Supreme Court

Coming November 4: Overruled: The Long War for Control of the U.S. Supreme Court by Damon Root

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On November 4, Palgrave Macmillan will be publishing Overruled: The Long War for Control of the U.S. Supreme Court, the new book from Reason Senior Editor Damon Root. Here's what the book is all about:

Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint at America's highest court. Beginning in the bloody age of slavery, the Civil War, and Reconstruction, this fight now plays a central role in today's blockbuster legal battles over gay rights, gun control, and health care reform.

It's a conflict that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows. For example, judicial restraint—where judges defer to the policy choices made by lawmakers and other government officials—is not only a touchstone of the Progressive left, it is also a philosophy adopted by many members of the modern right. Today's growing camp of libertarians, by contrast, has no patience with judicial restraint and little use for majority rule. They want the courts to police the other branches of government, striking down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom.

This is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society, a fundamental debate that goes to the very heart of our constitutional system. Overruled brings to life the ongoing battle for power in the Supreme Court.

And here's what the reviewers are saying:

"An intriguing account of judicial and economic policy reflecting controversies within conservatism over civil rights and other issues."—Kirkus Reviews

"In Overruled, Damon Root explains a divide in judicial theory about which I was not only ignorant but mistaken. 'Judicial activism' is wrong. Right? It gives unelected authorities minority power to impose rules and regulations that violate individual rights without a democratic process. Wrong. It's 'judicial deference' that gives elected authorities majority power to impose rules and regulations that violate individual rights within a democratic process. And to further confuse the issue judicial activism and judicial deference have, by turns, been the darlings of both Liberals and Conservatives. Fortunately, Damon Root explains it all." —P. J. O'Rourke, journalist and H. L. Mencken Research Fellow at the Cato Institute

"A riveting account of the raging debate over the future of our Constitution between those who contend that judges must 'defer' to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers. Root reveals the inside story behind the surging movement to restore constitutionally-limited government. I loved this book." —Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director, Georgetown Center for the Constitution

Pre-order your copy of Overruled today at Amazon, Barnes & Noble, or your favorite online bookseller.

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  1. Walker should write a book about conspiracies to load HyR with self-dealing book reviews.

    This book sounds interesting, Damon, and I believe I shall acquire a copy to read. Good luck with the sales!

  2. The Supreme Court is intentionally designed not to be a democratic body. On purpose the courts are intended to be isolated from the majority’s craving of the week.

    Their job is to ensure government’s adherence to the Constitution and to interpret and apply–not rewrite–the laws.

    1. Aye. “Co-equal” branch – not superior.

    2. It’s still humans, all the way down.

  3. Here’s what the book is all about:

    You put your left judge in, you take your right judge out!

    1. You take the Constitution, and turn it inside-out!

      1. What if that IS what it’s all about?

  4. ” For example, judicial restraint?where judges defer to the policy choices made by lawmakers and other government officials?is not only a touchstone of the Progressive left, it is also a philosophy adopted by many members of the modern right. Today’s growing camp of libertarians, by contrast, has no patience with judicial restraint and little use for majority rule.”
    No, most people(including most libertarians) want the laws they want and don’t much give a damn how they get it.

    1. Correct. Why is that not obvious to many? About the only people who don’t are law-fans, i.e. people who get off on the process more than the result. It’s like the difference between enjoying a contest for its own sake, and having a big bet on the result.

  5. The courts need to get over themselves. Of course they should enforce the Constitution when a case comes up, but then, the same is true of Congress, the President, and the local zoning board.

    Instead of chin-stroking on “the role of the courts,” why not discuss the best way to interpret the Constitution, whether you’re a federal judge or a Congressman from East Moline?

    1. The modern wisdom is that legislative bodies pass laws, and executive/regulatory bodies adopt regulations, and then the courts figure out if it’s constitutional. No, this responsibility belongs to everyone.

    2. The job of a constitutional judge is to interpret the Constitution is the way that justifies totally unjustifiable legislation. Seriously. They sit in their office while legislators stroll in with legislation and say “How can I spin the Constitution to justify this?” The judge’s job is to figure something out.

      1. Maybe we should make it illegal for lawyers to sit on the court.

        1. I would support that.

          1. No, the legal profession has a key role to play – it’s just that they’re not the *only* players.

            For instance, an eye surgeon from Kentucky should take the constitution as seriously as if he were a lawyer, and if he’s elected to Congress, exercise his own judgment as to which bills are constitutional, not farming out his conscience to a lawyer or judge.

      2. What about cases that don’t involve a constitution?

  6. Sounds like a solid plan to me dude.

    http://www.anon-way.tk

  7. Pop quiz for SCOTUS members

    “The right of the people to keep and bear Arms, shall not be infringed.”

    This sentence means:

    A). the right of the people to keep and bear Arms, SHALL BE infringed.

    B). the right of the people to keep and bear Arms, SHALL NOT BE infringed.

    1. Requiring government-issued identification, background checks, waiting periods, regulations on how one must store one’s firearms, and may issue licensing are totally not infringements. Just common sense legislation. So common sense that it’s insulting to even have to explain it to a peasant like you.

      Now, kiss the hem of the black robe.

      1. Exactly. The Third Circuit Court of Appeals even ruled that prohibiting people from bearing arms outside their home does not burden the right to bear arms.

  8. “Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws?”

    It never occurs to the fuckwit nazgul that if that is what they do, we really have no use for them? The laws are already enacted. Having the court put a stamp on it is pointless.

    Perhaps someone should stand before them and just ask “If you aren’t going to strike down unconstitutional laws, what good are you? What do we need you for if you are just rubber stamping whatever congress says?”. This should be directed at the court but asked while looking Roberts dead in the eye.

    1. “I got yer penaltax – RIGHT HERE!”

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