Case by Case
The new Oxford edition of decisions that made history.
Nov 9, 2009, Vol. 15, No. 08 • By TERRY EASTLAND
The Oxford Guide
In 1992 Oxford University Press brought out The Oxford Companion to the Supreme Court of the United States. Organized alphabetically, the more than thousand-page book had entries on the Court's history and current operation, the justices themselves, legal doctrines and vocabulary, and the Court's leading decisions, such as Marbury v. Madison--which confirmed the power of constitutional review, and without which the book would have been much smaller, if indeed a book at all--and, more recognizably, Brown v. Board of Education, which declared unconstitutional segregated public schools.
Seven years later the editor of the Companion, Kermit Hall, put together another alphabetically structured but much shorter Oxford book: The Oxford Guide to United States Supreme Court Decisions. The Guide treated the most important decisions, like Marbury and Brown--some 440 in all. Not surprisingly, since Hall edited both books, many of the case entries he used for the Guide were originally composed for the Companion. He edited some of those entries while also adding new ones on big decisions handed down after the Companion was published.
In 2005, Hall updated the Companion in a second edition. And now, the Guide has been published in a second edition. It includes case entries first composed for the 2005 Companion as well as entries on decisions rendered since 2005. Among the cases treated here that are not in the first edition are Bush v. Gore (2000), the Michigan Affirmative Action cases (2003), the Texas and Kentucky "Ten Commandments" cases (2005), and the Enemy Combatant Cases (2004, 2006, and 2008).
Oxford identifies Hall, who died in 2006, and the legal historian James W. Ely, as coeditors. It's a fitting designation for Hall, since the Companion and the Guide were his books to begin with. Moreover, Hall himself contributed more entries to the Guide than anyone else, with 49 in the second edition. The cases Hall wrote on range in subject matter from voting rights to racial set-asides to federalism to free speech to public school prayer to abortion.
Each entry begins with the name of the case, its official citation in the United States Reports, and other basic information. The decision is described and analyzed, and notable concurrences or dissents noted. So are subsequent responses to rulings in later cases or in legislation passed by Congress.
While there are more liberal scholars than not among the more than 100 contributors--drawn as most are from legal and political science faculties, hardly Republican redoubts--conservative scholars are not absent. They include Nelson Lund, who contributed the entry on District of Columbia v. Heller, the 2008 case in which the Court adopted the individual-rights interpretation of the Second Amendment; and Gail Heriot, who composed the entry on Parents Involved in Community Schools v. Seattle School District No. 1 (and a companion case from Louisville), the 2007 cases in which the Court struck down race-based policies designed to achieve racial balance in public schools.
Unfortunately for this new edition, however, it is marred in ways especially noticeable in a reference work. Proofreaders evidently missed on page 205 "Frank-furter" (the justice) and on page 218 "Fulli-love" (the name of a party in a 1980 race set-aside case) and on page 109 "theburden." Inexplicably, some contributors aren't listed in the directory of contributors, among them (to cite one example) Howard Gillman, who wrote the entry on Bush v. Gore--and in case you wondered, is professor of law and political science at the University of Southern California.
And on occasion the Guide stumbles. For example, on Planned Parenthood v. Casey, the 1992 case in which the Court explicitly declined to overrule Roe v. Wade, the entry states that Justices Sandra Day O'Connor and Anthony Kennedy "were more concerned with the institutional danger that [Casey] presented to the Court than with settling the abortion issue by outlawing it."
Of course, the Court could not have outlawed "the abortion issue." But it could have overruled Roe v. Wade and returned the issue to the states--which was the critical question before the Court.
Still, having read many of the entries, and assessing the volume in terms of its case-specific objectives, I'd say this Guide deserves high marks. Some entries stand out for their obvious excellence--in particular the ones on school desegregation cases by Dennis J. Hutchison of the University of Chicago Law School--and some of the best entries are on older cases raising issues that the Court later revisited.
For example, on Barron v. Baltimore, the 1833 case in which the Court held that the Bill of Rights restrains only the federal government and not the states, the entry efficiently notes the reemergence of the issue with the passage of the Fourteenth Amendment and closes with a reference to the Court's application of provisions of the Bill of Rights to the states that, overturning Barron, began more than 90 years later in -Gitlow v. New York (1925).
Likewise, there is Carter v. Carter Coal Co., the 1936 case in which the Court held unconstitutional a New Deal statute designed to regulate the production of coal. Congress based its authority for the law on the Article I power to regulate interstate commerce, but the Court said that clause had limits which Congress had overstepped. The entry on the case observes that, within a year, the Court had changed its mind, and the clause then "became the basis for a massive restructuring of the federal-state relationship." Moving to the end of the 20th century, the entry notes how the Court forged a new direction as it found excessive some congressional invocations of the commerce clause, starting with United States v. Lopez in 1995.
As a reference book, the Guide will be used not for hours at a time but on this occasion and then that, to look up a case and then, maybe, another one or two. So a user of the Guide may not grasp, in reading a particular entry, what all of the entries taken together demonstrate: how the judicial power has come to be exercised over the past two centuries. Within this story there is another story, not one the Guide undertakes to tell but which is there for the historically minded reader: how the exercise of judicial power has expanded well beyond what the framers of the Constitution anticipated.
The Guide in this edition, and any others to come, will continue to find an audience among lawyers. But it is also a book for the educated layman wanting to know the basics of particular cases. Inevitably, for the lawyer as for the layman, the question arises as to whether all of what the Guide contains is located somewhere online. What I found is that, while you can look up any of the cases in the Guide online, and read the opinions in their entirety, there does not seem to be a site that replicates what the Guide does in selecting and concisely analyzing such a large number of significant cases.
The Guide thus makes its own case for what is still known as a book, that thing with covers and paper. That is manifestly to its credit.
Terry Eastland, publisher of THE WEEKLY STANDARD, is the author of several books on law and government, including Benchmarks: Great Constitutional Controversies in the Supreme Court.