Judges on Judging

by O'Brien, David M.

• ISBN13: 9781566430425
• ISBN10: 1566430429
• Format: Paperback
• Copyright: 1997-02-01
• Publisher: Chatham House Pub

Summary

Based on the highly successful Views from the Bench, this comprehensive collection of essays by Supreme Court justices and federal district judges in the United States looks at how they approach their function as judges and the role of the judiciary in the American constitutional system. O'Brien contributes to the ongoing debate over off-the-bench commentaries and encourages readers to think about the qualities of judges and the role of courts in American politics.

Table of Contents

Acknowledgments	v	(6)
Preface	xi
PART I Judicial Review and American Politics: Historical and Political Perspectives	1	(28)
Introduction	1	(6)
I. The Doctrine of Judicial Review	7	(13)
Mr. Marshall
Mr. Jefferson
Mr. Marbury
CHIEF JUSTICE WARREN E. BURGER Supreme Court of the United States
2. The Supreme Court in the American System of Government	20	(9)
JUSTICE ROBERT H. JACKSON Supreme Court of the United States
PART II The Dynamics of the Judicial Process	29	(106)
Introduction	29	(24)
3. Advice and Consent in Theory and Practice	53	(10)
JUDGE ROGER J. MINER United States Court of Appeals, Second Circuit
4. The Adversary Judge: The Experience of the Trial Judge	63	(8)
JUDGE MARVIN E. FRANKEL United States District Court, Southern District of New York
5. What I Ate for Breakfast and Other Mysteries of Judicial Decision Making	71	(6)
JUDGE ALEX KOZINSKI United States Court of Appeals, Ninth Circuit
6. Whose Federal Judiciary Is It Anyway?	77	(6)
JUDGE STEPHEN REINHARDT United States Court of Appeals, Ninth Circuit
7. What Really Goes On at the Supreme Court	83	(4)
JUSTICE LEWIS F. POWELL JR. Supreme Court of the United States
8. The Supreme Court's Conference	87	(4)
CHIEF JUSTICE WILLIAM H. REHNQUIST Supreme Court of the United States
9. Deciding What to Decide: The Docket and the Rule of Four	91	(8)
JUSTICE JOHN PAUL STEVENS Supreme Court of the United States
10. The Role of Oral Argument	99	(4)
JUSTICE JOHN M. HARLAN II Supreme Court of the United States
11. Precedent and Policy: Judicial Opinions and Decision Making	103	(10)
CHIEF JUSTICE WALTER V. SCHAEFER Supreme Court of Illinois
12. The Office of the Chief Justice:	113	(22)
Warren E. Burger and the Administration of Justice
JUDGE EDWARD A. TAMM United States Court of Appeals, District of Columbia Circuit
JUSTICE PAUL C. REARDON Supreme Judicial Court of Massachusetts
PART III The Judiciary and the Constitution	135	(76)
Introduction	135	(6)
13. The Notion of a Living Constitution	141	(11)
CHIEF JUSTICE WILLIAM H. REHNQUIST Supreme Court of the United States
14. A Relativistic Constitution	152	(11)
JUDGE WILLIAM WAYNE JUSTICE United States District Court, Eastern District of Texas
15. The Jurisprudence of Judicial Restraint: A Return to the Moorings	163	(12)
JUDGE J. CLIFFORD WALLACE United States Court of Appeals, Ninth Circuit
16. Tradition and Morality in Constitutional Law	175	(7)
JUDGE ROBERT H. BORK United States Court of Appeals, District of Columbia Circuit
17. What Am I, a Potted Plant? The Case against Strict Constructionism	182	(5)
JUDGE RICHARD A. POSNER United States Court of Appeals, Seventh Circuit
18. Originalism: The Lesser Evil	187	(8)
JUSTICE ANTONIN SCALIA Supreme Court of the United States
19. The Constitution: A Living Document	195	(5)
JUSTICE THURGOOD MARSHALL Supreme Court of the United States
20. The Constitution of the United States: Contemporary Ratification	200	(11)
JUSTICE WILLIAM J. BRENNAN JR. Supreme Court of the United States
PART IV The Judiciary and Federal Regulation: Line Drawing and Statutory Construction	211	(28)
Introduction	211	(10)
21. Some Reflections on the Reading of Statutes	221	(9)
JUSTICE FELIX FRANKFURTER Supreme Court of the United States
22. What Does Legislative History Tell Us?	230	(9)
JUDGE FRANK H. EASTERBROOK United States Court of Appeals, Seventh Circuit
PART V Our Dual Constitutional System: The Bill of Rights and the States	239	(38)
Introduction	239	(6)
23. The Bill of Rights	245	(8)
JUSTICE HUGO L. BLACK Supreme Court of the United States
24. Guardians of Our Liberties--State Courts No Less Than Federal	253	(8)
JUSTICE WILLIAM J. BRENNAN JR. Supreme Court of the United States
25. First Things First: Rediscovering the States' Bills of Rights	261	(8)
JUSTICE HANS A. LINDE Oregon State Supreme Court
26. Trends in the Relationship between the Federal and State Courts	269	(8)
JUSTICE SANDRA D. O'CONNOR Supreme Court of the United States
PART VI The Judicial Role in a Litigious Society	277	(38)
Introduction	277	(3)
27. The Role of the Courts in Contemporary Society	280	(9)
JUDGE RUGGERO J. ALDISERT United States Court of Appeals, Third Circuit
28. The Courts and Social Policy: Substance and Procedure	289	(13)
JUDGE HENRY J. FRIENDLY United States Court of Appeals, Second Circuit
29. The Two Faces of Judicial Activism	302	(13)
JUDGE WILLIAM WAYNE JUSTICE United States District Court, Eastern District of Texas
Appendix A. Selected Bibliography of Off-the-Bench Commentaries	315	(18)
Appendix B. Time Chart of Members of the Supreme Court of the United States	333	(4)
Appendix C. Jurisdictional Map of the U.S. Courts of Appeals and U.S. District Courts	337	(6)
General Subject Index	343	(12)
Court Case Index	355	(8)
About the Editor	363