Supreme Court of the United States (Third Edition)

Author: Robert Macpherson
Publisher:
Publication Date: 2005-08-20
Features: I used the opening of the preface to the previous edition as an introduction; "This is indeed the work of love." These words reflect my deep admiration for Robert Macpherson, even 30 years after his untimely death (1969). He was my doctoral advisor at Harvard University, and more importantly, he was an excellent mentor in all aspects. There were many occasions when, after his classes (I was his teaching assistant for these courses), we would stroll to a local restaurant to discuss the issues raised in class—just as Justice Cardozo pointed out, "A full life is reflected in all aspects of life." It wasn’t just out of respect and remembrance for this outstanding figure that I revised this book in this special way. The Supreme Court of the United States is justifiably regarded as a classic, and the fact that it is still being printed and used in classrooms today proves this point, while most books published in the 1960s have long been gathering dust. It is not only a concise overview of the history of the Supreme Court, but also offers a unique insight into its role in the U.S. political system with almost unparalleled clarity. Although Macpherson may be a voice from the past, what he said remains relevant today. This explains why I chose to supplement rather than fully revise Macpherson’s work. In addition to correcting several factual errors, the first seven chapters of this book remain largely as he wrote them in the late 1950s. More importantly, I have changed the titles of Chapters 6 and 7. In my own final chapter, I argue that the term "welfare state" in the original title of Chapter 6 is more suitable for the system that emerged in the United States after Lyndon B. Johnson’s "Great Society," a system consolidated by Richard Nixon. Therefore, I have replaced the original title of Chapter 6, "The Welfare State," with "The Regulated State." Obviously, Macpherson’s original title for Chapter 7, "The Modern Court and Modern America," also needs to be revised, as a generation has passed since he wrote it. Of course, I don’t want to imply that I fully agree with Macpherson’s views without any modifications, but if I did, it would become a true collaborative work. Inevitably, the development of academic research and the generational shift in perspectives lead to different methodologies. In both respects, I can take myself as an example—I focus more on slavery, viewing it as a dominant issue in the early 70 years of the Supreme Court, rather than simply as one aspect of important debates like federalism. Additionally, my view on John Marshall differs from Macpherson’s. Macpherson had a somewhat romantic view of this Chief Justice, partly because he was largely a product of the Great Depression and the New Deal era (he was born in 1916). A key theme of New Deal judicial theory was that Roosevelt simply wanted to return to Marshall’s broad and expansive nationalism, a perspective that almost unilaterally hijacked by the Republican conservatives at the beginning of the 20th century. I believe there wasn’t much continuity between Marshall and the New Deal. Of course, I have disagreements with him in other places as well. However, for the reasons mentioned above, I take this book very seriously as Macpherson’s work, not my own. My task is to update it so that it can remain useful for another third of a century. In the process of updating, I have done my best to imagine how Macpherson would have responded to the dramatic events of the four decades since the book’s publication. Fortunately, for the first 10 years of that period, we have some insight into his response, and I have drawn on some of his ideas from his writings. But for the years after his death in 1969, I can only rely on my own imaginative resources. That is to say, I am very happy to take full responsibility for the two chapters I have added. In the new Chapter 8, I mainly attempt to update the story that Macpherson began to tell, namely the Supreme Court’s role as a protector of the civil and political rights of vulnerable but often overlooked minority groups. On the other hand, Chapter 9 represents some new content that has not yet become apparent. Here, I want to argue that in many important ways, the Supreme Court’s role as a protector has been supplemented or, more accurately, replaced by a completely new role—as the "supervisor of the welfare state." I believe this function is linked to the developments that occurred in the first decade after the first edition of The Supreme Court of the United States was published. It is possible that when the Supreme Court enters the 21st century, it will attempt to return to an older role—as the "arbitrator of federalism" and the protector of state rights—opposing a central government that is constantly encroaching on [state rights]. To put it less dramatically, whether the Supreme Court will be more successful in playing this role than before remains to be seen. After these two new chapters, the reader will find the original epilogue: "The Supreme Court Today and Lessons of the Past." To maintain the spirit I hope for in this book, I have reproduced it here in its original form, though I have added my own conclusion to continue the dialogue that began 1/4 of a century ago in Cambridge. To be honest, the theme of intergenerational dialogue—its unforgettable nature, traceable to a senior professor mentoring an aspiring graduate student—resonates deeply in my personal consciousness. When I wrote these words, my younger daughter, born in 1974, had just started studying law at the University of Chicago; my older daughter, born in 1970, was teaching 19th-century American history to eighth graders in a public school in Boston. It is my deepest wish that Rachel and Meira, people of a similar age, will read this book, perhaps also providing useful teaching materials to help those much younger than them understand the epic of the U.S. constitutional system. Even if these students (appropriately) no longer accept certain views that reflect the specific intellectual journeys of Robert Macpherson and myself, I hope they will still agree that the dialogue about the historical development and normative role of the Supreme Court is a topic worth continuing to discuss.