Overruled--The Long War for Control of the U.S. Supreme Court

October 15, 2014
Explaining why Justice John Roberts' surprising support for the Affordable Care Act remains within the bounds of conservative jurisprudence is the takeoff point for Reason senior editor Root in this exploration of how a 150-year-old political and legal conflict has shaped the country.Where American political life can be divided between progressives and conservatives, the Supreme Court also polarizes around judicial activism versus restraint. As Root notes, one generation's activists often become the next generation's conservatives. Felix Frankfurter, a Franklin Roosevelt appointee to the bench in the 1930s, supported the New Deal, but in a 1962 case, Frankfurter opposed extending the protection of law to voters in a Tennessee voting rights case. Robert Bork, appointed by Ronald Reagan and an idol of conservatives, switched from youthful activism in support of the right to contraception to later restraint on the abortion issue. Seemingly opposites, the older Frankfurter and Bork shared judicial views first systematized by early-20th-century judge Oliver Wendell Holmes. For Holmes, the Supreme Court had no business getting involved in political cases that should be left to the responsibility of legislative majorities and the voters who elect them. As Holmes famously remarked in a letter to a friend in 1920, "If my fellow citizens want to go to Hell I will help them. It's my job." Damon documents how judicial restraint reduced the 14th Amendment's intended protections of citizens' "immunities and privileges" to a matter of contracts. The author also reviews conservative and libertarian efforts on the legal front since the 1980s and provides kudos to the Cato Institute and Institute for Justice for changing the legal agenda. In the last chapter, "Obamacare on Trial," Root follows that contentious battle and unpacks Roberts' surprising conclusions. An intriguing account of judicial and economic policy reflecting controversies within conservatism over civil rights and other issues.

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November 1, 2014

The conflict between judicial activism and judicial restraint has been part of the Supreme Court since its beginning. In this book, Root, senior editor at Reason magazine, takes a fresh look at activism vs. restraint by placing judicial interpretation at the center of the ideological disagreements between libertarians and conservatives that have taken place throughout U.S. history. The author is particularly interested in the impact of the 14th Amendment on post-Civil War America, discussing a string of famous cases, such as Lochner v. New York, that upheld individual liberty rather than state intervention, establishing the concept of "liberty of contract," which dominated judicial interpretation until the New Deal. Root argues that while libertarians and conservatives favor limited government, the groups differ on what it means. Each chapter deals with a legal issue, its history, and related agreements and disagreements of libertarians and conservatives. The segments about gun control and the Affordable Care Act are especially compelling. VERDICT Recommended for large public libraries and academic libraries in which readers are interested in libertarian thought, the Supreme Court, and constitutional interpretation.--Becky Kennedy, Atlanta-Fulton P.L.

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