My Review of Stuart Banner's " The Most Powerful Court in the World:...."

 A History of the Supremes (Not the Motown Group)

UCLA law professor and former Supreme Court clerk Stuart Banner has written an encyclopedic history of the Supreme Court of the United States. He not only covers the case law, but he also covers the personalities, the politics inside and outside the court, from its earliest beginnings in the 1790’s to the present. In the interest of full disclosure, I had a very small adventure with the Supreme Court as a plaintiff in Yahr v. Resor (4th Circuit 1970) and having cert. denied in 1971.

What Banner rightly argues, the Supreme Court always was and always is a political body. When the Senate was controlled by a party not in the White House, appointments were often delayed until the next election. Merrick Garland’s nomination in 2016 was not an exception to history. As the old wag goes, “the Supreme Court follows the election returns.”

What I found interesting was Banner’s discussion of the 1925 judicial reforms, authored by Chief Justice Howard Taft and adopted by Congress. Those reforms enabled the Supreme Court to reject cases coming before it and it enabled the court to leave a rather dingy office space in the Senate office building to the Greco-Roman shrine it occupies today. According to Banner the ability of the court to choose its cases enabled it to take cases, many concerning civil rights, that it wouldn’t have previously taken because of a very crowded docket. Further he notes that the Republican Administrations in the 1920’s appointed several moderate justices, Harlan Fiske Stone, Charles Evans Hughes, and Owen Roberts. Those three justices played a meaningful role in ratifying the New Deal legislation of the late 1930’s.

While Banner applauds and criticizes many Supreme Court cases, he is silent on why the Supreme Court, from Marberry v. Madison in 1801 to Dred Scott in 1857, the Supreme Court did not overturn a single act of Congress. While after the Civil War and to this day many congressional acts were overturned. So, why was the court, so deferential to the congress in the early 1800’s. Banner rightly mentions Gibbons v. Ogden ((1824) which established federal supremacy over interstate commerce, but he fails to mention its huge economic impact in opening the Midwest and establishing New York City as the nation’s leading port.

He also doesn’t criticize Euclid v. Ambler Realty (1926) which ratified local zoning and, in my opinion, a regulatory taking; Berman v. Parker (1954) and Kelo v. New London (2005) which enabled government to seize private property and turn it over to another private party, not for direct use by the government for a public purpose.  He does note the extreme extension of the commerce power in Wickard v. Filburn (1942) which prevented a farmer from growing crops for his own use, hardly interstate commerce. My guess is that the case would be decided differently today. 

Lastly, he speaks favorably of Chevron v. NRDC (1984) which gave huge discretion to administrative agencies to go beyond the clear intent of Congress. Fortunately, that was overturned this year in Loper Bright Enterprises v. Raimundo. I do note that his book went to press ahead of that case.

These criticisms aside, Banner clearly explains how and why the Supreme Court overturned much of Reconstruction and how and why much of the rights we enjoy today were creatures of Supreme Court actions from the 1920’s on. However, although he discusses how the Supreme Court functioned as a super-legislature in overturning laws protecting workers and individuals, he is less critical of the court creating rights without any direct constitutional underpinning. The controversy over Roe v. Wade and its repeal is an exemplar of this. This is a book for supreme court nerds, and if you are one, it is well worth the long read.

My Amazon Review of John Oller's "White Shoe: How a New Breed of Wall Street Lawyers Changed Big Business and the American Century"

Super Lawyers of the Gilded Age

Retired Wall Street lawyer John Oller takes us back to the turn of the 20^th Century when the modern law firm was created to service the giant industrial corporations that were taking form. Among the IVY League WASP lawyers we see Paul Cravath fresh after his winning the “current wars” for his client George Westinghouse against Thomas Edison create the model of today’s law firm. He hires associates straight out of the best law schools, trains them and puts them on a partnership track. He also creates a profit sharing system among the partners. More than 100 years later this is how corporate law firms work.

We meet Frank Stetson, JP Morgan’s lawyer, future Chief Justice of the Supreme Court Charles Evans Hughes, George Wickersham who would become William Howard Taft’s attorney general who brings a multitude of anti-trust lawsuits, and William Nelson Cromwell who pretty much is responsible for a coup in Panama that leads to the building of the Panama Canal.  We also meet a young John Foster Dulles, who would later run Sullivan & Cromwell and be Eisenhower’s secretary of state.

There is also one Jewish lawyer in this telling. He is Samuel Untermyer  who after making a fortune on Wall Street, he becomes a leading muckraker taking on the titans of Wall Street, including JP Morgan in very famous congressional hearing.

Out of their labors we see formulated the notions of the “rule of reason” in antitrust cases first enunciated by William Howard Taft when he was an appellate judge, the consent decree and the business judgement rule for corporate officers and directors. As the story evolves most of Oller’s protagonists make peace with the progressives they rub up against and as such they become part and parcel with the newly emerging administrative state. Of course the emergence of the administrative state would become a great boon to the super lawyers.

We also see the growing internationalist outlook among Oller’s Wall Street lawyers. They push for intervention on the Allies side in World War I and actively support the creation of the League of Nations. A generation later they would form the backbone of Wendell Willkie’s campaign for the presidency. Oller bemoans the fact that Wall Street lawyers are far less involved in Washington D.C. then they were 100 years ago. Instead we see Wall Street investment bankers taking their place.

Oller has written an interesting book highlighting the merger between law and capital. At time he gets bogged down in too many details, but on the whole his book makes for an interesting history. 

The full Amazon URL appears at: https://www.amazon.com/review/R1DA0ATSMPIED3/ref=pe_1098610_137716200_cm_rv_eml_rv0_rv

My Amazon Review of Brad Snyder's "The House of Truth: A Washington Political Salon and the Foundations of American Liberalism"

The Birth of the Administrative State

University of Wisconsin Law School professor Brad Snyder has written a very long book (824 pages in the print edition) on the origins of American liberalism. He tells his story through the collection of people who lived in and/or visited a house located at 1727 19^th Street in the DuPont Circle neighborhood of Washington D.C. between 1912 -1919 and he then follows them through the early 1930’s.  Here we meet such liberal icons Justice Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, Herbert Croly, Walter Lippmann (in his early life) and the sculptor Gertzon Borglum (think Mount Rushmore).

All of them were upset with the more conservative strain of the Taft Administration as compared to Teddy Roosevelt’s and all of them want to move  away from the laissez faire philosophy of the 19^th century and to move towards a regulated economy run by disinterested experts. Their attitudes were in response to the emergence of an industrial society that was a far cry from the Jeffersonian vision of a democracy based on yeoman farmers. Simply put they wanted to use Hamiltonian means to achieve liberal ends.

It is all so remarkable to read that the Washington D.C. of those days was a very small town and many of the residents and visitors had ready access to the leading figures of government from the president on down. And boy did they use that access, especially during the Wilson Administration. We see Frankfurter running the War Labor Board, Borglum investigating fraud in aviation procurement and Lippmann writing what was to become Wilson’s Fourteen Points and become part of the U.S. negotiation team at Versailles.

Snyder shows how Brandeis and Frankfurter influenced Holmes to become a leading civil libertarian on the Court as they applaud his pro-regulatory views. The book spends far too much time on the liberal cause celeb of the 1920s, the Sacco-Vanzetti case.  To be sure in a strict legal sense they were victims of a miscarriage of justice but as Snyder tells us in an endnote, modern scholarship suggests that Sacco was guilty. He should have been more honest in noting that upfront.

Snyder also shows us how Frankfurter sent his best students to be law clerks for the Supreme Court. One notable success was Dean Acheson Truman’s Secretary of State who clerked for Brandeis. Two others mentioned did not turn out as well. Tommy “the Cork” Corcoran clerked for Holmes was an architect of the New Deal, but later be became one of Washington’s great “fixers.” Many followed in that tradition by going to Washington to do good and ended up doing well. The other clerk he sent to Holmes was Alger Hiss, the notorious Soviet Spy.

What I liked about the denizens of 1727 19^th Street was that unlike too many of today’s progressives, they really believed in free speech and that Frankfurter and Brandeis were full-throated supporters of the Zionist project. Although Snyder carefully notes Lippmann’s move to the Right, he hardly spends time on how later in life Frankfurter became one of the leading conservatives on the Supreme Court. He stayed true to his belief that courts should give great deference to elected legislatures. Finally Snyder doesn’t deal with the dark side of the administrative state where nameless and faceless bureaucrats, many with heavy political agendas, dictate practically every nook and cranny of American life.

Nevertheless for readers who slog through the book, they will get a real sense of ferment of ideas that made liberalism a major force in our society.

The full amazon URL appears at: https://www.amazon.com/review/R1FN340T5FBJXM/ref=pe_1098610_137716200_cm_rv_eml_rv0_rv