[This review appeared in the Conservative Review, November/December 1995, p. 34.]
The Decline and Fall of the Supreme Court: Living Out the Nightmares of the Federalists
Christopher C. Faille
Praeger Publishers, 1995
Reviewed by Dwight D. Murphey
This is a readable, often eloquent, and instructive book about the decline of the United States Supreme Court from an institution held in reverence to one whose nominees are questioned in salacious public hearings about such things, as we remember from not long ago, as pubic hairs on Coke cans. The author uses the Senate confirmation battles of recent years as the focus of his action. The story, which involves Presidents, nominees and the Senate, is compelling.
It at the same time provides the setting for much more. The book is foremost a discussion of the political maelstrom into which "realism" -- as a legal and Constitutional doctrine that treats law as an enunciation of changing policy rather than as a system of long-standing principle -- has thrown the Supreme Court. The Court's "decline" (the word "fall" is an overstatement) is more than just immersement in bloody confirmation fights; more broadly, it is the reduction of the Court to the harsh give-and-take of politics in a world in which law as a formal system has receded ever further into the background.
One of the benefits from Faille's discussion is that he in effect provides a primer on the contemporary schools of Constitutional philosophy and on the main doctrines and "tests" -- such as are used for "due process," "equal protection" and the separation of church and state -- that have come to be used in today's Constitutional law. Anyone who would like to be familiar with developments in Constitutional law since World War II, and who isn't otherwise fully conversant with its intricacies, will find this book highly instructive even though it doesn't lose the reader in those intricacies.
Faille is a philosopher (as evidenced by his earlier book on the philosophies of the past four centuries) and vivid story-teller, which causes the book to include many "nuggets" of thought and of history. Each of the accounts of the confirmation fights amounts, really, to a refresher course in recent American history: the struggles in the Senate over the likes of Fortas, Haynsworth, Carswell, Rehnquist, Scalia, Bork, Ginsberg, Anthony Kennedy, and Thomas. The "leading cases" that Faille is called upon to discuss, not as digressions or as dry legalisms but as integral parts of the story, are other nuggets.
Along the same lines, the narrative includes an excellent depth of historical analogy. This is apparent at the very start when he tells the case of Sir Walter Raleigh, who was beheaded for treason. Raleigh had demanded to confront his accuser, but was denied that right. Faille shows how aptly this case from almost four centuries ago demonstrates the injustice that was inherent in the assurance that James Brudney, a staff assistant to Senator Howard Metzenbaum, gave to Anita Hill in 1991 that she could make her charges against Clarence Thomas in confidence to the Senate committee.
Faille doesn't hesitate to share his own thinking on Constitutional theory. For example, he opposes the "tiered" approach that has become common to due process protection since the New Deal. This is an approach that subjects some government acts to "strict scrutiny," striking down almost everything government does in the area, and other acts to "slight scrutiny," thereby allowing virtually all government action. Faille argues that there should be "only one standard for substantive due process"; he would extend the protection of the Constitution once again, as was done before the New Deal, to all liberty, not just to those liberties modern "social democracy" prefers. He would not continue the duality that gives members of "federally protected classes" many rights while the members of society's mainstream are subject to whatever government chooses to do.
This is a book that deserves a wide circulation. It is tragic that the publisher has chosen to put a price tag of $52.95 on it. When the book fails to find a market, as I expect it will, it won't be the author's fault. He has more than done his part.