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  • The Supreme Court: An Essential History
  • H. Robert Baker
The Supreme Court: An Essential History. By Peter Charles Hoffer, William James Hull Hoffer, and N. E. H. Hull (Lawrence, University Press of Kansas, 2007) 491 pp. $34.95

To cover in one volume the history of the U.S. Supreme Court, an institution that has produced a mountain of source data and inspired an intimidating scholarly literature, is a formidable task. This book is exactly what the title states it to be, placing the Court’s noteworthy opinions within their institutional, social, and political contexts. Its treatment of a broad number of themes, including race and gender, is laudable. That it does so elegantly is a testament to how well the authors—a family of scholars—work together.

The authors’ approach is thoroughly historical, informed by neither judicial decision-making theories nor statistical analysis. The narrative [End Page 438] arc is empirical, assessing the Court’s decisions in relation to the other political branches of government and the larger society that it served. Taking a cue from Ackerman, the authors divide the Court’s history into three periods: the Heroic Courts (through 1873), the Classical Courts (through 1941), and the Modern Courts (through 2005).1

Individual chapters cover the tenures of chief justices, and each chapter begins with miniature biographies of the justices added during the tenure in question. If not the most creative way to organize this material, it has the supreme virtue of being both consistent and predictable. Given the brevity of the book, the number of legal topics covered is breathtaking. Whether dealing with advances in private or public law, or statutory interpretation or judicial review, the authors manage a sophisticated and thorough review of Supreme Court jurisprudence. At appropriate junctures, they provide explanations for legal terms that will aid nonspecialists (or aspiring specialists) in understanding the material.

The bulk of the book focuses on jurisprudence, but the narrative, contextual approach saves the book from myopic internalism. For example, confronting the dismal record of Chief Justice Morrison Waite’s Court in enforcing the Civil War Amendments to protect freedpeople in the South, the authors conclude that the Supreme Court “played its part” in a Republican retreat from civil rights enforcement that gave the South back to white supremacist Democrats after the 1876 election (138). In clear and concise language, the book covers the political context of race cases in which the Supreme Court narrowly interpreted the Fourteenth Amendment to restrict Congressional power to protect blacks in the South from violence both public and private. The authors revisit these cases in the section on Brown v. Board of Education, offering both an understanding of seismic shifts in the Court’s jurisprudence and a sense of continuity within the book itself.

Certain of their interpretive choices will raise complaints. Despite the revisionist assault, Marbury v. Madison receives top billing in this book as the case that established judicial supremacy (54–55). Although the authors contextualize this argument, demonstrating that John Marshall was able to assert this awesome power only because he avoided direct confrontation with President Jefferson and his secretary of state James Madison, they leave the question of how judicial supremacy was both established by the Court and accepted by the nation unanswered. To conflate Marshall’s limited claims for judicial review in Marbury with a robust (and modern) theory of judicial supremacy is more than a little Whiggish—perhaps even self-consciously so, since the authors admit in their preface that they “value history precisely because it speaks to our [present] concerns” (viii).2 As their rendering of Marbury makes apparent, [End Page 439] however, presentism has its own pitfalls. It can obscure the complex past by paving too neat a road from landmark to landmark.

This book deserves a large audience, from novices seeking to acquaint themselves with the Supreme Court’s history to legal scholars who want a one-volume reference book in their libraries. The helpful bibliographical essay is as elegantly written as the main text of the book.

H. Robert Baker
Georgia State University

Footnotes

1. Bruce Ackerman, We the People. I. Foundations (Cambridge, Mass., 1991).

2. Gordon S. Wood, “The...

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