Overruled : the long war for control of the U.S. Supreme Court

by Damon Root

Hardcover, 2014

Status

Available

Call number

347.73/26

Genres

Politics, Government, Law and Public Policy

General Nonfiction

Nonfiction

History

Publication

New York City : Palgrave Macmillan, 2014.

Description

"Can the federal government make you eat your fruits and vegetables? Supreme Court nominee Elena Kagan seemed to think so when asked if she thought Congress possessed the constitutional power to force every American to "eat three fruits and three vegetables every day." Kagan laughed and said that while it sounded like "a dumb law," that did not make it an unconstitutional one. In other words, if you don't like what your lawmakers have done, take your complaint to the ballot box, not to the courthouse. It was a classic case of judicial restraint, the idea that judges should defer to the will of the majority and refrain from striking down most democratically-enacted laws, even the really dumb ones. Judicial restraint and judicial activism cut across the political spectrum in surprising ways and make for some unusual bedfellows. Judicial restraint is not only a touchstone of the Progressive left, it is also a philosophy adopted by many members of the modern right. The growing camp of libertarians and free-market conservatives, however, has no patience with judicial restraint and little use for majority rule. Chief Justice Roberts' 2012 ruling in favor of Obama's health care law is an excellent case in point, though only the most recent. This is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society, a fundamental debate that goes to the very heart of our constitutional system"--… (more)

User reviews

LibraryThing member jrgoetziii

This excellent book details the conflict between those who favor judicial restraint and those who favor judicial activism. Mr. Root provides historical background, dating the judicial activism group to Justice Eric Field, and the judicial restraint group to Justice Oliver Wendell Holmes, Jr., and

he explores how the back-and-forth power struggle between the two groups has led to the present legal atmosphere, including debates over gun control, Obamacare, abortion, and gay marriage.

One thing that could have been developed more is a skepticism about the degree to which individual members of the Supreme Court can be categorized as either in favor of restraint or in favor of activism. I do think they can be categorized, but softly, not firmly, and it would do well to explore in more detail how this impacts the dynamic of the Court. It may well be its own separate book.

Easily one of the top five books I have received through the Early Reviewers program!!

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LibraryThing member enrique_molinero

I’ve been reading Damon Root’s work for Reason over the past several years so I was extremely pleased to receive this book as part of the Early Reviewers program. And Root’s book is much like his columns in that they’re both easy to read and highly informative in this case taking us back to

the founding and running us all the way to the present from the basic underpinnings of the libertarian legal movement to the movement’s current successes and failures. There’s not a weak portion of the book and likely just because I’ve followed so much of his writing on the more recent cases but I felt the sections on the fourteenth amendment, Slaughterhouse, and Lochner were the strongest. All in all this is a great work, easy to read but clearly well-researched and a strong recommend to all lovers of liberty and to those wanting to learn about the libertarian legal movement.

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LibraryThing member sherman1951

I am suspicious of anyone who claims they can determine “original intent” of the US Constitution. It is difficult to know what the framers would think of our modern society and they would or would not adjust what was written more than 200 years ago. In that same vein, I am equally suspicious of

the libertarian model of nullifying laws and overturning stare decisis that have served society (relatively) well. While the author provides an interesting history of some of the most famous/infamous court decisions and the battle between majoritarian rule and an Ayn Rand-type laissez-faire capitalism. However, if you are a fan of Reason magazine and largely to the right-of-center in your political thinking, you might enjoy this treatise. While the author provides a concise history of the continued conflict within the court, I believe him wrong in a number of his interpretations. From a writing standpoint, the author relied too heavily on direct and lengthy quotes from Supreme Court decisions that could have been better summarized. I also found annoying his use of the opening of court announcement on that day’s hearing (we get it, the chief justice announces the will be argued).

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LibraryThing member sallylou61

Although Mr. Root gives a history of the “war for control” beginning with the passage of the 14th Amendment to the Constitution, much of the book is devoted to relatively recent court activity. Recently, the main contenders trying to get control as described in this book are the libertarians

versus the conservatives rather than the liberals versus the conservatives. Mr. Root writes from a libertarian viewpoint. Some of the broad topics discussed, especially toward the end of the book, include eminent domain, guns, and Obamacare. The way the different justices view specific court cases is shown. The book is a discussion of judicial activism versus judicial restraint.

This detailed discussion would primarily be of interest to experts knowledgeable about the Supreme Court rather than general readers.

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LibraryThing member CharlesBoyd

I found "Overruled: The Long War for Control of the U.S. Supreme Court," by Damon Root to be written in a way that made the history and ideas clear to non-lawyers such as me. I gained a better understanding of judicial restraint and judicial activism. I learned about major legal figures such as

Eric Field that I'd never heard of, and more about major legal figures such as Oliver Wendell Homes about whom I'd mostly known the name and a few sparse details. So, this book is a welcome addition to my library.

All of the above said, this is not a book about which non-lawyers will remember much more than some of the general ideas it presents unless he/she reads it a second time and studies it carefully..

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LibraryThing member btuckertx

For some reason, I thought "Overruled: The Long War for Control of the U.S. Supreme Court" was going to be about the political battles over nominees to the Supreme Court. I was wrong. This very readable book discussed the difference between the concepts of judicial restraint and judicial activism.

I had always considered that the difference was in who's ox was being gored; i.e., it's judicial activism if a court decision goes against my interests. Wrong again.

I was taught in my high school US Government classes that the Constitution was set up to protect "We the People" against mob rule. In today's world that essentially means "governing by polls" And that the Supreme Court's job was to make sure that laws were constitutional. Turns out my teachers, and me by extension, were wrong once more.

The author, Damon Root, tells us that judicial restraint = judicial deference = bending over backwards to ensure that laws passed by Congress are upheld, regardless of any violation of individual rights. Further, judicial activism - usually decried as a liberal plot - these days is actually the darling of libertarianism, and finds that the Constitution says individual rights should trump deference to Congress.

All of this cut against the grain of what I'd been taught that I had to read it twice to make sure I understood the basic concepts. Another reading is probably due. I found Mr. Root's book to be interesting, well-researched, well-written, and I will find a way to read more of his works. His political beliefs are probably somewhat to the right of mine, but I always enjoy hearing the other side's arguments, especially when they are laid out as well as this one was. i recommend it to anyone with more than a passing interest in how our government works.

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LibraryThing member bookwormgeek

Overruled: The Long War for Control of the U.S. Supreme Court," by Damon Root, was written so that the concepts of judicial activism and judicial restraint would be clear and understandable to anyone reading who didn't have a law degree. That being said, I still found myself re-reading several

passages to make sure I fully understood what point Root was trying to make. The book also provides background on major U.S. legal figures, as well as their personal philosophies and contribution to the court. It was a good, if deep, read. I'd recommend it to anyone interested in the U.S. legal system, as well as anyone interested in seeing how some of the important decisions made by the Supreme Court came to be.

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LibraryThing member plumdog28

Very well-written and thought-out summary of the differences between judicial restraint and judicial activism, from the history of the 14th Amendment to today. The author writes clearly enough for non-lawyers without missing many of the nuances that lawyers steeped in the constitutional history

would expect.

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