Unique among Western democracies in refusing to eradicate the death penalty, the United States has attempted instead to reform and rationalize state death penalty practices through federal constitutional law. Courting Death traces the unusual and distinctive history of top-down judicial regulation of capital punishment under the Constitution and its unanticipated consequences for our time.

In the 1960s and 1970s, in the face of widespread abolition of the death penalty around the world, provisions for capital punishment that had long fallen under the purview of the states were challenged in federal courts. The U.S. Supreme Court intervened in two landmark decisions, first by constitutionally invalidating the death penalty in Furman v. Georgia (1972) on the grounds that it was capricious and discriminatory, followed four years later by restoring it in Gregg v. Georgia (1976). Since then, by neither retaining capital punishment in unfettered form nor abolishing it outright, the Supreme Court has created a complex regulatory apparatus that has brought executions in many states to a halt, while also failing to address the problems that led the Court to intervene in the first place.

While execution chambers remain active in several states, constitutional regulation has contributed to the death penalty’s new fragility. In the next decade or two, Carol Steiker and Jordan Steiker argue, the fate of the American death penalty is likely to be sealed by this failed judicial experiment. Courting Death illuminates both the promise and pitfalls of constitutional regulation of contentious social issues.

Of the nearly five thousand cases presented to the Supreme Court each year, less than 5 percent are granted review. How the Court sets its agenda, therefore, is perhaps as important as how it decides cases. H. W. Perry, Jr., takes the first hard look at the internal workings of the Supreme Court, illuminating its agenda-setting policies, procedures, and priorities as never before. He conveys a wealth of new information in clear prose and integrates insights he gathered in unprecedented interviews with five justices. For this unique study Perry also interviewed four U.S. solicitors general, several deputy solicitors general, seven judges on the D.C. Circuit Court of Appeals, and sixty-four former Supreme Court law clerks.

The clerks and justices spoke frankly with Perry, and his skillful analysis of their responses is the mainspring of this book. His engaging report demystifies the Court, bringing it vividly to life for general readers—as well as political scientists and a wide spectrum of readers throughout the legal profession. Perry not only provides previously unpublished information on how the Court operates but also gives us a new way of thinking about the institution. Among his contributions is a decision-making model that is more convincing and persuasive than the standard model for explaining judicial behavior.

On January 6, 2021, an angry mob stormed the U.S. Capitol in an attempt to overturn the results of the 2020 presidential election. This assault on America’s democratic system was orchestrated by then President Donald Trump, abetted by his political party, and supported by a vocal minority of the American people. Did denial of the election results and the subsequent insurrection inflict damage on American political institutions? While most pundits and many scholars say yes, they have offered little rigorous evidence for this assertion. In Democracy’s Destruction? political scientist James L. Gibson uses surveys from representative samples of the American population to provide a more informed answer to the question.
 
Focusing on the U.S. Supreme Court, the presidency, and the U.S. Senate, Gibson reveals that how people assessed the election, the insurrection, and even the second Trump impeachment has little connection to their willingness to view American political institutions as legitimate. Instead, legitimacy is grounded in more general commitments to democratic values and support for the rule of law. On most issues of institutional legitimacy, those who denied the election results and supported the insurrection were not more likely to be alienated from political institutions and to consider them illegitimate.
 
Gibson also investigates whether Black people might have responded differently to the events of the 2020 election and its aftermath. He finds that in comparison to the White majority, Black Americans were less supportive of America’s democratic institutions and of democratic values, such as reverence for the rule of law, because they often have directly experienced unfair treatment by legal authorities. But he emphasizes that the actions of Trump and his followers are not the cause of those weaker commitments.
 
Democracy’s Destruction? offers rigorous analysis of the effect of the Trump insurrection on the state of U.S. democracy today. While cautioning that Trump and many Republicans may be devising schemes to subvert the next presidential election more effectively, the book attests to the remarkable endurance of American political institutions.

 

The first Earth Day in 1970 marked environmentalism’s coming-of-age in the United States. More than four decades later, does the green movement remain a transformative force in American life? Presenting a new account from a legal perspective, Environment in the Balance interprets a wide range of U.S. Supreme Court decisions, along with social science research and the literature of the movement, to gauge the practical and cultural impact of environmentalism and its future prospects.

Jonathan Z. Cannon demonstrates that from the 1960s onward, the Court’s rulings on such legal issues as federalism, landowners’ rights, standing, and the scope of regulatory authority have reflected deep-seated cultural differences brought out by the mass movement to protect the environment. In the early years, environmentalists won some important victories, such as the Supreme Court’s 1973 decision allowing them to sue against barriers to recycling. But over time the Court has become more skeptical of their claims and more solicitous of values embodied in private property rights, technological mastery and economic growth, and limited government.

Today, facing the looming threat of global warming, environmentalists struggle to break through a cultural stalemate that threatens their goals. Cannon describes the current ferment in the movement, and chronicles efforts to broaden its cultural appeal while staying connected to its historical roots, and to ideas of nature that have been the source of its distinctive energy and purpose.

The present volume, a selection of Frankfurter's extrajudicial nontechnical writings on the Supreme Court, its Justices, and its business, includes fifty-four pieces written between 1913 and 1956 and originally published in popular or scholarly journals. These essays serve to reinforce Frankfurter's stature as a truly just and concerned individual; and their chronological arrangement reveals the consistency of his views on the proper role of the Court.

“[A] learned and thoughtful portrayal of the history of race relations in America…authoritative and highly readable…[An] impressive work.”
—Randall Kennedy, The Nation

“This comprehensive history…reminds us that the fight for justice requires our constant vigilance.”
—Ibram X. Kendi

“Remarkable for the breadth and depth of its historical and legal analysis…makes an invaluable contribution to our understanding of the US Supreme Court’s role in America’s difficult racial history.”
—Tomiko Brown-Nagin, author of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

From the Cherokee Trail of Tears to Brown v. Board of Education to the dismantling of the Voting Rights Act, Orville Vernon Burton and Armand Derfner shine a powerful light on the Supreme Court’s race record—uplifting, distressing, and even disgraceful. Justice Deferred is the first book that comprehensively charts the Supreme Court’s race jurisprudence, detailing the development of legal and constitutional doctrine, the justices’ reasoning, and the impact of individual rulings.

In addressing such issues as the changing interpretations of the Reconstruction amendments, Japanese internment in World War II, the exclusion of Mexican Americans from juries, and affirmative action, the authors bring doctrine to life by introducing the people and events at the heart of the story of race in the United States. Much of the fragility of civil rights in America is due to the Supreme Court, but as this sweeping history reminds us, the justices still have the power to make good on the country’s promise of equal rights for all.

Winner of the Thomas M. Cooley Book Prize, Georgetown Center on the Constitution

Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy.

Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate.

Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.

Abortion, affirmative action, the "right to die," pornography and free speech, homosexuality and sex discrimination: as eagerly as the Supreme Court's rulings on these hot issues are awaited and as intently as they're studied, they never seem to settle anything once and for all. But something is settled in the process--in the incremental approach--as Cass Sunstein shows us in this instructive book.

One of America's preeminent constitutional scholars, Sunstein mounts a defense of the most striking characteristic of modern constitutional law: the inclination to decide one case at a time. Examining various controversies, he shows how--and why--the Court has avoided broad rulings on issues from the legitimacy of affirmative action to the "right to die," and in doing so has fostered rather than foreclosed public debate on these difficult topics. He offers an original perspective on the right of free speech and the many novel questions raised by Congress's efforts to regulate violent and sexual materials on new media such as the Internet and cable television. And on the relationship between the Constitution and homosexuality and sex discrimination, he reveals how the Court has tried to ensure against second-class citizenship--and the public expression of contempt for anyone--while leaving a degree of flexibility to the political process.

One Case at a Time also lays out, and celebrates, the remarkable constellation of rights--involving both liberty and equality--that now commands a consensus in American law. An authoritative guide to the Supreme Court, the book offers a new understanding of the American Constitution, and of the relationship between democracy and constitutionalism, and between rights and self-government.

In 1985 the Supreme Court ruled in Lynch v. Donnelly that the inclusion of a life-sized crèche in a civic Christmas display did not constitute an unconstitutional establishment of religion. Through her examination of this difficult case, Sullivan reveals divergent American understandings of the nature of religion, the role of religion in public life, and the relationship and interaction of law and religion.

First published in 1998 to commemorate the sesquicentennial of Wisconsin statehood, this book has been updated to mark the Wisconsin Supreme Court's 150th anniversary and the 125th anniversary of the State Bar of Wisconsin, both celebrated in 2003. It contains profiles of all those who have served as Wisconsin Supreme Court justices and a new introduction by Chief Justice Abrahamson summarizing the court's history and its vision for the future. This book is an excellent reference for students, attorneys, and all interested in the state's legal history.

Winner of the Julia Ward Howe Prize

“The gripping story of the most important environmental law case ever decided by the Supreme Court.”
—Scott Turow

“In the tradition of A Civil Action, this book makes a compelling story of the court fight that paved the way for regulating the emissions now overheating the planet. It offers a poignant reminder of how far we’ve come—and how far we still must go.”
—Bill McKibben, author of The End of Nature

On an unseasonably warm October morning, an idealistic young lawyer working on a shoestring budget for an environmental organization no one had heard of hand-delivered a petition to the Environmental Protection Agency, asking it to restrict greenhouse gas emissions from new cars. The Clean Air Act authorized the EPA to regulate “any air pollutant” thought to endanger public health. But could carbon dioxide really be considered a harmful pollutant? And even if the EPA had the authority to regulate emissions, could it be forced to do so?

The Rule of Five tells the dramatic story of how Joe Mendelson and the band of lawyers who joined him carried his case all the way to the Supreme Court. It reveals how accident, infighting, luck, superb lawyering, politics, and the arcane practices of the Supreme Court collided to produce a legal miracle. The final ruling in Massachusetts v. EPA, by a razor-thin 5–4 margin brilliantly crafted by Justice John Paul Stevens, paved the way to important environmental safeguards which the Trump administration fought hard to unravel and many now seek to expand.

“There’s no better book if you want to understand the past, present, and future of environmental litigation.”
—Elizabeth Kolbert, author of The Sixth Extinction

“A riveting story, beautifully told.”
—Foreign Affairs

“Wonderful…A master class in how the Supreme Court works and, more broadly, how major cases navigate through the legal system.”
—Science

In a few thousand words the Constitution sets up the government of the United States and proclaims the basic human and political rights of its people. From the interpretation and elaboration of those words in over 500 volumes of Supreme Court cases comes the constitutional law that structures our government and defines our individual relationship to that government. This book fills the need for an account of that law free from legal jargon and clear enough to inform the educated layperson, yet which does not condescend or slight critical nuance, so that its judgments and analyses will engage students, practitioners, judges, and scholars.

Taking the reader up to and through such controversial recent Supreme Court decisions as the Texas sodomy case and the University of Michigan affirmative action case, Charles Fried sets out to make sense of the main topics of constitutional law: the nature of doctrine, federalism, separation of powers, freedom of expression, religion, liberty, and equality.

Fried draws on his knowledge as a teacher and scholar, and on his unique experience as a practitioner before the Supreme Court, a former Associate Justice of the Supreme Judicial Court of Massachusetts, and Solicitor General of the United States to offer an evenhanded account not only of the substance of constitutional law, but of its texture and underlying themes. His book firmly draws the reader into the heart of today's constitutional battles. He understands what moves today's Court and that understanding illuminates his analyses.

The conventional wisdom holds that the Supreme Court provides the final word—as the Court tells the people what the Constitution commands. In interpreting uncertain constitutional text, however, the Court is not provided with a single answer but must, itself, make hard choices. Such choices by an unelected Court appear to conflict with the basic principle of majority rule by the people through their elected representatives in our democracy.Over time, however, through public debate, new arguments before the Court, legislation, new appointments to the Court, and constitutional amendments, the Court's prior judgments evolve, are distinguished or modified, and are even directly overturned. Viewed from this longer term perspective, the Court's supposedly final rulings can therefore be seen as an integral part of an ongoing national dialogue over the meaning of the Constitution. This understanding makes judicial review more consistent with our tradition of government by the people rather than by the Court.To explore this understanding, The Supreme Court and Judicial Choice develops a provisional approach to judicial review under which a surprisingly large number of judicial rulings would be subject to modification by ordinary legislation enacted by Congress. Far from rendering the Court a powerless subject of Congress, this proposal would enhance the vital role of the Court in stimulating and shaping the ongoing dialogue with the people over the meaning of the Constitution.

“The Supreme Court follows the election returns,” the fictional Mr. Dooley observed a hundred years ago. And for all our ideals and dreams of a disinterested judiciary, above the political fray, it seems Mr. Dooley was right. In this engaging—and disturbing—book, a leading historian of the Court reveals the close fit between its decisions and the nation’s politics.

The story begins with the creation of the Constitution and ends with the June 2008 decisions on the rights of detainees at Guantánamo Bay. Rendering crisp (and often controversial) judgments on key decisions from Marbury v. Madison to the War on Terror, Lucas Powe shows how virtually every major Supreme Court ruling, however deftly framed in constitutional terms, suited the wishes of the most powerful politicians of the time. This history reflects a changing Court, from the country’s early struggles over commerce and transportation to the torturous justifications of slavery before the Civil War, to a post–New Deal interest in ending segregation, controlling criminal procedure, and addressing knotty questions arising from the Cold War. Through all of this the Court emerges as part of a ruling regime, doing its best to implement the regime’s policies.

Drawing on more than four decades of thinking about the Supreme Court and its role in the American political system, this book offers a new, clear, and troubling perspective on American jurisprudence, politics, and history.

The chief mandate of the criminal justice system is not to prosecute the guilty but to safeguard the innocent from wrongful convictions; with this startling assertion, legal scholar George Thomas launches his critique of the U.S. system and its emphasis on procedure at the expense of true justice.

Thomas traces the history of jury trials, an important component of the U.S. justice system, since the American Founding. In the mid-twentieth century, when it became evident that racism and other forms of discrimination were corrupting the system, the Warren Court established procedure as the most important element of criminal justice. As a result, police, prosecutors, and judges have become more concerned about following rules than about ensuring that the defendant is indeed guilty as charged. Recent cases of prisoners convicted of crimes they didn't commit demonstrate that such procedural justice cannot substitute for substantive justice.

American justices, Thomas concludes, should take a lesson from the French, who have instituted, among other measures, the creation of an independent court to review claims of innocence based on new evidence. Similar reforms in the United States would better enable the criminal justice system to fulfill its moral and legal obligation to prevent wrongful convictions.

"Thomas draws on his extensive knowledge of the field to elaborate his elegant and important thesis---that the American system of justice has lost sight of what ought to be its central purpose---protection of the innocent."
—Susan Bandes, Distinguished Research Professor of Law, DePaul University College of Law

"Thomas explores how America's adversary system evolved into one obsessed with procedure for its own sake or in the cause of restraining government power, giving short shrift to getting only the right guy. His stunning, thought-provoking, and unexpected recommendations should be of interest to every citizen who cares about justice."
—Andrew E. Taslitz, Professor of Law, Howard University School of Law

"An unflinching, insightful, and powerful critique of American criminal justice---and its deficiencies. George Thomas demonstrates once again why he is one of the nation's leading criminal procedure scholars. His knowledge of criminal law history and comparative criminal law is most impressive."
—Yale Kamisar, Distinguished Professor of Law, University of San Diego and Clarence Darrow Distinguished University Professor Emeritus of Law, University of Michigan

The Supreme Court under Chief Justice Earl Warren was the most revolutionary and controversial Supreme Court in American history. But in what sense? Challenging the reigning consensus that the Warren Court, fundamentally, was protecting minorities, Lucas A. Powe, Jr. revives the valuable tradition of looking at the Supreme Court in the wide political environment to find the Warren Court a functioning partner in Kennedy–Johnson liberalism. Thus the Court helped to impose national liberal-elite values on groups that were outliers to that tradition: the white South, rural America, and areas of Roman Catholic dominance.In a learned and lively narrative, Powe discusses over 200 significant rulings: the explosive Brown decision, which fundamentally challenged the Southern way of life; reapportionment (one person, one vote), which changed the political balance of American legislatures; the gradual elimination of anti-Communist domestic security programs; the reform of criminal procedures (Mapp, Gideon, Miranda); the ban on school-sponsored prayer; and a new law on pornography.Most of these decisions date from 1962, when those who shaped the dominant ideology of the Warren Court of storied fame gained a fifth secure liberal vote. The Justices of the majority were prominent individuals, brimming with confidence, willing to help shape a revolution and see if it would last.