"Overruled" - Book report and commentary

Just finished reading Overruled: The Long War for Control of the U.S. Supreme Court, by Damon Root. This is, essentially, a libertarian history of the US Supreme Court.

That Is, perhaps, a poor description, in the sense that it makes it sound simultaneously dry as hell and also written by a wide-eyed, sky-castle dwelling, dreamer.

Not so.

Amazon's synopsis:

Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloody age of slavery, the Civil War, and Reconstruction to its central role in today's blockbuster legal battles over gay rights, gun control, and health care reform.

It's a conflict that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows. Judicial deference is not only a touchstone of the Progressive left, for example, it is also a philosophy adopted by many members of the modern right. Today's growing camp of libertarians, however, has no patience with judicial restraint and little use for majority rule. They want the courts and judges to police the other branches of government, and expect Justices to strike down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom.

Overruled 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.

And it's actually quite interesting, or at least, I found it so.

I also found the  repeated use by the court of the reasoning expressed by Oliver Wendell Jones, Jr., in Blodgett v. Holden (1927), that

...as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.

to be, well, shocking.

So, you're telling me that the Supreme Court is supposed to be predisposed to allow Congress run roughshod over the Constitution?

Explains a lot, doesn't it?

"Judicial Deference" they call it, "Judicial Restraint."

Appalling, I call it.

This, of course, is how the Roberts Court can rule that a tax is a fine is a tax, depending on the application, and therefore is, and isn't, subject to what the Constitution says on the matter of taxes. Also, how when a law refers to "The State" it acutally means "The government at any level."

And how previous courts can hold that  marijuana grown in the backyard of a person with a legitimate prescription can somehow be held to impact "interstate commerce."

As for the book: Root writes well, presenting difficult legal concepts and arguments in a straight-forward style, making them easy to grasp.

I can't help that note that we also seem to have entered an era of Legislative Deference, in which the tools in charge of the congress will work harder to please th Imperial President than to obey the Constitution.

One thing I was surprised to learn was that, when Alan Gura took the case that would become Heller v. DC, he was not yet working with the Second Amendment Foundation, but rather for The Institute for Justice. SAF came along later, after NRA had tried to convince IJ that Heller was the wrong case at the wrong time...