November 17, 2014 - "We have had wars over the direction of the Supreme Court — President Roosevelt’s 1937 court-packing plan or, more recently, the brutal fights over the judicial nominations of Robert Bork and Clarence Thomas . These partisan confrontations, however, are not what Damon Root has in mind in Overruled: The Long War for Control of the U.S. Supreme Court. His 'war' pits libertarians against conservatives. Libertarians, he says, want judicial 'action' and 'engagement.' Conservatives want 'restraint.'
"While legal historians may quarrel with the story here and there, the broader audience for which Overruled is intended will benefit from Mr. Root’s confident, competent telling. In particular, he powerfully illustrates that Holmes, Brandeis and Frankfurter—the most overrated justices in our history—had not the foggiest notion of the Constitution. To the extent that they comprehended it, they loathed it as inimical to their vision of government by experts.
"Mr. Root’s chronicle of these rival legal traditions sets the stage for the main parts of Overruled: its account of the conservative-libertarian debate of the past three decades and of litigation campaigns in which libertarian organizations have led the way. They include gun-control cases, spearheaded by the Cato Institute; the Kelo v. City of New London (2005) case, where the Institute for Justice argued (if unsuccessfully) that the 'taking' of private property requires a public purpose; the institute’s Lochner-style challenges to licensing requirements for hair braiders and casket makers; and the NFIB v. Sebelius (2012) litigation over the Affordable Care Act, where libertarian law professors played a central role. Mr. Root’s description of how those cases were conceptualized and litigated is fun stuff and informative even for insiders....
"Signally but obliquely, the author seems to recognize that the Supreme Court has also enhanced conservative-libertarian convergence in a different way.... Restraint-oriented conservatives never objected to freedom for hair braiders; rather, they worried that a libertarian-rights agenda might also entail abortion on demand (delicately omitted from Mr. Root’s 'landmark rulings') and gay marriage. Now that those battles have been fought and lost, conservatives might as well embrace the libertarian campaign for economic rights and an 'engaged' judiciary."
Read more: http://online.wsj.com/articles/book-review-overruled-by-damon-root-1416270073
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