While the title of this book indicates a legal history of the United States supreme court, the book is far more than a jurisprudential analysis of the highest court in the United States.
Banner, a law professor at the University of California, sets out to avoid the traditional legal history of the court and instead writes a trilateral history, a consideration of the court’s decisions, the lives of its justices and an analysis of the relevant contemporaneous political and societal influences.
Banner argues that it is not possible to consider the court in isolation and during periods of its history, the court was the driving force which directed the course of the United States.
An example of this impactful influence can be seen in the 1803 decision of Marbury v Madison which has become legendary in the canon of constitutional jurisprudence in which the court recognised the judiciary’s power of judicial review.
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Dred Scott
Banner notes that the decision of Chief Justice Roger Taney in Dred Scott v Sandford (1857) is often cited as one of the most shameful opinions in the history of the court.
In Dred Scott, the court ruled that people of African descent, whether enslaved or free, were not and could never be citizens of the United States and therefore had no standing to sue in federal court. Dred Scott would go on to play a significant role in hastening the onset of the American Civil War in 1861.
During the Chief Justiceship of Earl Warren (1953-1969), the court ushered in the most liberal period of its history. During this period, the court determined seminal cases such as Brown v Board of Education (1954) which banned the segregation of public schools, Miranda v Arizona (1966) which ruled that the police must warn a person of their constitutional rights, before conducting an interrogation and New York Times Co. v Sullivan (1964) which ruled the freedom of speech protections in the First Amendment to the constitution limited the ability of public officials to sue for defamation.
The author notes that the US supreme court is not apolitical. The court is exposed to politics in a number of different ways, including through the appointment of its justices.
When a vacancy arises, the president nominates a candidate for appointment and the Senate confirms their appointment. Traditionally, Republican presidents have appointed conservative justices while Democratic presidents have appointed more liberally minded members of the bench.
Roe v Wade
Arguably the most controversial decision of the court in the past century concerned abortion rights. In Roe v Wade (1973) the court found that the US constitution protected the right to have an abortion before the point of foetal viability.
Given the polarisation of views on social issues, there was an immediate call for the overturn of Roe. The US constitution, similar to other modern constitutions, can evolve over time and the court can revisit its earlier decisions if the make-up of its bench shifts and social norms evolve.
Following a number of Republican appointed justices, the court now leans towards a conservative interpretation of the constitution. In 2022, the court was prepared to reconsider Roe in Dobbs v Jackson Women’s Health Organization.
In Dobbs, the court ruled that the constitution does not confer a right to abortion, thereby overruling the controversial decision in Roe. The decision in Dodds has caused a legal and social cataclysm in the United States.
Several States moved quickly to ban abortion, and the Roe/ Dodds line of case law is likely to reverberate in the United States for many years to come.
The author brings the history of the court up to the present and considers a number of appeals to the court, brought by President Donald Trump, on various issues including the 2020 United States presidential election. Banner notes that Trump has a very poor success rate before the court.
While this is certainly an enlightening history of the court, there are aspects of the court’s history which are considered in a summary manner only. For example, the book concentrates on the liberal period of the Warren Court but pays little attention to the Watergate scandal and its political and legal fallout.
That said, Banner, has authored an excellent, comprehensive and engaging one-volume history of, as the title enunciates, possibly the most powerful court in the world.
Dr James Meighan is a practising lawyer and holds a PhD in constitutional history from the University of Limerick.
