The Supreme Court's Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence.

By Frank J. Scaturro. Contributions in Legal Studies, No. 91. (Westport, Conn., and London: Greenwood Press, 2000. Pp. xii, 305. $69.50, ISBN 0-313-31105-6.)

Law-and-society boundary disputes tend to involve many social scientists and law academics but few legal historians. Like Shakespeare's Polonius, many historians of law assume that history and law constitute a "Scene individable or poem unlimited"--a scene that, like life, mingles tragedy, comedy, and history. Rephrasing Shakespeare, federal District Judge Lynn N. Hughes, responding recently to U.S. Courts of Appeals Judge Alex Kozinski's barbed question, "Who Gives a Hoot About Legal Scholarship?" asserted that "Law is inter-disciplinary. Law does not arise, and it is not applied, in a vacuum." "Scholarship is relevant when it marshals, with clarity if not grace, the materials of law and of the life it reflects," he continued. "Understanding in law requires Constitution and statute, text and context, history and economics, and yes, a touch of the poet" (Houston Law Review, 37 [Summer 2000], pp. 323, 328).

With which commendable attitude the author of The Supreme Court's Retreat from Reconstruction professes agreement. Scaturro's undergraduate passion for Civil War history led him, while a Park Service officer, to write President Grant Reconsidered (Lanham, Md., 1998), followed by law school and private practice. In his new book, now-lawyer Scaturro claims possession of a historian's sensitivity to context as well as texts. "There is more overlap between history and law than initially meets the eye," Scaturro writes; therefore, "the legal analysis of this study is inseparable from the broader historical framework" (p. ix). But, he adds, "Whatever its value to historians, this study's ultimate analysis and conclusions focus on matters of constitutional law, with historical observations playing a subordinate role" (p. x).

Indeed. Although this book ultimately becomes more a "law office history" than an interdisciplinary analysis (to this reviewer's disappointment), it does offer some value to historians. Scaturro's second chapter, for example, briefly but usefully tours familiar Reconstruction events and historiography. But, curiously for a Grant biographer, Scaturro's brief discussion of Lincoln's 1863 decision for military emancipation and enlistment of African American soldiers (p. 7) ignores the central contextual fact that Union soldiers, then already "reconstructing" large areas of the South, were emancipation's only relevant implementing institution. And, strangely for a lawyer, Scaturro's treatment of the globally unique 1866 Civil Rights Act scarcely examines its framers' resort to the courts for its implementation.

Earlier in the book Scaturro referred to the Lincoln Republicans' flounderings in the face of a substantially restaffed Supreme Court that, by the early 1870s, became "a central obstacle to the continuation of a process" on behalf of the freedmen (p. x). By "process," however, does Scaturro mean to imply that the Thirteenth Amendment's champions in 1865 foresaw the need for the Civil Rights Act, the Fourteenth and Fifteenth Amendments, military Reconstruction, and anti-KKK Enforcement Acts? Tests supplied by a devotion to context suggest that, with respect to the Court, such foresight was improbable. Scaturro himself notes that, through the late 1860s, the Court's justices "deferred to congressional plans for the South, usually by finding no jurisdiction" (p. 19). Then, in the 1870s, the justices' attitudes abruptly changed. So profound were the results of their shift, Scaturro asserts, that it is doubtful whether "political leaders had a meaningful chance to perpetuate Reconstruction given the Supreme Court of the late nineteenth century" (p. x).

Maybe. But as historians Michael Kent Curtis, Stanley I. Kutler, Patricia Allan Lucie, and others suggested years ago (and as reconsidered very recently by Pamela Brandwein and Robert M. Goldman), in terms of policy clout the Supreme Court of the 1870s and 1880s was still only inching toward its later prowess. Perhaps the conclusion of such historians that late-nineteenth-century political efforts in support of legal equality remained worthwhile is less obtuse than Scaturro perceives--a conclusion that may also have been reached by the shrinking but still hopeful remnant of equal rights Republicans 125 years ago.

Whatever the merits of Scaturro's unkind judgments, he fails to provide us misguided historians with ways the better to understand the "broader historical framework" of the swiftly changing contemporary legal professional culture. Scaturro slights the influence of contextual factors (such as C. C. Langdell's ultimately dominating case-centered pedagogy) on the justices' and lawmakers' tragic swerve away from race (and gender) justice. The book's obese third chapter (pp. 19-158!), essentially a mini-casebook of familiar Supreme Court decisions from the early 1870s through the century's end, is usefully augmented by detailed legislative histories of the public policies that spawned leading cases. Many readers will benefit from this survey, as well as from the mercifully briefer chapter 4, which scans the mid-twentieth-century's "Second Reconstruction."

Judge Hughes asked for "a touch of the poet" in legal writing and thought. Providing it, W. H. Auden wrote, "Law says the judge as he looks down his nose / Speaking clearly and most distinctly / Law is as I've told you before / Law is as you know I suppose / Law is but let me explain it once more / Law is the Law" (Collected Poems [New York, 1945], p. 74). Scaturro's new book tells us little more than this.

HAROLD M. HYMAN
Rice University