Supreme Court

Review: We the People

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Cover image of "We the People" by Jill Lepore

We the People

We the People, Jill Lepore. Liveright (ISBN: 9781631496080) 2025.

Summary: A history of the Constitution, focusing on the amendments and how difficult it has been to amend the constitution.

Do you know what amendment took the longest time to ratify? It was the most recent, the 27th Amendment, concerning congressional pay, which took 203 years to ratify, finally in 1992. Do you know the last amendment to be proposed and ratified in modern times? It was the 26th Amendment, which was ratified in 1971, giving eighteen-year-olds the right to vote, just in time for me to vote when I turned 18! Depending on how you count, it has been 34 or 55 years since the last amendment proposed was ratified. It’s not for lack of trying, as historian Jill Lepore observes in this book. Notably the Equal Rights Amendment, broadly favored by Americans never was ratified by enough states. Although a majority would like to see this, no amendment has passed out of Congress to abolish the electoral college.

We the People is a constitutional history which focuses the history of constitutional amendments of which there have been only twenty-seven in our 250 year history. But why so few? It all comes down to Article V of the constitution. First, two thirds of both houses of congress must approve an amendment. Then either legislatures or special conventions of three-fourths of the states must ratify the amendment.

Lepore observes that amendments tend to come in clusters. The first twelve were between 1791 (the Bill of Rights, numbers One to Ten) and 1804. The next amendments, Thirteen to Fifteen, followed the Civil War, between 1865 and 1870. Then Sixteen to Twenty-One, which included Prohibition and its repeal, income tax, and women’s suffrage dated between 1913 and 1933. Finally, the most recent group came between 1951 and 1971, Amendments Twenty-Two to Twenty-Six, addressing presidential term limits, DC electors, eliminating poll taxes, presidential succession, and voting for 18-year-olds. Then there was that oddball, the 27th, on congressional pay raises, resurrected from 1789 and finally ratified in 1992.

Lepore traces the periods of amendment and the intervening periods of quiescence. Of particular interest is the growing significance of the Supreme Court, at various times treating the constitution as a living document, adapting it to changing cultural needs. Then at other times, especially more recently, originalism treats the constitution as “dead, dead, dead” in Justice Scalia’s words. All the court may do is interpret and apply it original meaning. Everything else must be addressed by Article V.

But how are amendments possible in such a polarized congress and society? And what happens when neither amendments nor court interpretations address emerging societal realities? Lepore expresses concern about the possibilities of unrest as well as moves away from constitutional democratic governance. She sees neither an activist or originalist court as the answer but a return to a more robust embrace of amendments as the needed “safety valve” that properly allows for constitutional rule that grows with the needs of the country.

She concludes:

“No constitution can be kept forever, like a butterfly under glass, tacked down with pins. In danger of wilting. To constitute is to become or establish; to amend is to mend, correct, repair, and improve. Americans might learn again to amend, or else they could invent a new instrument to guarantee liberty, promote equality, nurture families, knit communities, thwart tyranny, and avert the destruction of a habitable earth” (p. 581).

Lepore has done a tremendous work of historiography. She also has left us with good questions. But I have a hard time seeing a way forward in our current political context and that concerns me. Attempting to draft a new constitution scares me more, the implication of “invent a new instrument.” Some of the basic premises about human nature and political philosophy that the original drafters shared are no longer shared. I cannot foresee anything but chaos ensuing. It seems to me that a critical beginning is a renewed sense of shared congressional vision, leadership, and collaboration. But will we awaken to that necessity?

Review: Showdown

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Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America, Wil Haygood. New York: Vintage Books, 2016.

Summary: An account of the life of and rise to the Supreme Court of Thurgood Marshall structured around the five days of hearings in the Senate Judiciary Committee.

Probably the most shining legacy of the presidency of Lyndon Johnson were the advances he oversaw with civil rights against the opposition of southern Democrats in his own party. Among his foremost accomplishments was the appointment of the first Black Supreme Court Justice, Thurgood Marshall.

This work by Wil Haygood focuses on the showdown between Marshall and the southern members of the Senate Judiciary Committee opposed to his nomination during its hearings on the nomination before it was forwarded to the full Senate in the summer of 1967. The work is organized around the five days of hearings through which Haygood weaves the narrative of Marshall’s life. While the southern Senators on the Judiciary Committee could not block the nomination from going to the Senate, they employed strategies to slow it down and to cast sufficient aspersions on the character and judicial record of Marshall to jeopardize his confirmation.

James Eastland, the committee chairman, whose family had participated in a lynching and whose office was a shrine to the Confederacy had been thwarted in his own state by Marshall’s court efforts with the NAACP and was snubbed by Marshall, who refused to step into Eastland’s office to make a courtesy call. That office represented everything he had fought. Strom Thurmond, who had a black daughter, kept in secret until years later and Sam Ervin, known for his knowledge of the Constitution joined him. They tried to portray him soft on crime, trick him into discussing how he might rule on future cases, accused him of Communist associations and judicial activism and tried to make him look unschooled with arcane questions about the Constitution. Marshall, who had long dealt with wily white lawyers sidestepped the traps they set for him.

Against the backdrop of the hearings, Haygood tells the story of an extraordinary life. A descendent of slaves, Marshall grew up in Baltimore, went to Lincoln University as a classmate of Langston Hughes and excelled on the debate team, then to Howard University Law School. By 1936, he had joined the national staff of the NAACP, often traveling at great risk into the Jim Crow South. With the NAACP, he successfully argued 29 of 34 cases in the Supreme Court, notably Brown v. Board of Education of Topeka resulting in the desegregation of public schools. He gave critical leadership to the NAACP’s legal strategy to gain civil rights for Blacks. In 1961, President Kennedy name him to the Second Circuit Court of Appeals. In 1965, President Johnson appointed him Solicitor General, where he won 14 of 19 cases that he argued.

Haygood more briefly summarizes his work on the court, touching on the hundreds of majority opinions and hundreds more dissents that he wrote, the clerkship of future Justice Elena Kagan–more discussion of his tenure on the bench and appraisal would have been helpful in rounding out the story. Marshall stepped down in 1991, dying two years later.

I could not help but think as I read of the opposition to the confirmation recently of Justice Ketanji Brown Jackson, whose confirmation, if anything was far more of a close run thing despite legal credentials that if anything exceeded those of Marshall. It is fifty-five years later, but it appears that if anything, we have regressed as a country. A mark of the courage of both justices was that they did not relent in the face of the distortions of their records and character that they had to face. Haygood captures the fortitude of Marshall throughout his legal career and during those five days of interrogation. Perhaps someday someone, maybe even Haygood, will do the same for Justice Jackson.

Review: Notorious RBG

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Notorious RBG: The Life and Times of Ruth Bader Ginsburg, Irin Cardmon & Shana Knizhnik. New York: Dey StreetBooks, 2015.

Summary: A profile of the Supreme Court Justice, centered around her dissenting opinions read from the bench but also tracing her career, her marriage, work out routines and more, liberally illustrated with photos and images.

In the 2012-2013 session of the Supreme Court, Justice Ruth Bader Ginsburg read five of her dissents orally from the bench, a record, and perhaps a commentary of sorts on the court’s majority. She attracted the attention of feminists and one of the authors, Shana Knizhnik, whose Tumblr account, named after the deceased rapper Notorious B.I.G., Notorious RBG. This spawned a cottage industry of T-shirts, posters, and memes celebrating the diminutive yet formidable Justice.

The authors chronicle her rise, and contend that it was not always an icon of feminism. Yes, she was a pathbreaker in the legal profession, teaching at Rutgers and Columbia and co-founding the Women’s Rights Project, an analogue to the NAACP’s strategy of making incremental progress through legal precedents. This led to her appointment to the DC District Court of Appeals, and then to the Supreme Court under Bill Clinton. Throughout the time, she and others characterized her as a moderate. Only late in life, through the influence of her clerks, her senior status as a liberal on the court, and the rightward movement of the court did she become a fierce representative of the resistance.

The authors include excerpts from her dissents, striking for their readability, something she believed in. But this is not all work and no play, although RBG had a Herculean work ethic, often working late into the night on opinions. She had a storybook marriage to Marty, who she met at Harvard Law. It was a truly egalitarian marriage and one in which Marty often arranged his work around Ginsburg’s court work. He also happened to be the better cook (there is even a recipe of Marty’s in the appendix).

Then there were her relationships with other Justices, the deep respect she had for Rehnquist, despite their differences, as “the Chief,” the support she gave younger women including Justices Sotomayor and Kagan, and the unusual friendship with Antonin “Nino” Scalia. They shared a love of opera, and there is even a picture of the two riding an elephant together!

Finally, part of her endurance had to do with her physical workout routines. She could do twenty pushups! The book, which ends during the Obama administration, details her determination to keep working, particularly in a brief window of time when she was in a majority and wasn’t making her mark with her dissents. No doubt, there will be many questions about the wisdom of her choice.

What this book makes clear is that there will be no questions about the distinctive character and contribution of Justice Ginsburg on the bench, from her opinions to her jabots! While not a full-fledged biography, and clearly an account by those who liked their subject, this book, liberally illustrated with photographs and illustrations from throughout her life, demonstrate that “notorious” is not a bad word to describe RBG.

Review: What Kind of Nation

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What Kind of NationSummary: Simon’s book summarizes the struggle between John Marshall and Thomas Jefferson to define the character of American Federal government, focusing particularly on Marshall’s role in creating a strong judicial branch. A good book for anyone interested in post-Revolutionary War American history or in early constitutional law.

About the only thing John Marshall and Thomas Jefferson had in common was that both were Virginians. Jefferson was enamored of all things French while Marshall broke off talks with France following the XYZ Affair, in which French officials basically demanded bribes in order to enter into treaty negotiations with the young country. Marshall risked war rather than be party to this, although he characteristically stopped short of calling for war, showing the measured judgment that would characterize his career.

More than this Jefferson’s agrarian vision was for a limited federal government that allowed to states all power not expressly given the federal government. Likewise, Jefferson wanted to limit the Federalist dominated judiciary. Marshall had a very different vision of the needs of the country, and as Chief Justice of the Supreme Court a very different vision for the place of the court as a co-equal branch of the government rather than the poor step-child he inherited.

James F. Simon gives us a vivid account of the tension between the Jefferson the Republican and Simon the Federalist. Unlike Adams and Jefferson, these two men would never be reconciled to one another. Perhaps the most famous encounter, which Simon covers in detail is that resulting in the Marbury v. Madison decision, that uphold the Jefferson administration’s refusal to deliver Marbury’s commission to serve as Justice of the Peace of the District of Columbia. This was one of a number of last minute appointments by John Adams. While this appeared to be a victory for Jefferson, Marshall based his decision on the ruling that the provision of the Judicial Act of 1789 under which Marbury brought his suit was in fact unconstitutional. What Marshall’s decision for the Court did was establish the principle of judicial review, which allowed the Supreme Court an expanded role in determining the constitutionality of legislation passed by Congress. No longer was the court the poor step-child or “least dangerous branch.”

The book goes on to describe further clashes between the two over attempts to impeach judges including fellow justice Chase, and in the treason trial of Aaron Burr. In each instance, Simon portrays a Jefferson who attempts to use political influence toward these ends only to be countered by the careful legal reasoning of Marshall. In the Burr trial, Marshall made a key ruling against Jefferson’s claim of executive privilege in withholding key evidence against Burr. Even after Jefferson was out of office, they continued to be on opposite sides of a series of states rights cases (Martin v. Hunter’s Lessee and McCulloch v. Maryland) that established precedence of federal over state law, nurturing the tensions that would eventually flare up in America’s Civil War.

In Simon’s account, Marshall comes out looking far better than Jefferson. I suspect some historians with a stronger states rights bias would see things quite differently. But what Simon makes clear is the distinctive contribution of Marshall to this day in the form of a strong federal government, limits on executive privilege and states rights, and a doctrine of judicial review which truly established the Supreme Court as a co-equal branch of government.

Review: Supreme Justice

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Supreme Justice
Supreme Justice by Max Allan Collins
My rating: 3 of 5 stars

After a conservative administration has put in place a conservative Supreme Court, the US has overturned Roe v. Wade, implemented expanded police powers, and civil liberties are in decline. Then one night, a conservative associate justice and his clerk are having dinner when apparently a restaurant robbery goes bad and the justice is killed. Or so it seems.

Joe Reeder, a former secret service agent is called in by his best friend who is leading the investigation. Reeder took the bullet that saved the conservative president’s life, a president whose policies he detested. Now, as he looks at the death of a justice who overturned Roe v. Wade, he discovers that this was no ordinary robbery but an assassination. Another follows and it becomes clear that this is a conspiracy that originates from somewhere within the government, intent on changing the court’s composition now that a liberal president is in office.

This is a classic “trust no one” plot where Reeder and his partner, Patti Rogers (who is not certain she can trust Reeder at points) must attempt to uncover and bring down the conspiracy before further deaths transpire without tipping off someone close to them that is part of the conspiracy.

The book’s a page-turner, a diverting read with an exciting end that keeps you on the edge of your seat. A perfect vacation book, which this was for me. It’s not great writing necessarily and some elements such as the overturning of Roe v. Wade (essential to the plot) may stretch plausibility. But if you like legal thrillers and don’t overly care about such matters, this is a diverting read.

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