The United States Supreme Court has long been of absorbing interest not only to litigants but to sitting and aspiring presidents, members of Congress, state officials, journalists, polemicists, and, occasionally, the electorate. Remarkably, as Charles Warren’s rich and still essential The Supreme Court in United States History demonstrated seventy-five years ago, the recorded commentary on the Court through much of the nineteenth century, with but a handful of exceptions (1), derived almost entirely from such sources. Published matter about the Court was mainly ad hoc: event-driven, advocatory, and frequently partisan.

Systematic study of the Court began little more than a century ago as history, law, and political science emerged as professional academic disciplines. Ever since, these disciplines have been connected by a common interest: judicial decisions, the justices who make them, and the institution within which they work. Historians and students of politics in particular have wanted to know what the Court has done, not because of the client-centered necessity to win cases but because of the reason-centered desire to comprehend the Court as a component of the political system and as a force in developing the nation. Moreover, they have sought to proceed beyond or beneath the “what” by seeking also to explain judicial decisions, to probe the why as well. This double-barreled objective accounts for much of the multidisciplinary character of judicial studies today (2).

Literature about the Supreme Court reflects at least four verities. First, to write about the Court is almost inescapably to write about the Constitution, just as to write about the Constitution necessitates writing about the Court. This has been true since the justices first engaged in constitutional interpretation in Chisholm v. Georgia (3).

Second, to write about the Supreme Court is to write about politics. Judicial decisions do more than settle disputes between litigants; they affect the allocation of power and resources in society. This political dimension to the Court’s work has kept it mired in controversy from the beginning—indeed, from before the beginning. One has only to examine the charges levied against the proposed Supreme Court by “Brutus” (probably New York’s Robert Yates) during the debates over ratification of the Constitution in 1787-88 (4).

Third, even the contemporary work of the Court is infused with history because the Court does not write on a blank slate. Constitutional interpretation, which accounts today for about half of the Court’s decisions each term, entails examination of a document from history in the light of what may be a thick gloss of case-law interpretation on that history.

Fourth, as with any field of study linked to issues that divide and perplex a people, scholarly writing about the Court is not always completely “detached” or neutral. Like the judges themselves, authors may react to existing law and scholarship by viewing it through the lens of their own values and experiences. Thus, the “progressive school” during much of this century looked askance at a bench between 1890 and 1937 that emphasized the importance of property rights and that was constitutionally skeptical of much social and economic regulation. Since 1937 programmatic liberalism has looked approvingly at an activist bench solicitous of nonproprietarian aspects of civil liberties and civil rights. Its opponents have stressed judicial restraint or deference and the need for elected representatives, not appointed judges, to make public policy. A political jurisprudence school has drawn from all three in emphasizing the primacy of a judge’s attitudes, not the law, in explaining judicial decisions. Most recently, various revisionist camps 1) doubt whether the pre-1937 bench was truly a determined agent of rampant capitalism, 2) believe that legal rules have been too much neglected in accounting for what courts do, and/or 3) judge the legitimacy of judicial decisions against a standard of Original Intent. Justice William O. Douglas, who served longer than any of the other 107 justices, once declared (with only slight exaggeration), “all constitutional questions are always open” (5). Apparently, all assessments of the Court and its work remain open too.

The vast body of Supreme Court literature divides easily into six parts: constitutional interpretation, general and period history, biography, case studies, judicial process, and reference.

Constitutional Interpretation

The first category includes the decisions themselves, a reminder that the Supreme Court acts in the context of deciding cases. The United States Reports is the official collection of decisions; the same appear sooner in several commercial editions and online at the Legal Information Institute’s site (http://supct.law.cornell.edu/supct/). As an aid to understanding decisions, commentaries analyze cases and point out legal trends. Henry J. Abraham and Barbara A. Perry’s Freedom and the Court is topically organized while the two volumes of The Constitution in the Supreme Court by David P. Currie proceed chronologically. The series United States Constitutional and Legal History, edited by Kermit L. Hall, reprints more than 450 articles. Analysis of the Constitution in light of significant Supreme Court decisions is available online at <http://www.access.gpo.gov/congress/senate/constitution/index.html>.

Disagreement over how the Constitution should be interpreted and the role the Court should play in the political system—the Constitution, after all, does not say—continues to churn in both scholarly and official circles. Consider, for example, Stuart Taylor, Jr., “Meese v. Brennan”; James F. Simon, The Center Holds: The Power Struggle Inside the Rehnquist Court; The Tempting of America by former judge (and rejected Supreme Court nominee) Robert H. Bork; Rethinking Constitutional Law by Earl M. Maltz; and Antonin Scalia, A Matter of Interpretation. In addition to an essay by Justice Scalia, this last listing contains comments by critics Laurence Tribe and Ronald Dworkin, among others. The Nature of the Judicial Process by Benjamin Cardozo (later appointed to the Supreme Court) remains an insightful look at the interpretative process by a sitting state judge.

General and Period History

Aside from Charles Warren’s account, mentioned previously, essential histories include Herman Belz, et al., The American Constitution; Robert G. McCloskey’s The American Supreme Court; and William M. Wiecek’s Liberty Under Law. Also serviceable are The Struggle for Judicial Supremacy by Robert H. Jackson, written just prior to his appointment to the Supreme Court; Alpheus Thomas Mason, The Supreme Court from Taft to Burger; and, for the formative period, The Role of the Supreme Court in American Government and Politics 1789-1835 by Charles Grove Haines. Seminal articles by a pioneering scholar of the Court are found in American Constitutional History: Essays by Edward S. Corwin, Alpheus Mason and Gerald Garvey, eds. Chief Justice William Rehnquist has made a contribution as well: The Supreme Court: How It Was, How It Is.

Two works lie outside the scholarly mainstream: History of the Supreme Court of the United States by Gustavus Myers presents a Marxist perspective; William Winslow Crosskey’s Politics and the Constituton in the History of the United States is a lexicographical analysis, concluding, among other things, that the Court from the outset deliberately narrowed the sweep of national authority intended by the framers.

Much writing about the Court proceeds by court period, as defined by a chief justice, as in the “Burger Court.” This is done not because chiefs necessarily dominate “their” Courts—they usually do not—but because it is convenient and because certain issues are often more closely identified with one “Court” than another. This is the pattern of The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which has yielded nine volumes since the first, Julius Goebel’s Antecedents and Beginnings to 1801. Other volumes in this series are: George Lee Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15 (vol. ii); G. Edward White, The Marshall Court and Cultural Change, 1815-35 (vols. iii and iv); Carl B. Swisher, The Taney Period, 1836-64 (vol. v); Charles Fairman, Reconstruction and Reunion, 1864-88 (vols. vi and vii, on the Chase and Waite Courts); Charles Fairman, Five Justices and the Electoral Commission of 1877 (supp. to vol. vii); Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910 (vol. viii, on the Fuller Court); and Alexander M. Bickel and Benno C. Schmidt, Jr., The Judiciary and Responsible Government, 1910-21 (vol. ix, on the White Court).

Less ambitious in length and therefore more accessible to the general reader is a newer series, Chief Justiceships of the United States Supreme Court, under the general editorship of Herbert A. Johnson. Volumes to date include William A. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth; Herbert A. Johnson, The Chief Justiceship of John Marshall, 1801-1835; James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910; and Melvin I. Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941-1953. For meticulous study of the pre-Marshall bench, see Maeva Marcus, ed., The Documentary History of the Supreme Court of the United States, 1789-1800.

Biographies

Judicial biographies have proven to be an unusually fruitful source not merely for information about particular justices but about the internal dynamics of the Court and changes in constitutional doctrine. Alpheus Thomas Mason’s Harlan Fiske Stone was hardly the first such biography but set the standard for all that have followed. Mason had access to, and reprinted, many internal memoranda among the justices, including material written by (and about) members of the Court who were sitting when the book was published. The Stone book sparked, but did not end, a debate over the timing of access to a justice’s papers. On a list of biographies from across the Court’s history are Mason’s two other contributions to this field, Brandeis: A Free Man’s Life and William Howard Taft: Chief Justice; Loren P. Beth, John Marshall Harlan: The Last Whig Justice; Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court; H. N. Hirsch, The Enigma of Felix Frankfurter; Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law; John C. Jeffries, Justice Lewis F. Powell, Jr.; Paul Kens, Justice Stephen Field; C. Peter Magrath, Morrison R. Waite; Donald G. Morgan, Justice William Johnson: The First Dissenter; Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice; Roger K. Newman, Hugo Black; John Niven, Salmon P. Chase; Merlo J. Pusey, Charles Evans Hughes; Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court; James F. Simon, Independent Journey: The Life of William O. Douglas; Jean Edward Smith, John Marshall: Definer of a Nation; Philippa Strum, Louis D. Brandeis; Carl B. Swisher, Roger B. Taney; Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court; G. Edward White, Justice Oliver Wendell Holmes; and Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren Court.

Case Studies

Like biography, the case study is another path to understanding the Supreme Court. Analytical narratives of a single case or group of similar cases depict litigation in the context of a particular era with its judicial personalities and contending political forces. John Garraty, ed., Quarrels That Have Shaped the Constitution contains essays about landmark cases such as Marbury v. Madison (6) and McCulloch v. Maryland (7). Book-length studies include Anthony Lewis’s Gideon’s Trumpet (8); Richard C. Cortner, The Kingfish and the Constitution (9); Don E. Fehrenbacher, The Dred Scott Case (10); Barbara Hinkson Craig, Chadha (11); Maeva Marcus, Truman and the Steel Seizure Case (12); Stephen B. Wood, Constitutional Politics in the Progressive Era: Child Labor and the Law (13); David Rudenstine, The Day the Presses Stopped (14); C. Peter Magrath, Yazoo: Law and Politics in the New Republic (15); Edward J. Cleary, Beyond the Burning Cross (16); David R. Manwaring, Render Unto Caesar: The Flag-Salute Controversy (17); Wayne R. Swanson, The Christ Child Goes to Court (18); David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (19); Clement Vose, Caucasians Only (20); Charles A. Lofgren, The Plessy Case (21); Richard F. Kluger, Simple Justice (22); Bernard Schwartz, Behind Bakke (23); and Melvin I. Urofsky, Affirmative Action on Trial (24).

Judicial Process

A fifth body of literature focuses on the judicial process: institutional procedures and relationships to state courts and the lower federal courts and to the wider political system. Lawrence Baum’s The Supreme Court and Henry J. Abraham’s The Judicial Process emphasize organization and intercourt relations; the latter makes cross-national comparisons, too. On the federal courts generally, see Deborah J. Barrow, et al., The Federal Judiciary and Institutional Change and C. K. Rowland and Robert A. Carp, Politics and Judgment in Federal District Courts. Decision-making by the contemporary bench unfolds in Bernard Schwartz’s Decision. Deciding to Decide by H. W. Perry, Jr., is a look at the Court’s enviable authority—largely acquired by act of Congress in 1925—to select cases for decision. Robert J. Steamer’s Chief Justice and Robert G. Seddig’s “John Marshall and the Origins of Supreme Court Leadership” lend valuable historical perspective. Other studies such as William Lasser’s The Limits of Judicial Power portray the consequences of decisions for the political process and governmental institutions, including the Court itself, and demonstrate the Court’s remarkable political resiliency. Walter F. Murphy’s Elements of Judicial Strategy examines both opportunities and limitations that justices encounter in working their will on the Court.

In Justices and Presidents, Henry J. Abraham chronicles the politics of nomination and confirmation for all justices from President Washington’s day through President Bush’s appointment of Justice David Souter in 1990. Sheldon Goldman’s Picking Federal Judges accounts for appointments to the lower courts from Franklin Roosevelt through Ronald Reagan. The extent to which the Court responds to the cycles of partisan politics is the subject of John B. Taylor, “The Supreme Court and Political Eras” and John B. Gates, The Supreme Court and Partisan Realignment.

Reference

Finally, a wealth of reference materials supports each of the foregoing categories. General information on nearly every aspect of the Court’s work, including landmark decisions, is easily accessible in two publications: Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States, and Congressional Quarterly’s Guide to the U.S. Supreme Court. Even more encompassing is Robert J. Janosik, ed., Encyclopedia of the American Judicial System. Lee Epstein, et al., The Supreme Court Compendium is a compact source for Supreme Court statistics. Bibliographic sources include Fenton S. Martin and Robert U. Goehlert, The U.S. Supreme Court: A Bibliography and the more concise The Supreme Court and the American Republic by D. Grier Stephenson, Jr. Biographical essays are found in Leon Friedman and Fred L. Israel, The Justices of the United States Supreme Court 1789-1995. Briefer accounts appear in Melvin I. Urofsky, The Supreme Court Justices: A Biographical Dictionary and Clare Cushman, ed., The Supreme Court Justices: Illustrated Biographies, 1789-1993.

These and other resources provide a political as well as a scholarly benefit. The Court’s visibility in the literature may have partly substituted for the direct political accountability that the framers provided for the executive and legislative branches but not for the Supreme Court.

Endnotes

1. For example, the North American Review, which began publication in 1815, gave increased attention to social and political movements as the years passed. The American Law Magazine, the American Law Register, and the American Law Review began publication in 1843, 1852, and 1866, respectively.

2. Eliot E. Slotnick, “Judicial Politics,” in Political Science: Looking to the Future, vol. 4, ed. William Crotty (Evanston, Ill.: Northwestern University Press, 1991), 67.

3. 2 U.S. (2 Dall.) 419 (1793). A Supreme Court decision is referenced through its citation in the United States Reports. Until 1875, the Reports were referred to by the name of the Court’s reporter, with his name usually abbreviated. Beginning with volume 91 in 1875 the reports have been cited by volume number and “U.S.” followed by the page in that volume on which the case begins and the year in which it was decided. For convenience the “U.S.” designation has been added to citations of cases decided before 1875, as shown in this endnote.

4. Yates’s “Letters of Brutus” appear as an appendix in Edward S. Corwin, Court Over Constitution (Princeton: Princeton University Press, 1938); excerpts are reprinted in Alpheus Thomas Mason and Donald Grier Stephenson, Jr., American Constitutional Law: Introductory Essays and Selected Cases, 11th ed. (Upper Saddle River, NJ: Prentice Hall, 1996), and are paired with Alexander Hamilton’s reply to Yates in the more familiar Federalist, No. 78. The eighty-five essays by Hamilton, James Madison, and John Jay that comprise The Federalist Papers are available in numerous editions. Time has accorded this American contribution to political theory something approaching official status.

5. Gideon v. Wainwright, 372 U.S. 335, 346 (1963) (concurring opinion).

6. 5 U.S. (1 Cranch) 137 (1803).

7. 17 U.S. (4 Wheat.) 316 (1819).

8. Gideon v. Wainwright.

9. Grosjean v. American Press Co., 297 U.S. 233 (1936).

10. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

11. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

12. Youngstown Co. v. Sawyer, 343 U.S. 579 (1952).

13. Hammer v. Dagenhart, 247 U.S. 251 (1918); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).

14. New York Times Co. v. United States, 403 U.S. 713 (1971) (the Pentagon Papers Case).

15. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).

16. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

17. Minersville School District v. Gobitis, 310 U.S. 586 (1940); West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

18. Lynch v. Donnelly, 465 U.S. 668 (1984).

19. 410 U.S. 113 (1973).

20. Shelley v. Kraemer, 334 U.S. 1 (1948).

21. Plessy v. Ferguson, 163 U.S. 537 (1896).

22. Brown v. Board of Education (I and II), 347 U.S. 483 (1954); 349 U.S. 294 (1955).

23. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

24. Johnson v. Transportation Agency, 480 U.S. 616 (1987).

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Fiss, Owen M. Troubled Beginnings of the Modern State, 1888-1910. New York: Macmillan, 1993.

Friedman, Leon and Fred L. Israel, ed. The Justices of the Supreme Court: Their Lives and Major Opinions. Rev. ed. 5 vols. New York: Chelsea House Publishers, 1995.

Garraty, John A., ed. Quarrels that Have Shaped the Constitution. Rev ed. New York: Random House, 1987.

Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Lisa Drew Books, 1994.

Garvey, Gerald and Alpheus T. Mason, eds. American Constitutional History: Essays by Edward S. Corwin. New York: Harper and Row, 1964.

Gates, John B. The Supreme Court and Partisan Realignment: A Macro-and Microlevel Perspective. Boulder: Westview Press, 1992.

Goebel, Julius. Antecedents and Beginnings to 1801. New York: Macmillan, 1971.

Goldman, Sheldon. Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan. New Haven: Yale University Press, 1997.

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Jeffries, John C. Justice Lewis F. Powell, Jr. New York: Charles Scribner’s Sons, 1994.

Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801-1835. Columbia: University of South Carolina Press, 1997.

Kens, Paul. Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age. Lawrence: University Press of Kansas, 1997.

Kluger, Richard. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Knopf, 1976.

Lasser, William. The Limits of Judicial Power: The Supreme Court in American Politics. Chapel Hill: University of North Carolina Press, 1988.

Lewis, Anthony. Gideon’s Trumpet. New York: Random House, 1964.

Lofgren, Charles A. The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press, 1987.

Magrath, C. Peter. Morrison R. Waite: The Triumph of Character. New York: Macmillan, 1963.

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Maltz, Earl M. Rethinking Constitutional Law: Originalism, Interventionism, and the Politics of Judicial Review. Lawrence: University Press of Kansas, 1994.

Manwaring, David R. Render Unto Caesar: The Flag-Salute Controversy. Chicago: University of Chicago Press, 1962.

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———. Truman and the Steel Seizure Case: The Limits of Presidential Power. New York: Columbia University Press, 1977.

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———. The Marshall Court and Cultural Change, 1815-35. New York: Macmillan, 1988.

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Court Case References

A Supreme Court decision is referenced through its citation in the United States Reports. Until 1875, the Reports were referred to by the name of the Court’s reporter, with his name usually abbreviated. Beginning with volume 91 in 1875 the reports have been cited by volume number and “U.S.” followed by the page in that volume on which the case begins and the year in which it was decided. For convenience the “U.S.” designation has been added to citations of cases decided before 1875.

D. Grier Stephenson, Jr. is the Charles A. Dana Professor of Government at Franklin and Marshall College and the editor of An Essential Safeguard: Essays on the United States Supreme Court and its Justices (1991).