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Monday, April 03, 2006 

Book Recommendations

I spend many hours each day reading law and law-related materials. When I'm outside of school and reading just for leisure, I don't read a lot of law books. The law books that I do read for pleasure are generally about the Supreme Court and Constitutional law. Sure, I'll occasionally read something about legal theory, like Richard Epstein's Takings book, but that is rare. Here are three of my favorite books about the Supreme Court.

The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong. This is the book that got me interested in the internal politics of the Supreme Court. It covers the first seven terms of the Burger Court. The Burger Court was in many ways a transitional court between the liberal Warren Court and the more conservative Rehnquist Court. Because of this, there are many strange decisions from the Court during this period. The accounts of the backroom dealings and politics among the Justices, the almost universal contempt for Chief Justice Burger, and the personalities of the Justices are all incredibly interesting. The newest edition has a different cover, but I'll always prefer the one on my first edition hardcover: old men in 1970's era suits. Snazzy.

A Court Divided: The Rehnquist Court and the Future of Constitutional Law
by Mark Tushnet. I read this book earlier in the year for my American Constitutional History course. This is probably the most current book about the Supreme Court. Tushnet, a law professor, examines the important cases of the past 15 years and looks at the ideological differences among the Justices. His view is that the real split on the Rehnquist Court is not between conservatives and liberals, but between old school conservatives and Reagan-era ideological conservatives. The liberals only have five votes when those two conservative groups disagree on an issue. It's an interesting and readable book. Tushnet's biases aren't very hidden. He's no fan of Justice Scalia but heaps praise on Justice Thomas. One of Tushnet's major criticisms of Scalia is that his poison pen style of writing has alienated his colleagues, making it harder for Scalia to form majority coalitions.

The Tempting of America by Robert Bork. This book is really two books in one. The first half is devoted to a detailed examination of the history of Constitutional law and the Supreme Court. Bork analyzes each Court, looking at their controversial decisions, and tells the reader where the Justices got it wrong or right. He uses these examples as support for his favored judicial theory, originalism. This part of the book can be fairly dense and even had me looking up cases online and terms in Black's Law Dictionary. The second part of the book is the more readable and, in my opinion, more enjoyable. Here, Bork tells the story of his confirmation process. He gives the reader an insider's look at the entire ordeal, providing the kind of detail that only someone in his position could. It also shows the reader how smarter the Republicans have become since the Bork hearings. I wouldn't look for a repeat of history any time soon.

If you're interested in these books, I would recommend reading them in that order. Bork's book is easier to read if you have the kind of background that the first two books provide. There are a lot of legal terms and processes that you pick up just by reading the first two books. They really walk you through the whole world of the Court. Bork's not the handholding type. I would recommend having a decent legal knowledge base before jumping in with both feet.

When reading the Tushnet book, recall the old saying to beware of greeks bearing gifts. Mark is a great writer, and I am invariably delighted to watch panel discussions on which he sits, but as you say, his biases are not well-hidden. IIRC, he is a part of the critical legal studies movement, and you don't get involved in something like that without having your worldview shaped by it. There are a few places where he makes some odd bifurcations, and hearing him talk about how Thomas will likely succeed in proportion to how well he resists the urge to follow Scalia's writing style helps me perhaps to empathize with how my liberal friends felt in early 2004 when I would make suggestions about why Howard Dean was a better pick for them than John Kerry - I was being sincere, but when someone who wants you to lose gives you tactics advice, you have to wonder about it.

It's a good book - and surely to God it's better and more accurate than Sunstein's ridiculous offering Radicals in Robes - but it is (explicitly) written for a lay audience, and I wonder how much of my ability to distinguish between what's accurate and what's slanted is innate, that is, that it happens unconsciously based on knowledge and experience that Tushnet's target readership does not have. Hence, beware of CRITters bearing gifts.

The Bork book, on the other hand, is great, although frankly, I think he would have done himself (and the credibility of the theories espoused therein) a lot of favors if he had published two separate books: The Tempting of America and a separate memoir of the confirmation hearing debacle.

Radicals in Robes is definitely not on my list. I was a little shocked when it came out. Sunstein never seemed like that type to write one of those mass market, politicized attack books. I liked Laws of Fear, I liked Risk and Reason, but Radicals in Robes was just bad.

I would've loved having the Bork book split in half, mostly because I'm very interested in the confirmation hearing events. He goes into great detail in the book, but I would love to hear more about his meetings with the Senators. The account of Ted Kennedy not being so full of bluster and energy when face to face with Bork was especially nice. I think that the process itself is just fascinating and would love to hear more about it from an insider.

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  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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