| Book Review | Law and History Review, 26.3

Book Review

William M. Wiecek, History of the Supreme Court of the United States. The Birth of the Modern Constitution: The United States Supreme Court, 1941–1953, Cambridge: Cambridge University Press, 2006. Pp. xv + 733. $110.95 (ISBN 978-0-521-84820-6).

The assignment to write a volume for the Holmes Devise History of the United States Supreme Court presents unique obstacles. Its originators wanted the volumes to constitute a "definitive" history of the institution, itself an almost mad goal given the necessarily historicist dimension of writing about the past. There was also the questionable periodization by the tenure of Chief Justices rather than by reference to great themes that might well cut across particular tenures. Finally, there is the inevitable question of audience: For whom, exactly, are these gigantic and indefensibly overpriced tomes written? Are they intended to be read cover-to-cover by the presumed scholarly audience—and are the relevant scholars legal academics or legally untrained historians? Or are they instead semi-encyclopedias consisting of potted biographies of the relevant justices and summaries, based on archival research to be sure, of the more important cases decided during the relevant period?

William M. Wiecek also had to contend with the fact that his particular assignment—to tell the story of the Stone and Vinson Courts between 1941–1953—requires him to delineate one Court notable for its almost chaotic administration (the Stone Court) and another famous for the mediocrity of many of its membership, including, of course, the Chief Justice himself (the Vinson Court). On the other hand, he was lucky enough to be confronted with a spate of interesting—and, we now know in 2007, continuingly relevant—cases dealing with executive power during World War II and, of course, a variety of basic cases, written in the aftermath of Carolene Products' footnote 4, that limned what would be the Court's agenda for the next half century with regard to civil liberties and civil rights. And whatever the blandness of, say, Sherman Minton, Wiecek has the pleasure of writing about such strong and vivid personalities, with their own personal foibles, as Felix Frankfurter, Hugo Black, Harlan Fiske Stone, William O. Douglas, and, in some ways the most interesting of the group, Robert H. Jackson.

The cases that Wiecek chooses to write about he covers well and illuminatingly. What is surprising is how little attention he chose to pay to such seminal congressional powers cases as Darby Lumber or the ever shocking, at least to first-year students, Wickard v. Filburn, which are increasingly seen as constituting the real "Roosevelt Revolution" with regard to the foundations of the modern regulatory state. This is a book fundamentally about individual rights and the degree to which the Court protected them.

It is also a book about a Court (or two Courts) unsuccessfully searching for a justifying theory regarding its role following the collapse of what Wiecek calls "classical thought, with its belief in an objective, impartial, neutral, suprapolitical legal order" that allowed judges to speak with "oracular" authority (708). He tells his story largely by focusing on the ultimately doomed attempts of Black and Frankfurter—and of the Harvard creators of "legal process theory"—to stave off the full implications of the "cynical acid" generated by Frankfurter's idol Oliver Wendell Holmes. Wiecek's two chapters on Adamson v. California and the struggles over "incorporation" of the Bill of Rights are superb in this respect. One can confidently say that Black won the basic battle, but to this day it remains difficult to present a satisfying theoretical account of what is precisely incorporated and, more to the point, why.

Though Wiecek is well aware of the deficiencies of "his" courts—he is scathing with regard to such cases as Korematsu and Dennis, for example—he makes a reasonably good case that even the oft-dismissed Vinson Court had some real strengths. Earl Warren and "his" Court may be idolized for Brown, but Wiecek convincingly shows that the groundwork was laid in a series of decisions carefully crafted by the Vinson Court, including by Vinson himself. This is most notable with regard to Sweatt v. Painter. "Vinson's switch from his original position in conference to writing the Sweatt opinion reversing the segregationist holdings below demonstrates how important conference debates can sometimes be" (690). For all the fragmentation and, indeed, out-and-out animosity among members of the Court, they were capable of talking and even listening to one another. The Court had not yet become a collection of more-or-less isolated "law firms" of Justices-with-their-clerks and Conference devoid of any real intellectual encounters.

Inevitably, one can take issue with some of Wiecek's conclusions. He says, for example that the Court's regression with regard to protecting the speech rights of unpopular dissenters abated in 1957, when "the Justices resumed their libertarian reading of the First Amendment, once again reining in governmental power so as to protect communicative freedom" (536; see also 146). I strongly suspect that Messrs. Beilan and Lerner (1958), Barenblatt (1959), and Anastaplo, Konigsburg, Braden, Wilkinson, and Scales, as well as Ms. Brawner, (1961) would have taken a different view. Not until Felix Frankfurter was replaced by Arthur Goldberg in 1962 did the possibly misnamed "Warren Court" unequivocally begin its march toward the remarkably speech-protective decision in Brandenberg v. Ohio.

Some readers will surely feel that the volume is a bit claustrophobic inasmuch as there is often relatively little sense of the overarching political contexts within which the Court performed. This is, by and large, an "interior" history of the Supreme Court, full of supple doctrinal analysis, rather than a more "political" and outward-looking history like that found in the works of, say, Lucas A. Powe or Bruce Ackerman. Although Wiecek certainly (and justifiably) castigates the egregious prosecutorial and judicial misconduct surrounding the Rosenberg case, readers might have been informed that the case involved not only the obvious Cold War hostility that had developed between the United States and the U.S.S.R., but also the felt necessity of many Jews, including, of course, the two Irvings, the prosecutor Saypol and the sentencing judge Kaufman, to prove that they were 110% loyal Americans. This, of course, could be demonstrated by sending an almost certainly innocent Ethel Rosenberg to her death. But this is just to say that the book succeeds primarily as an "internal" history of judges, theories, and doctrines.

Does Wiecek successfully navigate all of the hurdles placed in his path by the structure of the Holmes Devise itself? No, but that may well be an impossible task. It is enough, presumably, that he merited the following encomium from the American Society of Legal History upon awarding him the 2007 John Phillip Reid award for the best English-language book published the previous year in legal history: "Wiecek's volume is highly readable, displays a singular ability to distill and explain complex legal issues in an easily understood fashion, and has a clear interpretative focus."

Sanford Levinson

University of Texas, Austin

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.