This book, reviewed in the New York Times on Sunday, and written by an eminent historian presidential biographer, is a history and critique of the Supreme Court. I’ve read it. The only thing I learned is that there is still at least one historian who is stuck in a 1930s time warp, in which the history of the Court is a battle between evil reactionaries who oppose “Progressive” legislation and brave, goodhearted liberals who support such legislation. Every hoary Progressive/New Dealer myth about the Supreme Court and its Justices is trotted out, every liberal shibboleth of the past seventy years repeated.
Consider Burns’s depiction of the Justices the early 20th century. Holmes, Brandeis, and Harlan were the liberal heroes, everyone else the reactionary villains.
Thus, Holmes was the “great dissenter” who pitted “pragmatism against conservative dogma.” No mention of his hostility to African-American rights, support for eugenics, and so forth. John Marshall Harlan, who helped introduce the liberty of contract doctrine to the Supreme Court, and wrote one of the most important liberty of contract cases, Adair v. United States, is anachronistically described as a “liberal.” Brandeis was “an exquisitely tolerant, compassionate and wordly man” with a “zeal for freedom … in his blood.”
The rest of the Court, however, adopted the late Justice Stephen Field’s “laissez-faire absolutism.” William Day (who dissented in Adair) was a “reliable ally of the court’s conservative phalanx.” All of the six Justices appointed by William Howard Taft were “stout conservatives.” William Van Devanter was the “commander-in-chief of judicial reaction.” George Sutherland was the leader of the Court’s “extreme right-wing.” Pierce Butler, who was perhaps the strongest opponent of the excesses of Prohibition enforcement and the only dissenter in Buck v. Bell (coerced sterilization), is reduced to a right-wing railroad lawyer who showed no “regard for dissidents, or for blacks or workers.” And so on.
No serious modern historian of the Court would recognize these cartoon characters. But this book, I’m afraid, is not a serious history.