A PEOPLE'S HISTORY OF THE SUPREME COURT by Peter Irons. New York: Viking Press; Penguin Books, 2000. Cloth $32.95. ISBN: 0-67-087006-4. Paper $15.95. ISBN 0-14-029201-2.

Reviewed by Mark E. Rush, Department of Politics, Washington and Lee University

Peter Irons has written very readable account of "the men and women whose cases and decisions have shaped our constitution." The book is written for a general audience and is therefore an easy read. However, in the end, Irons' level of generality leaves the reader wanting to learn more and wishing that he had taken the time and space necessary to develop his narrative in more detail.

This will be especially obvious to anyone who teaches constitutional law. Despite the best efforts of our colleagues who write constitutional law textbooks, I think we would all agree that no text covers everything satisfactorily. There are always details that we would like to add to our assignments to enhance the students' understanding not only of the "nuts and bolts" issues of constitutionalism but also of the human side of the cases that find their way to the Supreme Court. Speaking only for myself, I wish that I could make a weekly assignment of the equivalent of Anthony Lewis' GIDEON'S TRUMPET to accompany the cases we cover in my constitutional law course. However, given the mountain of cases and background material one needs to assign in a constitutional law course, this is impractical.

In light of this, I was quite excited at the prospect of reading and reviewing A PEOPLE'S HISTORY OF THE SUPREME COURT. Finally, I thought, there might be a companion to the con law texts that would make students appreciate the human side and real costs involved in seeking "justice" in the courts. Ultimately, however, I was disappointed. Although one must respect Irons' ambition in covering such a broad scope of history, I found that the coverage was too superficial. As a result, while Irons may whet the appetite of the general reader, he merely teases anyone who has any familiarity with the Court.

The book is divided chronologically into six sections comprised of several chapters each. Section one covers American history prior to ratification of the new constitution. Section two covers the establishment of judicial review and the assertion of federal power over the states. Section three focuses on the slavery issue and the speed with which the Court narrowed the scope of the Civil War Amendments. In Section four, Irons chronicles the Court's development of "Liberty in a Social Organization" in its jurisprudence concerning the commerce clause and free speech and the Court's battles with the New Deal. Section five ("Beyond the Reach of Majorities") is perhaps the most poignant because Irons documents the plights of individuals who fought their way to the Supreme Court and whose cases ultimately established the equality rights of racial minorities as well as

Page 644 begins here

religious dissenters. The final section addresses personal privacy.

In the space of a short review, it is hard to do justice to a book that covers 210 years of judicial history in 485 pages. Irons' principal theme is to remind us that constitutional history tends to be written by and focus on the winners. He therefore constantly reminds us of who the winners and losers are and the prices both paid in their search for justice. In such a short volume, however, his commentary and conclusions are necessarily brief and sometimes superficial.

For example, Irons devotes large sections of the book to issues of race. His narrative is gripping, but his conclusions cry out for elaboration. His emphasis on the personal characteristics and dispositions of the Justices should be illuminating to anyone who may still regard the Court as a mythic institution comprised of Hand's "Platonic Guardians." However, I suspect that even the neophyte would become suspicious of Iron's generalizations.

Although anyone can lament the Dred Scott decision, it is hard to accept Irons' account of its being simply a manifestation of Taney's "predetermined goal of promoting the extension of slavery into the territories" (p. 176). Taney's decision was regrettable. However, we can't simply write the decision off as merely the unconstrained policymaking of a court comprised of former slaveholders.

Unquestionably, A PEOPLE'S HISTORY OF THE SUPREME COURT will cause anyone to reconsider the Court's impact and sensitize readers to the great personal sacrifices made by the plaintiffs who were willing to take stands on the basis of their convictions. Levi Pearson's attempt to desegregate school busses in South Carolina led him to financial ruin as banks cut him off and his crops subsequently rotted (p. 385). Irons' accounts of the bigotry and racism encountered by black veterans returning from the war, Linda Eckford's attempt to attend school in Little Rock and President Eisenhower's reluctance to intervene in Arkansas are equally gripping. In episodes such as these, Irons poignantly demonstrates how law and politics mix and how a Court may fail to rescue the people whose rights it is intended to protect.

Certainly one chafes when reminded of the difficulties and injustices encountered by so many Americans in their search for justice. However, Irons' narrative reminds us as well that the Court is a political institution and it decisions must be regarded as products of the Justices' attitudes, the political tenor of the times, and the institutional limits of the Court.

In this respect, A PEOPLE'S HISTORY OF THE SUPREME COURT is actually a brief refection on American history and political development. Although describing the failures and successes of the Court to bring about social justice, Irons really portrays and reminds us of the ugly underside of American history. It is easy to appreciate the fact that he wishes that the Supreme Court had acted differently. However, I think that a more accurate portrayal of the Court would have included a discussion of the institutional constraints that prevent it from bringing about the social change that critics desire.

Clearly, the Court might have spoken out sooner and more forcefully against the mistreatment of native Americans, slavery, segregation and so forth. In some cases, the disposition of the Justices themselves

Page 645 begins here

prevented this. In this respect, however, Irons' narrative reminds us that the Court is a plural body that is affected by the Justices' political dispositions. On the other hand, his account of desegregation also reminds us that the Court is indeed the least dangerous branch of the government and dependent on the other branches for support. Thus, his account of Little Rock and Topeka clearly manifest the extent that the Court cannot bring about social change alone. The Court did not desegregate Little Rock, the army did.

In sum, I'd recommend that A PEOPLE'S HISTORY OF THE SUPREME COURT as a supplement to any constitutional law course. Ideally, it might be read in tandem with Iron's THE COURAGE OF THE CONVICTIONS so that the reader can get better profiles of Irons' subjects. Be forewarned that Irons does tend to cast things in stark, black and white terms. As a result, the reader is likely to find his or her convictions either affirmed or tests while working through either work. Still, Irons has a tale to tell and it is an important one that details the human side of American constitutional development.

Copyright 2000 by the author, Mark E. Rush.