Authors: David M Obrien
ISBN-13: 9780872899513, ISBN-10: 0872899519
Format: Paperback
Publisher: Congressional Quarterly, Inc.
Date Published: September 2008
Edition: 3rd Edition
This fascinating collection captures the personal views of leading justices and judges on the judicial process, the function of judging, and the role of courts particularly the Supreme Court in our increasingly litigious society. It provides a uniquely intimate view of the judicial process, the dilemmas of deliberation and decision-making, and other matters about which court watchers and the general public usually can only speculate. No less important than the insights they offer about the operations of and the problems confronting courts, the selections make accessible contemporary justices and judges thinking about judicial activism and self-restraint, and the role of courts in the political process. The book contributes to the ongoing debate over off-the-bench commentaries and encourages readers to think about the qualities of judges their temperament, character, judicial philosophies, and political views as well as the role of courts in American politics.
Most Americans don't understand what judges do. Yet they are ready to comment on the latest instance of any perceived example of judicial wrongdoing. O'Brien (government, Univ. of Virginia) believes that one way to improve the quality of our public discussion about the proper place of the judiciary is to read what judges have to say about their jobs and the judicial process. In a remarkable collection of writings by a wide range of judgessome well known, some more reclusiveopinions are expressed about a number of court-related topics: the dynamics of the judicial process, the relationship of judges to the Constitution, the nature of our constitutional system, and the place of judges in a litigious society. As only two examples, former Robert Bork writes of tradition and morality in the common law, and Richard Posner presents the case against strict constructionism. This book should appeal to both scholars and the informed reading public. Recommended for public and academic libraries.Jerry E. Stephens, U.S. Court of Appeals Lib., Oklahoma City
Preface | ||
Acknowledgments | ||
Pt. I | Judicial Review and American Politics: Historical and Political Perspectives | |
Introduction | 1 | |
1 | The Doctrine of Judicial Review: Mr. Marshall, Mr. Jefferson, and Mr. Marbury | 7 |
2 | The Supreme Court in the American System of Government | 20 |
Pt. II | The Dynamics of the Judicial Process | |
Introduction | 29 | |
3 | The Path of Law | 51 |
4 | Advice and Consent in Theory and Practice | 58 |
5 | The Adversary Judge: The Experience of the Trial Judge | 68 |
6 | What I Ate for Breakfast and Other Mysteries of Judicial Decision Making | 76 |
7 | Whose Federal Judiciary Is It Anyway? | 82 |
8 | What Really Goes on at the Supreme Court | 88 |
9 | The Supreme Court's Conference | 92 |
10 | Deciding What to Decide: The Docket and the Rule of Four | 96 |
11 | The Role of Oral Argument | 104 |
12 | Precedent and Policy: Judicial Opinions and Decision Making | 108 |
Pt. III | The Judiciary and the Constitution | |
Introduction | 119 | |
13 | The Notion of a Living Constitution | 124 |
14 | A Relativistic Constitution | 135 |
15 | The Jurisprudence of Judicial Restraint: A Return to the Moorings | 146 |
16 | Tradition and Morality in Constitutional Law | 158 |
17 | What Am I, a Potted Plant? The Case Against Strict Constructionism | 165 |
18 | Originalism: The Lesser Evil | 170 |
19 | The Constitution: A Living Document | 178 |
20 | The Constitution of the United States: Contemporary Ratification | 183 |
21 | Speaking in a Judicial Voice: Reflections on Roe v. Wade | 194 |
22 | Our Democratic Constitution | 201 |
23 | Against Constitutional Theory | 216 |
24 | The Two Faces of Judicial Activism | 225 |
Pt. IV | The Judiciary and Federal Regulation: Line Drawing and Statutory Interpretation | |
Introduction | 239 | |
25 | Some Reflections on the Reading of Statutes | 247 |
26 | What Does Legislative History Tell Us? | 256 |
Pt. V | Our Dual Constitutional System: The Bill of Rights and the States | |
Introduction | 265 | |
27 | The Bill of Rights | 271 |
28 | Guardians of Our Liberties - State Courts No Less than Federal | 279 |
29 | First Things First: Rediscovering the States' Bills of Rights | 287 |
30 | State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions | 295 |
App. A | Selected Bibliography of Off-the-Bench Commentaries | 305 |
App. B | Time Chart of Members of the Supreme Court of the United States | 324 |
About the Editor | 329 |