by Peter Irons
461 Blackmun dissent in Bowers: 478 U.S. at 199-214.
462 Powell, “I think”: John C. Jeffries, Jr., Lewis F. Powell, Jr., 530.
462 Reagan, “a covenant”: Public Papers of the Presidents, Ronald Reagan, 1987, 1040-1043.
463 Marshall, “I cannot accept”: Harper’s Magazine, July 1987, 17-19.
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464 O’Connor nomination: Abraham, 330-339; Urofsky, 339-345.
465 Scalia nomination: Urofsky, 397-402.
466 Bork rejection: Michael Pertschuk and Wendy Schaetzel, The People Rising; Robert Bork, The Tempting of America.
466 Ginsburg withdrawal: David Savage, Turning Right: The Making of the Rehnquist Court, 176-180.
466 Kennedy nomination: Urofsky, 277-279.
467 Arguments in Webster : Guitton and Irons, Arguments on Abortion, 100-111.
467 Rehnquist opinion in Webster : 492 U.S. 490, 499-522 (1989).
467 O’Connor concurrence in Webster : 492 U.S. at 522-531.
468 Scalia concurrence in Webster : 492 U.S. at 532-537.
468 Blackmun dissent in Webster : 492 U.S. at 537-560.
469 Brennan opinion in Texas: 491 U.S. 397, 399-420 (1989).
469 Scalia, “You can honor it”: Irons, May It Please, 155.
469 Kennedy concurrence in Texas: 491 U.S. at 420-421.
469 Rehnquist dissent in Texas: 491 U.S. at 421-435.
470 Reaction to Texas decision: Irons, Brennan, 161-165; Eichmann, 496 U.S. 310 (1990).
472 O’Connor opinion in Croson: 488 U.S. 469, 476-511 (1989).
473 Marshall dissent in Croson: 488 U.S. at 528-561.
473 Brennan, “The strenuous demand”: Irons, Brennan, 321.
473 Accolades for Brennan: id. at 322-327.
474 Souter nomination: Urofsky, 405-407.
475 Marshall dissent in Payne: 501 U.S. 808, 844-856 (1992).
475 Marshall, “I’m old”: Jane Mayer and Jill Abramson, Strange Justice: The Selling of Clarence Thomas, 14-16.
475 Thomas nomination: id. at 32-61.
476 Wall Street Journal, “All lingering doubt”: id. at 16.
477 Arguments in Planned Parenthood: Guitton and Irons, Arguments, 188-195.
478 “Changed Path for Court? . . .”: New York Times, June 2, 1991, 1.
478 O’Connor, Kennedy, and Souter opinion in Planned Parenthood: 505 U.S. 833, 843-901 (1992).
479 Scalia dissent in Planned Parenthood: 505 U.S. at 979-1002.
479 Blackmun concurrence and dissent in Planned Parenthood: 505 U.S. at 922-943.
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483 Bush, “a fundamental”: Public Papers of the Presidents, George W. Bush, 1992-1993, Vol. 2, 2053.
483 Ginsburg nomination: Urofsky, 189-192.
484 Breyer nomination: Current Biography Yearbook, 1996, 52-56.
485 Buchanan, “There is a religious war”: www.buchanan.org/pa-92-0817-rnc.html.
485 Opinion in Jews for Jesus: 482 U.S. 569 (1987).
486 Opinions in Mergens: 496 U.S. 226 (1990).
487 Opinions in Lamb’s Chapel: 508 U.S. 384 (1993).
487 Opinions in Rosenberger: 515 U.S. 819 (1995).
489 Opinions in Santa Fe: 530 U.S. 290 (2000).
490 Newdow, “I was born”: Brown Alumni Magazine, May/June 2004.
491 Goodwin, “a profession”: Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).
491 Opinions in Newdow: www.supremecourtus.gov/opinions/03pdf/02-1624.pdf.
493 Lee, “Our forefathers”: www.au.org/site/news2?page=newsarticle&id=7076&abbr=cs.
493 Greene, “I was kind of shocked”: ibid.
493 Walker, “You know”: ibid.
494 “sleeps in a tent”: Los Angeles Times, October 13, 2004.
494 Chemerinsky, “I have nothing”: Washington Post, February 21, 2005.
495 Opinions in McCreary County: www.supremecourtus.gov/opinions/04pdf/03-1693.pdf.
495 Opinions in Van Orden: www.supremecourtus.gov/opinions/04pdf/03-1500.pdf.
496 Greene, “My heart”: Louisville Courier-Journal, June 28, 2005.
496 Walker, “It was really”: ibid.
496 Staver, “The battle”: Religious News Service, June 30, 2005.
496 Chemerinsky, “an important victory”: ibid.
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498 Oral arguments in Romer: www.oyez.org/oyez/resource/case/563/resource.
499 Opinions in Romer: 517 U.S. 620 (1996).
501 Oral arguments in Lawrence: www.oyez.org/oyez/resource/case/1542/resource.
501 Opinions in Lawrence: 539 U.S. 558 (2003).
503 Opinions in Cruzan: 497 U.S. 261 (1990).
505 Oral arguments in Glucksberg: www.thebody.com/cid/winter87/html.
505 Oral arguments in Vacco: ibid.
506 Opinions in Glucksberg: 521 U.S. 702 (1997).
507 Kennedy opinion in Gonzales: www.supremecourtus.gov/opinions/1-17-06.
508 Carhart, “It was horrible”: New York Times, April 8, 2000.
509 Oral arguments in Stenberg: www.frtl.org/infanticide/htm.
509 Opinions in Stenberg: 530 U.S. 914 (2000).
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513 Opinions in Bush v. Gore: 531 U.S. 98 (2000).
516 Powell, “I believe race”: www.cnn.com/2003/allpolitics/01/19/powell.race.
516 Rice, “it is important”: ibid.
516 Bush, “My administration”: www.whitehouse.gov/news/releases/2003/01/200301115-7.html.
517 Opinions in Grutter: 539 U.S. 306 (2003).
518 Opinions in Gratz: 539 U.S. 244 (2003).
521 Doumar, “I’m challenging everything”: Peter Irons, War Powers: How the Imperial Presidency Hijacked the Constitution, 256.
521 Fourth Circuit opinion in Hamdi: 316 F.3d 450 (4th Cir. 2003).
522 Opinions in Hamdi: www.supremecourtus.gov/opinions/03pdf/03-6696.pdf.
523 Dunham, “He has always”: Irons, 260.
523 Hamdi, “I am an innocent person”: ibid.
523 Floyd, “the President”: ibid., 261.
524 Opinions in Rasul: www.supremecourtus.gov/opinions/03pdf/03-334.pdf..
525 Rasul, “for the whole”: www.ccr-ny.org/rasul.
EPILOGUE
528 Bush-Kerry debates, “If there were”: www.debates.org/pages/trans2004c.html.
529 Roberts, “finds no support”: Washington Post, July 19, 2005.
529 Rehnquist, “I’m not about”: ibid., July 15, 2005.
530 Miers, “legislating religion or morality”: ibid., October 26, 2005.
530 “disturbing to conservatives”: ibid.
530 Specter, “crash course”: ibid.
530 Alito, “the Constitution”: New York Times, November 15, 2005.
531 Robertson, “a grand slam”: Houston Chronicle, October 31, 2005.
SOURCES FOR FURTHER READING
The literature on the Constitution and the Supreme Court is vast and stil
l expanding. For those readers who have developed from this book a desire to learn more about the issues, cases, and justices I have discussed, the works listed below should help. This is hardly an exhaustive bibliography, but it includes the books I have consulted and cited, and others with more extensive discussion of particular facets of constitutional history. These works vary considerably in their points of view; some authors are conservative, some are liberal, and others compile material or discuss issues from a supposedly “neutral” position. I have organized these suggested readings by topic, and by rough chronology within each category. I have included the original date of each work, but not the place and publisher; these details would clutter the text and are easily available by computer.
The book I have relied upon most heavily for American political and social history, and on which this book is modeled, is Howard Zinn, A People’s History of the United States (1980; HarperPerennial edition, 1990). From the landing of Columbus to the Vietnam War, Zinn lets the people speak of their struggles, their triumphs, and their defeats. There are, of course, many other histories of the American people, but none match Zinn’s eye for the telling fact and ear for the people’s voices.
Histories of the Constitution and the Supreme Court abound. Leonard Levy and Kenneth Karst have edited an excellent four-volume Encyclopedia of the American Constitution (1986). Gustavus Myers pictured the Court as a den of thieves in his muckraking History of the Supreme Court of the United States (1912). In contrast, Charles Warren treated the Court reverentially in The Supreme Court in United States History (1922). Robert G. McCloskey offered a brief, admiring history through the early Warren Court period in The American Supreme Court (1960). Leo Pfeffer took a liberal’s view in This Honorable Court: A History of the United States Supreme Court (1965). Two books published in the Constitution’s bicentennial year were largely celebratory. Archibald Cox skimmed the surface in The Court and the Constitution (1987), and Chief Justice William H. Rehnquist did not reveal much of the Court’s workings in The Supreme Court: How It Is, How It Was (1987). Two more recent books by prolific writers on the Court provide much more detail and analysis. Melvin I. Urofsky cites almost nine hundred Supreme Court decisions in more than 900 pages of A March of Liberty: A Constitutional History of the United States (1988). Urofsky provides excellent suggestions for further reading at the end of each chapter. Bernard Schwartz stays inside the Court’s chambers in A History of the Supreme Court (1993). David M. O’Brien clearly explains the Court’s operations in Storm Center: The Supreme Court in American Politics (4th ed., 1996).
Peter C. Hoffer provides a good, brief overview of the period before the Constitution in Law and People in Colonial America (1992). David H. Flaherty ranges over several topics in his Essays in the History of Early American Law (1969). Edmund S. Morgan discusses the legal systems of the Massachusetts Bay and Plymouth colonies in The Puritan Dilemma: The Story of John Winthrop (1958). The legal problems of religious dissenters in colonial America are discussed in Sanford H. Cobb, The Rise of Religious Liberty in America (1902, reprinted in 1958). Francis P. Prucha has collected and edited useful material in The Indian in American History (1971).
The drafting and ratification of the Constitution has attracted many scholars, and much documentary material is available. I have relied heavily on James Madison’s Notes of Debates in the Federal Convention of 1787 (ed. by Adrienne Koch, 1966). Two good popular accounts of the Constitutional Convention appeared in its bicentennial year: Charles L. Mee, The Genius of the People (1987), and William Peters, A More Perfect Union (1987). Max Farrand utilized a great many original records in The Framing of the Constitution of the United States (1913).
Two studies of the Constitutional Convention provide opposing viewpoints. Charles Beard attributed mercenary motives to the Framers in An Economic Inter pretation of the Constitution (1913). Charles Warren offered a reverential view in The Making of the Constitution (1929). Leonard W. Levy compiled the best of his prodigious work in Essays on the Making of the Constitution (1969; 2d ed., 1987). Levy also wrote a masterful refutation of polemicists such as Robert Bork and Edwin Meese in Original Intent and the Framers’ Constitution (1988). There is much useful documentation in the edited work of Daniel A. Farber and Suzanna Sherry, A History of the American Constitution (1990). Other documentary sources include Wilbourne E. Benton, ed., 1787: The Drafting of the United States Constitution (Vol. II, 1986), and Craig R. Smith, To Form a More Perfect Union: The Ratification of the Constitution and the Bill of Rights, 1787-1791 (1993). There are useful documents in Bernard Schwartz, The Roots of the Bill of Rights (Vol. II, 1980), and Neil H. Cogan, ed., The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (1997).
The Supreme Court’s early years are chronicled in great detail in Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (1971). Maeva Marcus and James R. Perry have collected many useful records in The Documentary History of the Supreme Court of the United States, 1789-1800 (1985). Two volumes of the “Holmes Devise” series on Supreme Court history cover the period of the Marshall Court: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981), and G. Edward White, The Marshall Court and Cultural Change, 1815-1835 (1988).
There are three excellent books on the slavery issue before the Civil War. Louis Filler focused on the political factors in The Crusade Against Slavery, 1830-1860 (1960), and William M. Wiecek addressed the legal issues in The Sources of Antislavery Constitutionalism in America, 1760-1848 (1977). David Potter put the two perspectives together in The Impending Crisis, 1848-1861 (1976). Paul Finkelman has written many works on the law of slavery; he collected documents and court decisions in Slavery in the Courtroom (1985). Philip Van Doren Stern collected many of Lincoln’s speeches and writings about slavery and the Dred Scott case in The Life and Writings of Abraham Lincoln (1940). Don Fehrenbacher produced a masterpiece in The Dred Scott Case: Its Significance in American Law and Politics (1978). He provided an abridged version in Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective (1981). Carl B. Swisher covered the Taney Court period for the Holmes Devise series in The Taney Period (1974).
Scholars have produced several excellent accounts of law and politics during the Reconstruction period. Eric Foner provided a detailed and insightful account in Reconstruction: America’s Unfinished Revolution, 1867-1877 (1988). Charles Fairman offered much detail but little analysis in his contribution to the Holmes Devise series, Reconstruction and Reunion, 1864-1888 (Part I, 1978). Harold M. Hyman did an excellent job of analysis in A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1975).
The last three decades of the nineteenth century have attracted several scholars. Sidney Fine wrote an excellent book in Laissez Faire and the General-Welfare State (1956). Arnold M. Paul combed the law-review literature for Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (1960). Benjamin Twiss provided an early study in Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (1942).
There is, unfortunately, no good account of constitutional history during the first three decades of the twentieth century. The broader histories by Urofsky and Schwartz cover this period, and biographies of Chief Justices Edward White and William Howard Taft (cited below) add some detail. I wrote about law and politics during Franklin Roosevelt’s first administration in The New Deal Lawyers (1981). Joseph Alsop and Turner Catledge offered a journalistic account of Roosevelt’s “court-packing” plan in The 168 Days (1938), and Leonard Baker provided more detail in Back to Back: The Duel Between FDR and the Supreme Court (1967). Robert H. Jackson, Roosevelt’s attorney general and later Supreme Court justice, wrote a partisan’s account in The Struggle for Judicial Supremacy (1941).
We have several good studies by scholars and journalists of the Supreme Court since
World War II. The best include two books by Bernard Schwartz: Superchief (1983), a detailed account of the Warren Court’s deliberations in virtually every significant case decided during this period, and The Ascent of Pragmatism: The Burger Court in Action (1990). Bob Woodward and Scott Armstrong rifled through the Burger Court’s hidden files in The Brethren: Inside the Supreme Court (1979). This book created a furor and remains the best account of the Court’s internal politics. David Savage wrote an excellent book in Turning Right: The Making of the Rehnquist Court (1992). More recently, Edward Lazarus offered a former law clerk’s account of Court politics in Closed Chambers (1998).
We can learn a great deal about constitutional law and politics from books about Supreme Court cases. The list below is just a sampling of the best and most important of these works, presented in chronological order of the cases. Stanley I. Kutler combined law, politics, and economics in Privilege and Creative Destruction: The Charles River Bridge Case (1971). I cited above Don Fehrenbacher’s impressive book (and its abridgment) on the Dred Scott case. Charles Lofgren wrote a good study of Jim Crow laws in The Plessy Case: A Legal-Historical Interpretation (1987). Richard Polenberg produced a fine book on World War I cases in Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (1987). I cited above my book on constitutional litigation during Franklin Roosevelt’s first administration, The New Deal Lawyers (1981). David Manwaring provided a good study of the Gobitis and Barnette cases in Render unto Caesar: The Flag-Salute Controversy (1962). I have written one book on the wartime internment cases and edited another: Justice at War: The Story of the Japanese American Internment Cases (1983) and Justice Delayed: The Record of the Japanese American Internment Cases (1989). The latter book includes a 50-page account of the reopening of the internment cases in the 1980s. Slightly out of order, Maeva Marcus studied the collision of presidential and congressional power in Truman and the Steel Seizure Case (1977).