In the Balance: Law and Politics on the Roberts Court

by Mark Tushnet

Overview

An examination of the initial years of the Roberts Court and the intellectual battle between Roberts and Kagan for leadership.

When John Roberts was appointed chief justice of the Supreme Court, he said he would act as an umpire. Instead, his Court is reshaping legal precedent through decisions unmistakably—though not always predictably—determined by politics as much as by law, on a Court almost perfectly politically divided.

Harvard Law School professor and constitutional law expert Mark Tushnet clarifies the lines of conflict and what is at stake on the Supreme Court as it hangs “in the balance” between its conservatives and its liberals.

Clear and deeply knowledgeable on both points of law and the Court’s key players, Tushnet offers a nuanced and surprising examination of the initial years of the Roberts Court. Covering the legal philosophies that have informed decisions on major cases such as the Affordable Care Act, the political structures behind Court appointments, and the face-off between John Roberts and Elena Kagan for intellectual dominance of the Court, In the Balance is a must-read for anyone looking for fresh insight into the Court’s impact on the everyday lives of Americans.

Product Details

ISBN-13:	9780393073447
Publisher:	Norton, W. W. & Company, Inc.
Publication date:	09/30/2013
Edition description:	New Edition
Pages:	352
Sales rank:	920,708
Product dimensions:	6.30(w) x 9.50(h) x 1.30(d)

About the Author

Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School and the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law. He divides his time between Washington, DC, and Cambridge, Massachusetts.

Table of Contents

Preface Striking the Balance on the Roberts Court ix

Chapter 1 Off the Wall and Down the Rabbit Hole 1

Chapter 2 Making the Roberts Court 44

Chapter 3 The Rookie and Sophomore Years 102

Chapter 4 The Court of Public Opinion, the Supreme Court, and Gun Rights 148

Chapter 5 Business Stooge or Umpire? Business Cases in the Roberts Court 187

Chapter 6 Sticks and Stones, Lies and Insults 215

Chapter 7 Citizens United and Campaign Finance 247

Epilogue Elections Matter 281

Notes 289

Acknowledgments 305

Index 307

Editorial Reviews

A distinguished constitutional law scholar examines the complex, occasionally surprising interplay of law and politics that explains decisions from our closely divided, highest court. Constitutional jurisprudence involves reasoning from rules and precedent, the sort of legal analysis any lawyer or judge well understands, but it's also shaded by a uniquely political dimension. By "politics," Harvard Law School professor Tushnet (Why the Constitution Matters, 2011, etc.) means nothing so bald as the latest partisan dispatch from Democratic or Republican headquarters, but rather the "political structures and political visions" that produce nominees for the court, account for the principles and philosophies of the justices, shape arguments brought to the Supreme Court for adjudication, and frequently tip the balance in decisions. If the intellectual leadership of the Roberts Court passes from the chief justice to, say, Justice Elena Kagan--as it may if Obama is afforded future nominations--the shift will be attributable to this operation of politics on the court's judgments. Tushnet teases out his argument with chapters devoted to the Roberts Court's decisions on Obamacare, especially, and on other major cases dealing with affirmative action, gun rights, business interests, campaign finance and the First Amendment. The author is particularly good on the vetting process for justices, explaining how each party and president (with fingers crossed) approachs the selection of nominees. But the court, as Tushnet points out, plays a long game, and the mere passage of time can upset today's careful political calculation. Things change, including the composition of political parties, the makeup of the court and the relations among the justices. Moreover, when politics and law mingle, as a number of the First Amendment decisions demonstrate, the "conservative versus liberal" narrative is not always so straightforward. Tushnet is an informed, experienced observer--he clerked for Justice Thurgood Marshall and owes his Harvard appointment to then-dean Kagan--and he proves a sure-footed guide in difficult terrain. A treat for obsessive court watchers that's accessible to general readers.

Kirkus Reviews