240 [Corporate political advertising case] : FEC v. Wisconsin Right to Life, No. 06-969, slip opinion (U.S. June 25, 2007).
240 [“Millionaire’s Amendment” case] : Davis v. FEC, No. 07-320, slip opinion (U.S. June 26, 2008).
240 [Texas gerrymander case] : League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006).
240 [Roberts-Scalia voting, 2007] : Linda Greenhouse, “In Steps Big and Small, Supreme Court Moved Right,” New York Times, July 1, 2007, pp. 1, 18, figure at p. 18.
240 [Kennedy on hearings “sham”] : Kennedy, “Roberts and Alito Misled Us,” Washington Post, July 30, 2006, pp. B1, B4, quoted at p. B4.
241 [“one clear and focused”] : quoted in Reynolds Holding, “In Defense of Dissents,” Time, vol. 169, no. 9 (February 26, 2007), p. 44.
241 [“it is intolerable”] : Bowles v. Russell, Souter dissent, slip opinion quoted at 1.
241 [“strained and unpersuasive”] : District of Columbia v. Heller, Stevens dissent, slip opinion quoted at 3-4.
241 [“power, not reason”] : Payne v. Tennessee, 501 U.S. 808 (1991), Marshall’s dissent quoted at 844.
241 [“It is not often”] : Linda Greenhouse, “Justices Limit the Use of Race in School Plans for Integration,” New York Times, June 29, 2007, pp. A1, A24 , quoted at p. A24.
241 [“differently composed”] : Gonzales v. Carhart, Ginsburg dissent, slip opinion quoted at 24. The 2000 precedent was Stenberg v. Carhart, 530 U.S. 914 (2000).
241 [“modest judge”] : quoted in Lazarus, p. 24.
241 [Dworkin on Roberts’s “subterfuge”] : Dworkin, “Supreme Court Phalanx,” p. 98.
242 [“faux judicial restraint”] : FEC v. Wisconsin Right to Life, Scalia concurrence, slip opinion quoted at 17 fn. 7.
242 [5-4 decisions, 2008] : Linda Greenhouse, “On Court That Defied Labeling, Kennedy Made the Boldest Mark,” New York Times, June 29, 2008, pp. 1, 18, figure at p. 1.
242 [Baze] : No. 07-5439, slip opinion (U.S. April 16, 2008).
243 [Crawford] : No. 07-21, slip opinion (U.S. April 28, 2008).
243 [Indiana nuns] : Deborah Hastings, “Indiana Nuns Lacking ID Denied at Poll by Fellow Sister,” May 6, 2008, Associated Press article posted on Breitbart.com, http://w w w.breitbart.com/article.php?id=D90GBCNO0 & show_article =1.
243 [“pretty darn conservative”] : quoted in Rosen, “The Dissenter,” p. 52.
243 [“Including myself ”] : ibid., pp. 52-53.
244 [“legal equivalent”] : State Department lawyer David Bowker quoting the words of a colleague, in Michael Isikoff and Stuart Taylor, Jr., “The Gitmo Fallout,” Newsweek, vol. 148, no. 3 ( July 17, 2006), pp. 22-25, quoted at p. 23.
244 [Hamdan] : No. 05-184, slip opinion (U.S. June 26, 2006), Thomas dissent quoted at 1.
245 [“Congress here has spoken”] : quoted in Linda Greenhouse, “Justices Ready to Answer Detainee Rights Questions,” New York Times, December 6, 2007, p. A32.
245 [Davis on show trials] : Ross Tuttle, “Rigged Trials at Gitmo,” Nation, vol. 286, no. 9 (March 10, 2008), pp. 4-6.
245 [Boumediene] : No. 06-1195, slip opinion (U.S. June 12, 2008), opinion of the court quoted at 5.
245 [“ judicial activism”] : ibid., Roberts dissent, slip opinion quoted at 6, 1, respectively.
245 [“at war”] : ibid., Scalia dissent, slip opinion quoted at 2.
246 [“locked up”] : ibid., Souter concurrence, slip opinion quoted at 2.
246 [“inherent executive powers”] : John Yoo, Deputy Assistant Attorney General, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” Memorandum Opinion for the Deputy Counsel to the President, September 25, 2001. http://www.usdoj.gov/ olc/warpowers925.htm .
EPILOGUE-ENDING JUDICIAL SUPREMACY
David Adamany, “Legitimacy, Realigning Elections, and the Supreme Court,” Wisconsin Law Review, vol. 3 (1978), pp. 790-846.
James MacGregor Burns, Leadership (Harper & Row, 1978).
James MacGregor Burns, Transforming Leadership: The New Pursuit of Happiness (Grove/ Atlantic, 2003).
Edward S. Corwin, Court over Constitution: A Study of Judicial Review as an Instrument of Popular Government (Princeton University Press, 1938).
Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, vol. 6 (1957), pp. 279-95.
Neal Devins and Keith E. Whittington, eds., Congress and the Constitution (Duke University Press, 2005).
Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton University Press, 1988).
Daniel Hamilton, ed., “A Symposium on The People Themselves (Kramer),” Chicago-Kent Law Review, vol. 81, no. 3 (2006).
Ronald Kahn and Ken I. Kersch, eds., The Supreme Court and American Political Development (University Press of Kansas, 2006).
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004).
Robert Kuttner, Obama’s Challenge: America’s Economic Crisis and the Power of a Transformative Presidency (Chelsea Green, 2008).
Simon Lazarus, “Repealing the 20th Century,” American Prospect, vol. 18, no. 12 (December 2007), pp. 19-22.
Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, 1995).
Gary L. McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power (Louisiana State University Press, 1988).
Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (Crown, 2006).
J. Mitchell Pickerell, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (Duke University Press, 2004).
Jamin B. Raskin, Overruling Democracy: The Supreme Court vs. The American People (Routledge, 2003).
Jeffrey Rosen, “Supreme Court Inc.,” New York Times Magazine, March 16, 2008, pp. 38-45, 66-71.
Mark Tushnet, “Democracy Versus Judicial Review,” Dissent, vol. 52, no. 2 (Spring 2005), pp. 59-63.
Mark Tushnet, The New Constitutional Order (Princeton University Press, 2003).
Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999).
John R. Vile, The Constitutional Amending Process in American Political Thought (Praeger, 1992).
John R. Vile, Contemporary Questions Surrounding the Constitutional Amending Process (Praeger, 1993).
G. Edward White, “The Constitutional Journey of ‘Marbury v. Madison,’ ” Virginia Law Review, vol. 89, no. 6 (October 2003), pp. 1463-1573.
Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton University Press, 2007).
Norman R. Williams, “The People’s Constitution” (review of Kramer), Stanford Law Review, vol. 57, no. 1 (October 2004), pp. 257-90.
247 [“not just of the past”] : Obama, p. 85.
247 [“incredibly right”] : ibid., pp. 90, 92, 93, 92, 95, respectively.
248 [“how to think ”] : ibid., pp. 89, 90.
248 [“what it means”] : quoted in Stephanie Mencimer, “The Stakes 2008: The Courts,” Washington Monthly, vol. 40, no. 9 (August-September-October 2008), pp. 20-22, quoted at p. 21.
249 [“people on the bench”] : quoted in David G. Savage, “Two Visions of the Supreme Court,” Los Angeles Times, May 19, 2008, p. A8.
250 [“repeal the 20th Century”] : Lazarus.
251 [“at every stage”] : Strum, “Leadership and Equality: A Social Scientist at Work,” in Michael R. Beschloss and Thomas E. Cronin, eds., Essays in Honor of James MacGregor Burns (Prentice-Hall, 1989), pp. 181-205, quoted at p. 183.
252 [“opinions deem’d unsound”] : Marshall to Justice Samuel Chase, letter of January 23, [1805], in Marshall, Papers, Herbert A. Johnson, ed. (University of North Carolina Press, 1974
-2006), vol. 6, pp. 347-48, quoted at p. 347.
255 [“kind of transubstantiation”] : Corwin, p. 68.
257 [“constitutional disputes”] : Whittington, p. 287.
258 [“preeminently a place”] : Anne O’Hare McCormick, “Roosevelt’s View of the Big Job,” New York Times Magazine, September 11, 1932, pp. 1-2, 16, quoted at p. 2.
INDEX
abortion
Akron and
partial-birth
Planned Parenthood and
Roe and, see Roe v. Wade
Webster and
Abraham, Henry
Abrams, Jacob
Abrams v. U.S.
activism, see judicial activism
Adair v. U.S.
Adams, Henry
Adams, John
court-packing by
Marshall appointed by
Sedition Act and
Adams, John Quincy
Adams, Thomas
African Americans:
freed slaves, in Reconstruction
Populists and
Reconstruction Amendments and
see also segregation; slavery
Agricultural Adjustment Act (AAA) (1933)
Akron v. Akron Center for Reproductive Health
Alito, Samuel
appointed to Supreme Court
as member of conservative “phalanx,”
American Bar Association
American Railway Union
Anti-Federalism
antitrust
Sherman Anti-Trust Act
Arthur, Chester A.
Articles of Confederation
Audacity of Hope, The (Obama)
Babbitt, Bruce
Bailey v. Drexel Furniture
Baker, Howard
Baker v. Carr
Baldwin, Henry
Baldwin, Luther
Bank of the United States
Barbour, Philip
Bates, Edward
Baze v. Rees
Beard, Charles
Bickel, Alexander
Bill of Rights
nationalization of
in “preferred position,”
birth control
Black, Hugo
absolutism of
appointed to Supreme Court
Bill of Rights and
civil liberties and
Frankfurter and
as leader of liberal activist bloc
Japanese-American cases and
Rosenbergs and
Black Monday
Blackmun, Harry A.
appointed to Supreme Court
Roe and
Blair, John
Blatchford, Samuel
Bopp, James, Jr.
Bork, Robert
Boumediene, Lakhdar
Boumediene v. Bush
Bradley, Joseph P.
appointed to Supreme Court
Civil Rights Cases and
as member of 1876 electoral commission
Munn and
Slaughterhouse and
Brandeis, Louis D.
appointed to Supreme Court
as dissenter
free speech cases and
as legal modernizer
Breckinridge, John
Brennan, William
appointed to Supreme Court
Constitution as viewed by
Warren Court activism and
Brewer, David J.
Debs case and
Northern Securities and
Social Darwinism of
substantive due process and
Breyer, Stephen G.
British parliamentary system
Brown, David
Brown, Henry B.
Brownell, Herbert
Brown v. Board of Education
Brutus
Bryan, William Jennings
Buchanan, James Dred Scott and
Burger, Warren
appointed chief justice
Roe and
Burton, Harold
Bush, George H. W.
Supreme Court appointments by
Bush, George W.
presidential power and
Supreme Court appointments by
in 2000 election
Bush v. Gore
Butler, Pierce
Byrnes, James F.
California
Edwards
Japanese Americans in
Whitney
Campbell, John
Cardozo, Benjamin
Carnegie, Andrew
Carswell, G. Harrold
Carter, Jimmy
Carter Coal Company
Carter v. Carter Coal Co.
Catron, John
Charles River Bridge v. Warren Bridge
Chase, Salmon P.
appointed chief justice
and legal tender
Reconstruction and
Chase, Samuel
appointed to Supreme Court
impeachment of
Sedition Act and
checks and balances in Constitution
Cheney, Dick
Cherokee nation
Chicago, Milwaukee & St. Paul R.R. v. Minnesota
citizenship:
loyalty and
national v. state
City of Boerne v. Flores
City of Richmond v. Croson
civil liberties
Stone Court and
Warren Court and
see also constitutional amendments; press, freedom of; religious liberty; speech, freedom of; voting rights
civil rights, see African Americans; segregation
Civil Rights Act (1866)
Civil Rights Act (1875)
Civil Rights Cases
civil rights movement
Civil War
attitudes of justices toward
Ex parte Merryman
Lincoln on presidential war powers
Supreme Court and financing of
Supreme Court and Lincoln’s war powers in
Clark, Tom
Clay, Henry
Clayton Act (1914)
Clement, Paul
Cleveland, Grover
Supreme Court appointments by
Clifford, Nathan
Clinton, Bill:
Supreme Court appointments by
coal industry
Cohens v. Virginia
Colegrove v. Green
Colfax massacre
commerce clause
Common Law, The (Holmes)
communism
Compromise of 1850,
Congress:
authority over slavery of
authority over Supreme Court of
authority over states of
checks and balances and
impeachment of justices by
judicial review of acts of
Judiciary Act of 1789 and
Judiciary Act of 1801 and
Lincoln’s war powers and
majority rule and
and numbers of justices
as part of three-horse team of government
political accountability of
proposals to limit Supreme Court’s power and
Reconstruction Amendments and
Supreme Court’s authority over 132-33
Supreme Court as third house of
Conkling, Roscoe
Constitution, U.S.:
amending process of
Article III of
checks and balances in
Framers’ intentions in
interpretation of, see constitutional
interpretation; judicial activism; judicial
restraint; judicial review; judicial
supremacy
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 34