Vol. 1, No. 4 (June, 1991) pp. 65-68

THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986 by David P. Currie. Chicago: The University of Chicago Press, 1990. 668 pp. Cloth $70.00.

Reviewed by Ronald Kahn, Department of Government, Oberlin College.

Professor Currie has written an original, scholarly, subtle, and brilliantly documented volume on the history of Supreme Court doctrine from the era of Chief Justice Fuller, 1888-1910, through that of Chief Justice Warren Burger, 1969-1986. Currie's stan- dards for evaluating each Court era and its Justices, and the writing, are refreshing in their lucidity -- especially in this age of non-interpretivism, presentism, complex constitutional theories, and polemics on originalist interpretation. Each Part, one for each Chief Justice, and each chapter, is organized under titles and sub-headings which highlight major doctrinal develop- ments, allowing the book to be used as a reference work in addition to being read as a complete work.

Currie offers a critique of the Supreme Court and its Justices "from a modern lawyer's point of view." Cases, Justic- es, and Court eras are evaluated primarily as to the craftsman- ship of opinions, consistency of approach to doctrinal questions, and whether Court reasoning fits with a liberal originalist and textual analysis approach, one not too different from that of Justice Black. The unstated assumption of the book, as with most originalist approaches, is that electoral accountability, not respect for fundamental rights or the open ended and polysemic language, is at core of the constitutional interpretation. Judges are cautioned to neither disregard constitutional limita- tions on government nor invent others that it does not.

Professor Currie offers exquisite alternative arguments to those offered by the Court. He seeks to demonstrate how craft, the following of precedent, and a more sensitive reading of the words of the Constitution, in light of Founders' principles, can lead the Court to quite similar results to those of most modern non-originalist jurisprudence. Currie criticizes the Court for substituting its own principles for those laid down by the sovereign people, as with abortion rights and economic substan- tive due process. He writes, "To strike down a law on grounds lacking support in the Constitution is unacceptable, not only because it is illegitimate, but also because it weakens public confidence in the Court and thus impairs its ability to enforce the Constitution.(604)" Despite its weaknesses and dangers, Currie believes, on balance, judicial review has served us well.

The strength of the book is Currie's careful analysis of how polity principles, or parts of the Constitution relating to institutional power such as separation of powers and federalism, have been misapplied throughout the history of the Court. Currie cogently argues why separation of powers principles should not to be interpreted through an open-ended dialectical reading of the Constitution, in which

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government is mistakenly viewed as a modern pluralist bargaining regime in which reciprocal relationships among branches of gov-ernment are emphasized. Currie argues that separation of powers principles require a positive reading of constitutional language, to ensure that each branch of government is strong in its own area of authority and that checks and balances continue as safeguards for individual rights.

One can see these standards of evaluation at work in Currie's views as to who were the great Justices. Twentieth Century Justices Holmes and Brandeis, Cardozo and Hughes, Stone and Jackson, Frankfurter and Black belong with Marshall, Story, Curtis, and Miller from an earlier century in the pantheon of great Justices. The second Justice Harlan, who set a high standard of intellectual integrity, and Justice Brennan, who fought an impassioned and often successful thirty-year battle for liberty, democracy, and equality, are also singled out as great jurists. Justice Stone is particularly noteworthy for writing the modern law of intergovernmental immunity, commerce clause preemption, full faith and credit, extra-territorial taxation, and personal jurisdiction, and for the theoretical innovation of his preferred position analysis.

Currie is simply elegant in showing seeds of contemporary jurisprudence in the early days of this century -- even when he opposes many of the doctrinal changes. He is a rigorous and disciplined master of doctrinal analysis and Blackian originalism. Under Chief Justice Taft, 1921-1930, we are offered a subtle analysis of the seeds of modern day equal protection analysis with its different levels of scrutiny and how rights changed from `thou shalt not' limits on government to affirmative responsibilities for courts and government to protect positive liberties -- a development which Currie questions.

Under Chief Justice Hughes, 1930-41, Currie laments the granting of the right to counsel in Powell v. Alabama (1932), and what he views as the poorly argued and debatable conclusion that the Fourteenth Amendment protects speech against state abridgment in Stromberg v California (1931). Currie's analysis of the Stone era, 1941-46, demonstrates how wartime jurisprudence can provide unanticipated doctrinal consequences, such as innovation in equal protection, judicial review of agency action, and First Amendment principles. Faith in federalism and protecting state autonomy is demonstrated in Currie's conclusion that Wickard v Filburn (1942) is a "mockery of the Tenth Amendment"(287). Finally, one re- ceives a subtle introduction into the basic contours of modern First Amendment doctrines in Currie's analysis of the White, Taft, Hughes, Stone, and Vinson eras, 1910-1953.

Chief Justice Warren is praised for Brown v Board of Educa- tion (1953). However, Bolling v. Sharpe (1954) is criticized because equal protection guarantees are read into the due process (liberty) clause of Fifth Amendment. This meant substantive due process was back, and in its most troubling

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form. The Warren Court is viewed as not as rights protective as many people believe, because it allowed literacy tests, was weak on Communist subversion cases, and supported the censorship of pornography. Also, Currie deplores the blurring of the public-private distinction in school cases and the encroachment on state powers in its zeal to root out race discrimination, as in Hunter v. Erickson (1969). Griswold v. Conn. (1965) is viewed as the most egregious example of Warren Court excesses because the use of contraceptives have nothing to do with unreasonable searches or self-incrimination. However Currie concludes, overall, that the "Warren Court reached its revolutionary conclu- sions within the confines of fair interpretation of the relevant constitutional provisions -- often indeed, fulfilling the promise of provisions that earlier decisions had given an excessively cramped application(457)."

Currie's analysis of what he calls "The Real Warren Court," the Court after Frankfurter retired, is less imaginative than his work on earlier Courts. It seems to fit into the conventional, and I believe oversimplified, view that the Warren Court was dominated by a concern for equality. He does not report on the rather complex interplay of polity and rights principles in Warren Court jurisprudence. Nor does he link Warren Court jurisprudence to the pluralist political institutions and schol- arly thought of the day.

Currie also offers a quite conventional view of the Burger Court -- that its greatest accomplishment is that it did not engage in a counter revolution against Warren Court jurispru- dence. The right to abortion choice in Roe v Wade (1973) is viewed as analytically suspect, just as "its illiberal forebears" in the Lochner period. The right to abortion choice is neither a right in the constitution, dictated by precedent, nor required by the process reinforcement theory of Stone. However, Currie, true to his standards of evaluation, criticizes the abortion payment cases and Bowers v Hardwick (1986), the homosexual rights case, as not following precedent and as poorly argued. Finally, Currie opposes Plyler v. Doe (1982), a case in which children who illegally entered the United States from Mexico were granted the right to a free education. Currie supports arguments by the dis- senters opposing such a right on separation of powers and feder- alism principles and rejects the majority's affirmative rights arguments which were based on complex and quite innovative political process malfunction grounds, which one could argue follow Stone's famed Carolene Products footnote.

By reading this important book, one gains a renewed under- standing of what constitutes judicial craft. However, no system- atic or textured arguments for craft, for Blackian originalism, or for the study of Chief Justice eras as standards of evalua- tion, are presented. Currie assumes, rather than demonstrates convincingly, that better crafted opinions, a "liberal" originalist interpretation of the Constitution`s text, and the Supreme Court's rejection of affirmative rights which are not directly tied to words in the Constitution, would add to the legitimacy and effectiveness of the Supreme Court, limit citizen abuse by public officials, or better protect individual rights.

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Nor is Currie's critique of modern opinion writing, and his explanation of changes in internal Court processes as the cause, compelling. The Burger Court is criticized for writing too many concurring and dissenting opinions and too many opinions on unimportant subjects. He views Burger Court Justices as "self-indulgent" and not sufficiently concerned with doctrinal coherence; their opinions are viewed as "competent, but dull and faceless," lacking in "personality and forcefulness." Currie explains this problem as an outgrowth of the increased role of law clerks in researching and writing Supreme Court opinions. There is no attempt to explain Burger Court choices systematical- ly on the basis of changes in the wider political and social system or on the Court's dialogue with the interpretive community of constitutional scholars and political scientists, with their more complex and critical constitutional theories and interpreta- tions of American politics than those present in the Warren Court era.

Because one can view seeds of future doctrine in the past does not mean the past doctrine "explains" future doctrine. To view the Burger Court as merely a working out of Warren Court principles, or to look at doctrine as at the center of one's analysis, devoid of interpretations of American politics and institutions and constitutional theory of each age, or of the social forces with which the Court had to contend, does not offer a sufficient explanation of doctrinal change, nor of the struc- tural role of the Supreme Court in our system of government. When Currie does venture into the wider political system as a source of explanation for Court choices, we are offered a rather general view that the Court follows politics -- or public opin- ion. We are left with the unsatisfying view that misguided choices by conservative Republican presidents explain the Burger Court.

This book is recommended reading for presentist, non-originalist, feminist, critical legal studies, and civic republican legal scholars and practitioners, as well as more traditional scholars and practitioners, not because they will agree with the standards of evaluation used by Professor Currie. But rather they will appreciate, with renewed vigor, the place of judicial craft or the lack of it, on the development of constitu- tional principles. This book also is a needed antidote against the presentism of much modern constitutional scholarship and the tendency to see each Court era as a kingdom unto itself. Final- ly, one gains an opportunity to review cases that are not part of the usual litany of law textbooks -- because they are not "the law" now, but were central to the development of modern jurispru- dence. This book will be of great interest to scholars of individual Justices, Court eras, and doctrine, and to the in- formed lay jurist and lawyer, and is a must for all college, university, and law school libraries. However, political scien- tists, especially those who are interested in explaining Court behavior, will find this volume less informative. They will have to graft their theories of Court decision-making onto Currie's historical tapestry of doctrinal change.

Copyright 1991