Judges on Judging

Based on the highly successful Views from the Bench, this comprehensive collection of essays by Supreme Court justices and federal district judges in the United States looks at how they approach their function as judges and the role of the judiciary in the American constitutional system. O'Brien contributes to the ongoing debate over off-the-bench commentaries and encourages readers to think about the qualities of judges and the role of courts in American politics.

Acknowledgments

v

(6)

Preface

xi

PART I Judicial Review and American Politics: Historical and Political Perspectives

1

(28)

Introduction

1

(6)

I. The Doctrine of Judicial Review

7

(13)

Mr. Marshall

Mr. Jefferson

Mr. Marbury

CHIEF JUSTICE WARREN E. BURGER Supreme Court of the United States

2. The Supreme Court in the American System of Government

20

(9)

JUSTICE ROBERT H. JACKSON Supreme Court of the United States

PART II The Dynamics of the Judicial Process

29

(106)

Introduction

29

(24)

3. Advice and Consent in Theory and Practice

53

(10)

JUDGE ROGER J. MINER United States Court of Appeals, Second Circuit

4. The Adversary Judge: The Experience of the Trial Judge

63

(8)

JUDGE MARVIN E. FRANKEL United States District Court, Southern District of New York

5. What I Ate for Breakfast and Other Mysteries of Judicial Decision Making

71

(6)

JUDGE ALEX KOZINSKI United States Court of Appeals, Ninth Circuit

6. Whose Federal Judiciary Is It Anyway?

77

(6)

JUDGE STEPHEN REINHARDT United States Court of Appeals, Ninth Circuit

7. What Really Goes On at the Supreme Court

83

(4)

JUSTICE LEWIS F. POWELL JR. Supreme Court of the United States

8. The Supreme Court's Conference

87

(4)

CHIEF JUSTICE WILLIAM H. REHNQUIST Supreme Court of the United States

9. Deciding What to Decide: The Docket and the Rule of Four

91

(8)

JUSTICE JOHN PAUL STEVENS Supreme Court of the United States

10. The Role of Oral Argument

99

(4)

JUSTICE JOHN M. HARLAN II Supreme Court of the United States

11. Precedent and Policy: Judicial Opinions and Decision Making

103

(10)

CHIEF JUSTICE WALTER V. SCHAEFER Supreme Court of Illinois

12. The Office of the Chief Justice:

113

(22)

Warren E. Burger and the Administration of Justice

JUDGE EDWARD A. TAMM United States Court of Appeals, District of Columbia Circuit

JUSTICE PAUL C. REARDON Supreme Judicial Court of Massachusetts

PART III The Judiciary and the Constitution

135

(76)

Introduction

135

(6)

13. The Notion of a Living Constitution

141

(11)

CHIEF JUSTICE WILLIAM H. REHNQUIST Supreme Court of the United States

14. A Relativistic Constitution

152

(11)

JUDGE WILLIAM WAYNE JUSTICE United States District Court, Eastern District of Texas

15. The Jurisprudence of Judicial Restraint: A Return to the Moorings

163

(12)

JUDGE J. CLIFFORD WALLACE United States Court of Appeals, Ninth Circuit

16. Tradition and Morality in Constitutional Law

175

(7)

JUDGE ROBERT H. BORK United States Court of Appeals, District of Columbia Circuit

17. What Am I, a Potted Plant? The Case against Strict Constructionism

182

(5)

JUDGE RICHARD A. POSNER United States Court of Appeals, Seventh Circuit

18. Originalism: The Lesser Evil

187

(8)

JUSTICE ANTONIN SCALIA Supreme Court of the United States

19. The Constitution: A Living Document

195

(5)

JUSTICE THURGOOD MARSHALL Supreme Court of the United States

20. The Constitution of the United States: Contemporary Ratification

200

(11)

JUSTICE WILLIAM J. BRENNAN JR. Supreme Court of the United States

PART IV The Judiciary and Federal Regulation: Line Drawing and Statutory Construction

211

(28)

Introduction

211

(10)

21. Some Reflections on the Reading of Statutes

221

(9)

JUSTICE FELIX FRANKFURTER Supreme Court of the United States

22. What Does Legislative History Tell Us?

230

(9)

JUDGE FRANK H. EASTERBROOK United States Court of Appeals, Seventh Circuit

PART V Our Dual Constitutional System: The Bill of Rights and the States

239

(38)

Introduction

239

(6)

23. The Bill of Rights

245

(8)

JUSTICE HUGO L. BLACK Supreme Court of the United States

24. Guardians of Our Liberties--State Courts No Less Than Federal

253

(8)

JUSTICE WILLIAM J. BRENNAN JR. Supreme Court of the United States

25. First Things First: Rediscovering the States' Bills of Rights

261

(8)

JUSTICE HANS A. LINDE Oregon State Supreme Court

26. Trends in the Relationship between the Federal and State Courts

269

(8)

JUSTICE SANDRA D. O'CONNOR Supreme Court of the United States

PART VI The Judicial Role in a Litigious Society

277

(38)

Introduction

277

(3)

27. The Role of the Courts in Contemporary Society

280

(9)

JUDGE RUGGERO J. ALDISERT United States Court of Appeals, Third Circuit

28. The Courts and Social Policy: Substance and Procedure

289

(13)

JUDGE HENRY J. FRIENDLY United States Court of Appeals, Second Circuit

29. The Two Faces of Judicial Activism

302

(13)

JUDGE WILLIAM WAYNE JUSTICE United States District Court, Eastern District of Texas

Appendix A. Selected Bibliography of Off-the-Bench Commentaries

315

(18)

Appendix B. Time Chart of Members of the Supreme Court of the United States

333

(4)

Appendix C. Jurisdictional Map of the U.S. Courts of Appeals and U.S. District Courts

337

(6)

General Subject Index

343

(12)

Court Case Index

355

(8)

About the Editor

363

What is included with this book?

The New copy of this book will include any supplemental materials advertised. Please check the title of the book to determine if it should include any access cards, study guides, lab manuals, CDs, etc.

The Used, Rental and eBook copies of this book are not guaranteed to include any supplemental materials. Typically, only the book itself is included. This is true even if the title states it includes any access cards, study guides, lab manuals, CDs, etc.

FREE SHIPPING

Rent More, Save More! Use code: BBRENTAL

5% off 1 book, 7% off 2 books, 10% off 3+ books

Summary

Table of Contents

Supplemental Materials

FREE SHIPPING

Rent More, Save More! Use code: BBRENTAL

5% off 1 book, 7% off 2 books, 10% off 3+ books

Judges on Judging

Summary

Table of Contents

Supplemental Materials

Digital License