truman delayed the nomination for Vice President, and used the delay to sway delegates in the latter’s favor. Had this conspiracy not taken place, Wallace would have succeeded Roosevelt in 1945. One can assume that the incredibly significant decisions made under the Truman administration, like the decision to use nuclear weapons against Japan, would have been handled differently by Wallace. It’s also likely that his appointments to the Supreme Court would have been at least somewhat more impactful than Truman’s “Four Horsemen of Mediocrity.”

These chapters discussed the Supreme Court’s activity during the Gilded Age and through the New Deal era. During this time, they ruled on numerous business-related cases. Many of these pitted the rights—those related to the right to property—of businesses against laws meant to ensure the decent livelihoods for working people. Prior to the 1930s, the court embraced laissez-faire ideology and ruled in favor of unrestrained capitalism. These years showed that the Supreme Court, far from being immune to corrupting influence, is often just as corrupt as the rest of the political system. Most of the justices nominated by McKinley, Taft, and Harding had been involved in corporate law, and maintained their allegiance to oligarchs once they had joined the Supreme Court. At the same time, they showed general disregard for the First Amendment rights of speech and assembly, once again putting the rights of money before the rights of people.

Nitpicking time: Look, I don’t think Irons is a bad author; he writes with wit, and does a thorough job when going in-depth on judicial history. However, his willingness to mischaracterize history for brevity’s sake is wearing on me, even if it doesn’t interfere with the main information he discusses. In this week’s chapters, he glosses over key points about the nature of World War I. On page 263, he says, “When German submarines attacked American shipping in the Atlantic, Congress declared war on Germany in April 1917.” This is not inaccurate: Germany’s decision to engage in unrestricted submarine warfare—after a previous agreement not to—was a factor in the United States joining the war effort. However, it omits the discovery of the Zimmermann Telegram, which revealed Germany’s intent to ally with Mexico against the United States. This was a critical factor in the United States’ entry into the war. I was going to overlook this, until I encountered another passage.

On page 264, Irons writes, “Many in United States had good reason to resist appeals to support the King of England in his territorial squabbles with the German Kaiser.” This is an understandably brief summary of the First World War, but it misconstrues the conflict. World War I was essentially a Mexican standoff between the powers of Europe, and while there were several territorial disputes, none of the important ones existed between Germany and Great Britain. While, the latter claimed to enter the war in response to the former’s violation of Belgian territorial neutrality, this is not what is generally understood by “territorial dispute.” Furthermore, someone with Irons’ ability to read historical subtext should be able to read Britain’s claim as a façade. Britain had no great respect for territorial neutrality: she and France occupied parts of Greece during the war, despite the fact the Greeks had not yet entered the conflict on either side. Britain was more concerned with maintaining a balance of power in Europe, as doing so protected its global influence. Germany did, however, have clear territorial disputes with other countries. It had annexed French territory at the end of the Franco-Prussian War in 1871, and the resentment caused by this had made another conflict between France and Germany inevitable. Prior to the war, German leaders also expressed desires to annex Russian territory as a means of stopping Russia from surpassing Germany militarily. Mentioning either of these situations would have more effectively described World War I than “the King of England in his territorial squabbles with the German Kaiser.”

Does any of this matter with regard to the Supreme Court? No. Why did I write three hundred words on it? Because I will use any excuse to bring up European political history for no real purpose.

These Chapters explored the history of the Supreme Court in the second half of the nineteenth century. Much of the court’s work during this period had to do with issues surrounding the American Civil War, as well as business issues during the Gilded Age. I think this era further established that courts—including the Supreme Court—are never immune to politics or personal bias, and often make decisions in accordance with unsavory values rather than the will of the Constitution. I feel that this explains the court’s willingness to apply the protections of the Fourteenth Amendment to corporations, while denying them to black Americans; the judges who made these decisions were products of their racist society, and often had ties to industry. This has lasting consequences: one of the decisions made during this period was in the 1886 case of Santa Clara County v. Southern Pacific Railroad, which established the concept of corporate personhood, and provided precedent for the 2010 Citizens United ruling.

Nitpicking time: Once again, I found a minor passage in which Irons mischaracterizes history. On page 183, he refers to the Battle of Antietam as a “disastrous defeat” for the Union. While the battle was extremely costly—the bloodiest day in American history, in fact—it is wrong to view it as a defeat for the Union. The battle was one of two occasions on which Robert E. Lee marched Confederate troops into Union territory, and on both occasions, he was forced to retreat. Lincoln viewed it as a political victory, and used the battle as an opportunity to issue his Emancipation Proclamation. Lincoln demoted McClellan because of his failure to capitalize on Lee’s retreat, not because the battle itself was lost. This is insignificant with regard to the main issues discussed in the text, but I find it annoying that Irons misconstrues information like this.

These chapters discussed the evolution of the Supreme Court in the late eighteenth and early nineteenth centuries, with a focus on John Marshall’s tenure as Chief Justice. What struck me most about this era is not that certain decisions proved incredibly consequential—this would be expected a legal system that relies on early precedents—but that those decisions were often about seemingly inconsequential issues. Marbury v. Madison is the best example of this. Thanks John Marshall’s decision, a dispute over a judicial appointment came to serve as the basis for judiciary preeminence in the United States.

One entirely insignificant excerpt that caught my attention was Irons’ explanation of political parties in the mid-nineteenth century. On page 120 he writes, “The Federalists changed their name to the Whig Party between 1836 and 1856, when they became the second Republican Party.” This severely mischaracterizes the decline of the Whig Party. Although the Whigs fell apart in 1856, this was due to their failure to nominate a presidential candidate, not because it reformed itself as the Republican Party. The Republican Party was established in 1854 by a coalition that included former Whigs, but was not itself a seamless continuation of the Whig Party. Irons only mentioned this to clear up confusion about party identities, but in doing so he misrepresented the information and created further confusion.