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Greve Book Review in Wall Street Journal

A book review by Professor Michael Greve appears in the Wall Street Journal. Greve reviews Overruled: The Long War for Control of the U.S. Supreme Court by Damon Root.

Excerpt:

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.”

A senior editor at Reason magazine, Mr. Root is with the libertarians. Still, he is admirably respectful of the “restraint” tradition. He traces it to Oliver Wendell Holmes, through Louis Brandeis and Felix Frankfurter, and eventually to Robert Bork—all of whom, in different ways, argued for letting democratic majorities govern without undue judicial obstruction. Mr. Root shows how the liberal “restraint” commitment, originally calculated to create broad space for New Deal programs, migrated to conservatives in the 1960s, when Robert Bork joined the Yale Law School faculty and met Alexander Bickel, a brilliant Frankfurter disciple who famously urged the federal judiciary to exercise its “passive virtues” in deference to democratic demands.

Mr. Root traces the tradition of active engagement to the late-19th-century Justice Stephen Field. It embodies essentially libertarian commitments to “free labor” and “liberty of contract” and calls on an engaged, jealous judiciary to protect those rights against government encroachments. The Supreme Court’s decision in Lochner v. New York (1905), striking down a state law that limited bakers’ working hours, exemplifies this jurisprudence. This tradition got buried in the New Deal but, according to Mr. Root, is now being revived by libertarian activists, lawyers and scholars.

Libertarians and Conservatives Battle Over the Supreme Court, Wall Street Journal, November 17, 2014. By Michael Greve.