A People's History of the Supreme Court.

A People's History of the
Supreme Court
Peter Irons
Penguin Putnam, Inc.
375 Hudson St.
New York, NY 10014
542pp., $15.95

This "people's history" provides a vigorous and entertaining retelling of the history of the Supreme Court. The author, Peter Irons, a political scientist and civil liberties litigator, has a sharply defined perspective that largely tracks the views of liberal justices such as William Brennan Jr. and Thurgood Marshall. He does not shrink from passing judgment on the past: "Without a moral compass," he says, "historians risk becoming lost in an intellectual desert, beguiled by the mirage of `objectivity.'"

In A People's History of the Supreme Court, events are judged good if they furthered the liberal agenda on civil rights, economic regulation, and civil liberties; bad if they opposed it; and irrelevant otherwise. Not all readers will share Irons's perspective, but those who do or who are willing to suspend disbelief will surely be drawn to this vivid rendering of the Court's history.

Irons's iconoclastic portrait of John Marshall is typical. Distrusting Marshall's affinity for commercial and financial interests, Irons seemingly finds little to admire in Marshall's work. Irons says that McCulluch v. Maryland, a milestone in the development of national power, "read into the Constitution words the framers never employed, and intentions that they never stated." Perhaps the decision attracts Irons's ire because it upheld the power of Congress to charter a national bank, which progressives might see as a tool of the wealthy. He also faults Marshall for holding that the Bill of Rights (before the Fourteenth Amendment) did not apply to the states, never mentioning that the history is crystal clear in support of Marshall.

Perhaps most unforgivably, Marshall was not an abolitionist. He held that although the slave trade was immoral and illegal under U.S. law, it did not violate international law at the time. This holding, Irons says, "strips the mantle of `statesman' from Marshall's shoulders." As for Marbury v. Madison, the case that established the Court's role as a guardian of the Constitution, Marshall's opinion is "best understood not as a legal opinion but as a political act."

Indeed, as is not unusual among political scientists, Irons emphasizes political forces and devotes little attention to legal reasoning or constitutional theory. The Court, he says, "has always been a political body," and its "historic opinions ... have all been legislative decisions; they made `new' law to replace old laws." This is "legal realism" at its brashest, focusing entirely on the justices' policy preferences at the expense of legal reasoning.

Although the book may shortchange legal doctrine, it shines in other areas. Irons shows convincingly how the Court has responded to great shifts in American society and to society's struggles over economic and racial issues. It was not solely because of improved legal analysis that the result in Brown v. Board of Education was different from the result in Plessy v. Ferguson. Legal reasoning makes a difference, but it cannot by itself account for such a fundamental change in approach.

Irons also does a marvelous job of providing the stories behind some of the Court's great decisions, with wonderful portrayals of the key figures in cases from Dred Scott to Bowers v. Hardwick. He is particularly effective in telling the story behind the Japanese internment cases during World War II, an injustice that Irons did much to expose. The racist sentiments and deliberate lies of key government officials help make this one of the most sordid episodes in U.S. legal history. It is in no small part due to Irons's prior efforts that the government has finally officially acknowledged its wrongs. While researching an earlier book, Irons discovered damning evidence of the government's misconduct and organized the legal effort to clear the names of people who had been prosecuted for violating relocation-related orders.

For trial lawyers, the most important lesson of the book is its reminder that judicial opinions are not issued in a vacuum. They arise in concrete cases, usually involving ordinary people and their lawyers. A Supreme Court decision is the culmination of the litigation process, not a decree issued from heaven. Without the lawyers who were willing to litigate on behalf of their clients' rights, often against the odds, constitutional law as we know it today would not exist.

Daniel A. Farber is McKnight Presidential Professor of Public Law at the University of Minnesota Law School.