The Supreme Court and the American Judicial Branch

Like most of our institutions of government, the federal judicial branch traces its origins back to the Constitution. Based on constitutional provisions, the judicial branch (and Supreme Court) were created by the Judiciary Act of 1789. As one of our country’s three branches of government, the federal courts judge the constitutionality of laws and presidential actions. In turn, the House and Senate (legislative branch) check the courts’ powers by approving and disapproving of appointees and by amending the Constitution. The president (executive branch) has the important power of appointing federal judges.

The first Supreme Court convened in 1790 and only had 6 (instead of the now customary 8) justices. President Washington deliberately appointed justices from a variety of states, but all of the men had supported the ratification of the Constitution. Right from its inception, the federal courts have made controversial decisions, from Chisholm v. Georgia (1793), which returned Loyalists’ land to them after the Revolution, to more contemporary decisions pertaining to important questions of freedom of speech and religious liberty.

Below is a collection of resources about judicial branch, the Supreme Court and their historical development. Scroll down to browse these resources or jump from section to section by clicking the links below:

Selected online resources on the United States Supreme Court:

U.S. Supreme CourtThe Supreme Court of the United States Official Website

The Supreme Court’s official website provides up-to-date information on the Court’s latest rulings as well as argument transcripts and case documents.

Visit the official website of the Supreme Court >>

 

 

Supreme Court justices, 1923The Supreme Court Historical Society

The Supreme Court Historical Society, a private non-profit organization, is dedicated to the collection and preservation of the history of the Supreme Court of the United States. Amongst other things, its website features a relevant articles on the Court’s history, a documentary on FDR’s court-packing scheme, and extensive information on how the Court works.

Visit the Supreme Court Historical Society website >>

 

 

James WilsonNational Constitution Center: Who Were the First Six Supreme Court Justices?

George Washington assigned the first Supreme Court justices, who began work on February 1, 1790. The justices formed an interesting group, with “a Chief Justice who became the most-hated man in America for a time; a justice who didn’t want to serve despite the Senate’s confirmation; and another justice who literally jumped into Charleston Bay when he lost his seat on the bench.”

Read more about the first justices at the National Constitution Center>>

 

 

Federalist Papers 78-83

Federalist Papers 78-83, written by Alexander Hamilton in 1788, provide original justification and theory behind the federal judiciary. As Hamilton pointed out, “In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.”

Read Federalist 78-83 at Yale’s Avalon Project >>

 

 

How are Federal Courts Different from State Courts?

The United States Courts website offers information on court role and structure, the difference between state and federal courts, and the significance of the U.S. Court of Appeals.

Learn about the differences between the federal and state courts at USCourts.gov >>

 

*If you are a JMC fellow who’s published on constitutional law, the American Supreme Court, or its history and controversies, and would like your work included here, send it to us at academics@gojmc.org

JMC Resources

Four Pillars of FreedomThe JMC’s First Amendment Library

The First Amendment Library features several Supreme Court cases crucial to the development of religious liberty and freedom of speech in the United States.

Visit the First Amendment Library >>

Select recorded lectures on the United States Supreme Court:

Constitution Day 2019 with Justice Stephen Breyer

For JMC’s 2019 Constitution Day event at Rhodes College, Supreme Court Justice Stephen Breyer spoke on globalism, immigration, and localism vs. tribalism, among other issues.

View the video on YouTube >>

 

American Enterprise Institute: McCulloch v. Maryland at 200

In 2019, the American Enterprise Institute hosted a panel of scholars in honor of the 200th anniversary of the Supreme Court’s landmark McCulloch v. Maryland decision, which decided the scope of congressional power and role of a national bank. Scholars discussed McCulloch v. Maryland, Marshall’s opinion, his judicial statesmanship, James Madison’s alternative reading of the Constitution, and the role of the bank in establishing America’s commercial republic. Panelists included JMC faculty partner Michael Zuckert and JMC fellow Christopher Wolfe.

View the video on YouTube >>

 

Adam White on “The American Supreme Court in American Law and Politics”

On February 20, 2015, the Program on Constitutional Government, a JMC partner program, presented Adam White to speak on the Supreme Court.

View the video on YouTube >>

 

Conversations with Bill Kristol

 

Justice Samuel Alito on Supreme Court, Recent Court Decisions, and His Education

Justice Alito describes the inner workings of the Court, particularly how the justices arrive at decisions. Justice Alito and Kristol also discuss some recent controversial cases regarding free speech.

View the video on YouTube >>

 

Adam White on the Supreme Court and the Conservative Legal Movement

What is the role of the Supreme Court in American politics today? How is the current Court dealing with hot-button social and cultural issues, as well as topics like regulation and the administrative state?

View the video on YouTube >>

 

Commentary and articles from JMC fellows:

American Law Before the Supreme Court

 

Warren Billings, Justices, Books, Laws and Courts in Seventeenth-Century Virginia.” (Law Library Journal 85, 1993)

The Supreme Court and American Constitutionalism, 1997Stephen Engel,Before the Countermajoritarian Difficulty: Regime Unity, Loyal Opposition, and Hostilities toward Judicial Authority in Early America.” (Studies in American Political Development 23.2, September 2009)

Nan Goodman, Banishment, Jurisdiction, and Identity in Seventeenth-Century New England: The Case of Roger Williams.” (Early American Studies 7.1, Spring 2009)

Peter Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787. (University of Pennsylvania Press, 1983)

James Stoner, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. (University Press of Kansas, 1992)

James Stoner, The Idiom of Common Law in the Formation of the Judicial Power.” (The Supreme Court and American Constitutionalism, Rowman & Littlefield Publishers, 1997)

Constructing a Federal Court System: The Supreme Court During the Founding Era

 

Matthew Brogdon,Federalist Constitutionalism and Judicial Independence.” (Readings in American Government, 2013)

Matthew Brogdon, The Formation of Judicial Federalism in the United States.” (Publius: The Journal of Federalism 48.2, Spring 2018)

Declaration of Independence, Mark David Hall (cont.)Matthew Brogdon,Political Jurisprudence and the Role of the Supreme Court: Framing the Judicial Power in the Federal Convention of 1787.” (American Political Thought 6.2, Spring 2017)

Paul Carrese, Judicial Statesmanship, the Jurisprudence of Individualism, and Tocqueville’s Common Law Spirit.” (The Review of Politics 60, 1998)

Mark David Hall, The Declaration of Independence in the Supreme Court.” (The Declaration of Independence: Origins and Impact, Congressional Quarterly Press, 2002)

Mark David Hall, Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases.” (High Court Quarterly Review 5, 2009)

Stephen Presser, “Does the Federal Government Protect Private Property?” (Chronicles: A Magazine of American Culture, March 2006)

Keith Whittington, Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution.” (Studies in American Political Development 9.1, Spring 1995)

The Civil War and Nineteenth Century Law

 

Anthony Lister Ives, Frederick Douglass’s Reform Textualism: An Alternative Jurisprudence Consistent with the Fundamental Purpose of Law.” (The Journal of Politics 80.1, January 2018)

Jonathan White, The Lincoln Administration and the Supreme Court during the Civil War: A Letter from Attorney General Edward Bates.” (Journal of Supreme Court History 37.3, November 2012)

Jonathan White, The Strangely Insignificant Role of the U.S. Supreme Court during the Civil War.” (Journal of the Civil War Era 3.2, June 2013)

Keith Whittington, “Judicial Review of Congress before the Civil War.” (Georgetown Law Journal 97.5, May 2009)

Keith Whittington, Slavery and the U.S. Supreme Court.” (The Political Thought of the Civil War, University Press of Kansas, 2018)

Michael Zuckert, Fundamental Rights, the Supreme Court and American Constitutionalism: The Lessons of the Civil Rights Act of 1866.” (The Supreme Court and American Constitutionalism, Rowman & Littlefield, 1997)

New Precedents and Rulings in the Twentieth Century

 

Franklin D. Roosevelt, 1933Jonathan Bean, Serpent in the Supreme Court: The Folly of Strict Scrutiny, from Japanese Internment to Affirmative Action.” (Beacon, December 10, 2015)

Benjamin Kleinerman (co-author), A Switch in Time Saves Nine: Institutions, Strategic Actors and FDR’s Court-Packing Plan.” (Public Choice 113.3-4, 2002)

Curt Nichols (co-author), Congressional Attacks on the Supreme Court: A Mechanism to Maintain, Build, and Consolidate.” (Law and Social Inquiry 41.1, Winter 2016)

Curt Nichols (co-author), Court-Curbing via Attempt to Amend the Constitution: An Update of Congressional Attacks on the Supreme Court from 1955–1984.” (Justice System Journal 35.4, May 2014)

Contemporary Developments and Controversies in the Court

 

David Alvis (co-author), “The Court’s Incoherence on Executive Removal.” (Law & Liberty, August 4, 2020)

Jonathan Bean, Feds Gut Due Process in ‘Sexual Harassment’ Cases.” (NAS Blog, August 19, 2011)

Jonathan Bean, J’accuse! Feds ‘Discourage’ Due Process. (NAS Blog, August 20, 2011)

Jonathan Bean, Supreme Court: No Privacy on State Phones, Computers, Email.” (NAS Blog, June 18, 2010)

Jonathan Bean, Supreme Court Rules: Social Security is NOT a Binding Contract.” (Beacon, January 23, 2013)

Thomas Bell, “The Law: Perverse Politics: Recess Appointments, Noel Canning, and the Limits of Law.” (Presidential Studies Quarterly 48.2, June 2018)

Jasmine Farrier, “The Contemporary Presidency: Judicial Restraint and the New War Powers.” (Presidential Studies Quarterly 46.2, 2016)

Judge Earl Glock, A New Role: The Retired Justice.” (Chicago Tribune, February 8, 2017)

Marc Landy, SCOTUS Was Right To Curb Feds On Medicaid.” (Cognoscenti: WBUR 90.9FM Ideas and Opinion Website, July 31, 2012)

A Year at the Supreme Court, 2002-2003, Neal Devins (ed.), Davison M. Douglas (ed.)Andrew Lewis (co-author), Mike Huckabee’s attack on the Supreme Court could work. Here’s how.” (Washington Post, June 30, 2015)

Briana McGinnis, This is why some U.S. judges banish convicts from their home communities.” (The Washington Post Monkey Cage Blog, March 16, 2017)

Stephen Presser, The Courts: Crying ‘Halt!’ (Chronicles: A Magazine of American Culture, September 2005)

Stephen Presser, “How Bush Would Fix the Supremes.” (Chicago Tribune, November 5, 2000)

Stephen Presser, Obama should know better on Supreme Court’s role.” (CNN.com, April 3, 2012)

Stephen Presser, Supreme Court Has Legal Precedent to Strike Down Health Care Bill.” (Policy-Mic, March 26, 2012)

Stephen Presser, Will the Supreme Court Be Faithful to Its Oath to Uphold the Constitution in the Obamacare Case? (George Mason Law Review 19.969, 2012)

Jeffrey Rosen, The Supreme Court and the Culture Wars.” (A Year at the Supreme Court, Duke University Press, 2004)

Flagg Taylor (co-author), “The Court’s Incoherence on Executive Removal.” (Law & Liberty, August 4, 2020)

The Supreme Court's facade at an oblique perspectiveGeoffrey Vaughan, Who Wants to Limit the Power of the Courts? (The Public Discourse, November 29, 2018)

Philip Wallach, Greenhouse Gas Regulation at the Supreme Court – The Limits of Executive Adaptation.” (FixGov, February 25, 2014)

Philip Wallach, The Supreme Court Rules on Air Pollution: A Victory for Bureaucratic Muddling Through.” (FixGov, May 1, 2014)

Philip Wallach, The Supreme Court Rules on EPA Regulations: A Review and a Look Ahead.” (FixGov, June 23, 2014)

Philip Wallach, Tuesday’s Other Big News: Supreme Court Stays Obama’s Clean Power Plan.” (FixGov, February 10, 2016)

Jonathan White, A Belligerent President, Accusations of Treason, and Stolen Supreme Court Seat.” (Zócalo, March 6, 2017)

Emily Zackin, Popular Constitutionalism’s Hard When You’re Not Very Popular: Why the ACLU Turned to Courts.” (Law and Society Review 42.2, June 2008)

Theories on the Judiciary

 

Clement Fatovic, “The Political Theology of Prerogative: The Jurisprudential Miracle in Liberal Constitutional Thought.” (Perspectives on Politics 6.3, September 2008)

The Most Democratic Branch: How the Courts Serve America, Jeffrey RosenMichael Greve, Originalism as Ideology.” (Law and Liberty, April 23, 2019)

Mark David Hall (co-author), Political Obligation and the United States Supreme Court.” (Political Obligations, Oxford University Press, 2005)

Erin Lynn Miller, What Constitutions ‘Consideration’ of Mitigating Evidence? (American Journal of Criminal Law 45, Fall 2018)

Sandra Peart (co-author), Adam Smith, Collusion and ‘Right’ at the Supreme Court.” (Supreme Court Economic Review 16.1, February 2008)

Stephen Presser, Judicial Ideology and the Survival of the Rule of Law: A Field guide to the Current Political War over the Judiciary.” (Loyola University Chicago Law Journal 39.2, Winter 2008)

Stephen Presser, “Judging for the People.” (Chronicles: A Magazine of American Culture, June 2006)

Stephen Presser (co-author), Law and Jurisprudence in American History: Cases and Materials. (West Publ. Co., 1980)

Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America. (Oxford University Press, 2006)

The Supreme Court and the Idea of ConstitutionalismJeffrey Rosen, Originalism, Precedent, and Judicial Restraint.” (Harvard Journal of Law & Public Policy, Winter 2011)

John Scott (co-author), Courting the Public: The Influence of Decision Attributes on Individuals’ Views of Court Opinions.” (The Journal of Politics 71, July 2009)

James Stoner, Judicial Office and the Written Constitution: A Response to Philip Hamburger’s ‘Judicial Office and the Liberty Protected by Law.” (Liberty Forum/Library of Law and Liberty, January 6, 2012)

James Stoner, Who Has Authority over the Constitution of the United States? (The Supreme Court and the Idea of Constitutionalism, University of Pennsylvania Press, 2009)

Jonathan White, Guide to Research in Federal Judicial History. (Federal Judicial Center, 2010)

Keith Whittington, Constitutional Constraints in Politics.” (The Supreme Court and the Idea of Constitutionalism, University of Pennsylvania Press, 2009)

Keith Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. (University Press of Kansas, 1999)

Constitutional Interpretation, Textual Meaning, Original Intent, and Judicial Review, Keith WhittingtonKeith Whittington, Judicial Checks on the Presidency.” (The Oxford Handbook of the American Presidency, Oxford University Press, 2009)

Keith Whittington, Once More Unto the Breach: Post-Behavioralist Approaches to Judicial Politics.” (Law and Social Inquiry 25.2, Spring 2000)

Keith Whittington, Taking What They Give Us: Explaining the Court’s Federalism Offensive.” (Duke Law Journal 51.1, October 2001)

Emily Zackin, Kentucky’s Constitutional Crisis and the Many Meanings of Judicial Independence.” (Studies in Law, Politics & Society 58, 2012)

Michael Zuckert, “Judicial Liberalism and Capitalism: Justice Field Reconsidered.” (Social Philosophy and Policy, Summer 2011)

Influential Supreme Court Cases

 

Sotirios Barber, National League of Cities v. Usery: New Meaning for the Tenth Amendment? (Supreme Court Law Review, 1976)

SCOTUS 2018: Major Decisions and Developments of the US Supreme CourtJustin Dyer, Constitutional Confusion: Slavery, Abortion, and Substantive Constitutional Analysis.” (American Journal of Economics and Sociology 76.1, 2017)

Justin Dyer, Revisiting Dred Scott: Prudence, Providence, and the Limits of Constitutional Statesmanship.” (Perspectives on Political Science 39.3, 2010)

Justin Dyer, The Substance of Dred Scott and Roe v. Wade.” (Georgetown Journal of Law and Public Policy 16.2, 2018)

Stephen Engel, Masterpiece Cakeshop on Gay Rights versus Religious Liberty.” (SCOTUS 2018: Major Decisions and Developments of the US Supreme Court, Palgrave Macmillan, 2019)

Jasmine Farrier, All Politics is Still Local: McConnell v. Lunsford.” (Cases in Congressional Campaigns: Incumbents Playing Defense, Routledge, 2009)

William Kristol (editor), Bush v. Gore: The Court Cases and the Commentary. (Brookings Institution Press, 2001)

Bush v. Gore, The Court Cases and CommentaryWilfred McClay, The Worst Decision Since Dred Scott? (Commentary 104.1, October 1, 1997)

Michael Munger (co-author), Chadha v. INS: Policy-making Outside the Constitution.” (Creating Constitutional Change, University of Virginia Press, 2004)

Vincent Phillip Muñoz, A Bad Aftertaste in the Masterpiece Cakeshop Decision.” (AmericanGreatness.com, June 9, 2018)

Vincent Phillip Muñoz, Thou Shall Not Post the Ten Commandments? McCreary, Van Orden, and the Future of Religious Display Jurisprudence.” (Texas Review of Law and Politics 10.2, 2006)

Laura Beth Nielsen (co-author), Siding with Science: In Defense of ASA’s Dukes vs. Wal-Mart Amicus Brief.” (Sociological Methods & Research 40.4, 2011)

Stephen Presser, Marbury, McCulloch, Gore and Bush: A Comment on Sylvia Snowiss.” (John Marshall Law Review 33.4, 2000)

Reconsidering the Insular Cases, The Past and Future of the American EmpireStephen Presser (co-author), The Tragic Failure of Roe v. Wade: Why Abortion Should be Returned to the States.” (Texas Review of Law & Politics 10, 2005)

Clyde Ray, An Old Controversy: Marshall, Whitaker, and Marbury v. Madison.” (Starting Points: A Journal of American Principles & American Practices, February 27, 2019)

Clyde Ray, John Marshall, Marbury v. Madison, and the Construction of Constitutional Legitimacy.” (Law, Culture, and the Humanities 15.1, 2019)

Clyde Ray, John Marshall, McCulloch v. Maryland, and the Concept of Constitutional Sovereignty.” (Perspectives on Political Science 47.2, 2018)

Luke Sheahan, “The First Amendment Dyad and Christian Legal Society v. Martinez: Getting Past ‘State’ and ‘Individual’ to Help the Court ‘See’ Associations.” (Kansas Journal of Law and Public Policy XXVII.2, Spring 2018)

Rogers Smith, Black and White after Brown: Constructions of Race and Modern Supreme Court Decisions.” (University of Pennsylvania Journal of Constitutional Law 5, 2003)

The Encyclopedia of Civil Liberties in AmericaRogers Smith, ‘Black’ and ‘White’ in Brown: Equal Protection and the Legal Construction of Racial Identities.” (Issues in Legal Scholarship 2.1, 2003)

Rogers Smith, “Electoral College: Bush v. Gore.” (Common-Place: The Interactive Journal of Early American Life 2.4, July 2002)

Rogers Smith (co-author), The Last Stand? Shelby County v. Holder and White Political Power in Modern America.” (Du Bois Review 13.1, 2016)

Rogers Smith, United States v. Bhagat Singh Thind.” (The Wiley Blackwell Encyclopedia of Race, Ethnicity, and Nationalism 1-2, 2015)

Bartholomew Sparrow, The Centennial of Ocampo v. United States.” (Reconsidering the Insular Cases: The Past and Future of the American Empire, Harvard University Press, 2015)

Bartholomew Sparrow, Insular Cases: Downes v. Bidwell.” (Milestone Documents in American History: Exploring the Primary Sources That Shaped America, Volume 3: 1888–1955, Schlager Group, Inc., 2008)

Creating Constitutional Change, Keith Whittington (cont.)James Stoner, Common Law and Constitutionalism in the Abortion Case.” (The Review of Politics 55.3, Summer 1993)

Kevin Wagner, Adderly v. Florida: Restricting Protests on Public Property.” (The Encyclopedia of Civil Liberties in America, 2004)

Kevin Wagner, Bush v. Gore: Law and Politics in American Elections.” (The Encyclopedia of the Supreme Court, 2005)

Kevin Wagner, City of Cincinnati v. Discovery Network (1993).” (The First Amendment Encyclopedia)

Kevin Wagner, Mapp v. Ohio: Applying the Exclusionary Rule to States.” (The Encyclopedia of Civil Liberties in America, 2004)

Philip Wallach, King v. Burwell, congressional dysfunction, and the contemporary separation of powers.” (FixGov, June 25, 2015)

Philip Wallach, Michigan v. EPA: Competing conceptions of deference due to administrative agencies.” (FixGov, June 29, 2015)

That Eminent Tribunal- Judicial Supremacy and the Constitution (Michael Zuckert, cont.)Philip Wallach, Starr v. United States ruling favors legality over expediency, but not enough to change anything for Hank Greenberg and AIG.” (FixGov, June 15, 2015)

Gregory Weiner, “There will be no winners in the Supreme Court’s wedding cake case.” (Washington Post, December 4, 2017)

Justin Wert (co-author), “Of Benedick and Beatrice: Citizens United and the Reign of the Laggard Court.” (Cornell Journal of Law and Public Policy 20.719, May 2011)

Jonathan White, The Treason Trial of Jefferson Davis.” (Supreme Court Historical Society Quarterly 33.4, 2011)

Keith Whittington, The Court as the Final Arbiter of the Constitution: Cooper v. Aaron (1958).” (Creating Constitutional Change: Clashes over Power and Liberty in the Supreme Court, University of Virginia Press, 2004)

Keith Whittington (co-author), Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon.” (Hastings Constitutional Law Quarterly 39.3, Spring 2012)

Federalism in AmericaKeith Whittington, Marbury v. Madison and the Politics of Judicial Supremacy.” (Marbury v. Madison: 1803-2003 Un Dialogue Franco-Americain, Dalloz, 2003)

Michael Zuckert, Casey at the Bat: Taking another Swing at Planned Parenthood v. Casey.” (That Eminent Tribunal: Judicial Supremacy and the Constitution, Princeton University Press, 2004)

Michael Zuckert, Corfield v Coryell.” (Federalism in America: an Encyclopedia, Greenwood Press, 2005)

Michael Zuckert, Dred Scott Case.” (Federalism in America: an Encyclopedia, Greenwood Press, 2005)

Michael Zuckert, Legality and Legitimacy in the Dred Scott Case.” (Chicago Kent Law Review 82.1, December 2006)

Influential Supreme Court Justices

 

Warren Billings, Judges’ Lives: Judicial Biography in America, 1607–1995.” (The National Conference on Legal Information Issues: Selected Essays, 1996)

Scalia's ConstitutionMark Blitz, Beyond Original Meaning: The Task of Interpretation.” (Scalia’s Constitution, 2018)

Kevin Burns, Chief Justice as Chief Executive: Taft’s Judicial Statesmanship.” (Journal of Supreme Court History 43.1, March 2018)

Jordan Cash, George Sutherland and the Contextualization of Executive Power.” (American Political Thought Journal 9.1, Winter 2020)

Justin Dyer, Lincolnian Natural Right, Dred Scott, and the Jurisprudence of John McLean.” (Polity 41.1, 2009)

Stephen Engel, Dynamics of Constitutional Development and the Conservative Potential of US Supreme Court Gay Rights Jurisprudence, or How Neil Gorsuch Stopped Worrying and Learned to Love Same-Sex Marriage.” (Constitutional Studies 3, 2018)

Robert Faulkner, “John Marshall.” (Encyclopedia of the Enlightenment, Oxford University Press, 2002)

Robert Faulkner, The Jurisprudence of John Marshall. (Princeton University Press, 1968)

John Marshall's ConstitutionalismRobert Faulkner, The Marshall Court and Its Era.” (Encyclopedia of the American Judicial System, Charles Scribner’s Son, 1987)

Robert Faulkner, The Marshall Court and the Making of Constitutional Democracy.” (John Marshall’s Achievement, Greenwood Press, 1989)

Mark David Hall, James Wilson: Democratic Theorist and Supreme Court Justice.” (Seriatim: The Supreme Court Before John Marshall, New York University Press, 1998)

Charles Kesler, Thomas Cuts at Democrats’ Moral Capital.” (Los Angeles Times, July 4, 1991)

Nicholas Jacobs (co-author), Answering the Call: Leaving the Bench to Serve the President – James F. Byrnes and Franklin Delano Roosevelt.” (Journal of Supreme Court History, 2019)

Vincent Phillip Muñoz, A More Accommodating Accommodation? Justice Kennedy’s Invitation to Compromise.” (Commonweal.com, July 16, 2014)

Vincent Phillip Muñoz, Justice Scalia was Right about Religious Free Exercise.” (Law and Religion Forum, September 6, 2016)

The Supreme Court, The Personalities and Rivalries That Defined AmericaVincent Phillip Muñoz, Justice Sotomayor Misses the Mark: Religious Non-Profits Should Prevail.” (Public Discourse, July 8, 2014)

Vincent Phillip Muñoz, No ‘Wall of Separation.'” (First Things, July 9, 2020)

Deborah O’Malley (co-author), Key Questions for Sonia Sotomayor.” (Heritage Foundation Web Memorandum, July 10, 2009)

Deborah O’Malley, Sotomayor Doesn’t Live up to Obama’s Word.” (Townhall, May 27, 2009)

Deborah O’Malley, Would Kagan Defer to Foreign Law? (Townhall, June 29, 2010)

Andrew Porwancher, The Justice and the Dean: Oliver Wendell Holmes, Jr. and John Henry Wigmore.” (Journal of Supreme Court History 37.3, November 2012)

Stephen Presser, Impeachment Trial of Samuel Chase.” (The Dictionary of American History, Charles Scribner’s Sons, 2003)

Stephen Presser, Impeachment Trial of Samuel Chase.” (The Oxford Companion to American Law, Oxford University Press, 2002)

Reason & PassionStephen Presser, “The Scalias Court.” (Legal Affairs: The Magazine at the Intersection of Law and Life, September-October 2004)

Stephen Presser (co-author), Should Clarence Thomas be Chief Justice? (Legal Affairs, Debate Club, January 2005)

Stephen Presser, Some Alarming Aspects of the Legacies of Judicial Review and of John Marshall.” (William and Mary Law Review 43.4, 2002)

Stephen Presser, Reading the Constitution Right: Clarence Thomas’s fidelity to our founding documents is making its mark on the Supreme Court.” (City Journal 17.2, Spring 2007)

Stephen Presser, Touting Thomas: The Truth About America’s Most Maligned Justice.” (Legal Affairs, January-February 2005)

Stephen Presser, The Verdict on Samuel Chase and His Apologist.” (Seriatim: The Supreme Court Before John Marshall, New York University Press, 1998)

Clyde Ray, John Marshall, the Native American Cases, and the Idea of Constitutional Nationalism.” (The Journal of Southern Legal History 26, 2018)

The United States Supreme CourtClyde Ray, John Marshall’s Constitutionalism. (State University of New York Press, 2019)

Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries that Defined America. (Times Books, 2007)

Jeffrey Rosen, We Hardly Know it When we See it: Obscenity and the Problem of Unprotected Speech.” (Reason and Passion: Justice Brennan’s Enduring Influence, Norton, 1997)

James Stoner, Heir Apparent: Bushrod Washington and Federal Justice in the Early Republic.” (Seriatim: The Supreme Court Before John Marshall, New York University Press, 2018)

James Stoner, The Justice of the Market and the Common Good: Justice Sutherland’s Debate.” (A Second Look at First Things: A Case for Conservative Politics (The Hadley Arkes Festschrift), St. Augustine’s Press, 2013)

Jonathan White (editor), A New Word from Roger B. Taney on Habeas Corpus.” (Maryland Historical Magazine 107.3, Fall 2012)

Rehnquist Justice: Understanding the Court Dynamic, Earl Maltz (ed.), Keith Whittington (cont.)Jonathan White, The Death of Roger B. Taney.” (The Civil War Monitor, October 13, 2014)

Keith Whittington, The Burger Court: Once More in Transition.” (The United States Supreme Court: The Pursuit of Justice, Houghton Mifflin, 2005)

Keith Whittington, William H. Rehnquist: Nixon’s Strict Constructionist, Reagan’s Chief Justice.” (Rehnquist Justice: Understanding the Court Dynamic, University Press of Kansas, 2003)

Michael Zuckert, Epistemology and Hermeneutics in the Constitutional Jurisprudence of John Marshall.” (John Marshall’s Achievement: Law, Politics, and Constitutional Interpretations, Greenwood, 1989)

The Appointment Process

 

Robert John Burton (co-author), Humility, Hubris, and the Next Supreme Court Justice.” (Starting Points: A Journal of American Principles and American Practices, March 20, 2017)

Mirya Holman, Measuring Merit in Rhode Island’s Natural Experiment in Judicial Selection.” (Roger Williams University Law Review 15.3, Fall 2010)

Supreme Court justices, 1923Deborah O’Malley, A Defense of the Elected Judiciary.” (Heritage Foundation Legal Memorandum, September 9, 2010)

Stephen Presser (co-author), The Case for Judicial Appointments.” (The Federalist Society, January 1, 2003)

Stephen Presser, Evaluating President Obama’s Appointments of Judges from a Conservative Perspective: What Did the Election of Donald Trump Mean for Popular Sovereignty?” (Howard Law Journal 60.663, Spring 2017)

Stephen Presser, The Role of the Senate in Judicial Confirmations.” (Federalist Society Hot Topics, May 12, 2003)

Stephen Presser, “‘Should Ideology of Judicial Nominees Matter?’ Is the Senate’s Current Reconsideration of the Confirmation Process Justified?” (Texas Review of Law and Politics 6, September 2001)

Oliver Wendell HolmesStephen Presser (co-author), White Paper, The Case for Judicial Appointments.” (Federalist Society, June 2000)

Jeffrey Tulis, Constitutional Abdication: The Senate,the President and Appointments to the Supreme Court.” (Case Western Reserve Law Review 47.4, Summer 1997)

Geoffrey Vaughan, Kavanaugh’s Way: A Response to Greg Weiner.” (Library of Law and Liberty, October 4, 2018)

Keith Whittington, The President’s Nominee: Robert Bork and the Modern Judicial Confirmation Process.” (Baker Center Journal of Applied Public Policy 4.2, Fall 2012)

Keith Whittington, Presidents, Senates, and Failed Supreme Court Nominations.” (The Supreme Court Review, 2006)

Mariah Zeisberg, Should We Elect the US Supreme Court?” (Perspectives on Politics 7.4, December 2009)

Judicial Review

 

Jeremy Bailey, Judicial Review and Constitutional Development: Who has the ‘Last Word’ in Interpreting the Constitution? (The People and American Government, Pearson Custom Publishing, 2010)

Rethinking Political Institutions: The Art of the StateSotirios Barber, Judicial Review and The Federalist.” (University of Chicago Law Review 55, 1988)

Keith Whittington, An ‘Indispensable Feature’? Constitutionalism and Judicial Review.” (New York University Journal of Legislation and Public Policy 6.1, Fall 2002)

Keith Whittington, The Death of the Legalized Constitution and the Specter of Judicial Review.” (Courts and the Culture Wars, Lexington Books, 2002)

Keith Whittington, Judicial Review and Interpretation: Have the Courts Become Sovereign When Interpreting the Constitution? (Institutions of American Democracy: The Judicial Branch, Oxford University Press, 2005)

Keith Whittington, The Least Activist Court in History? The Roberts Court and the Exercise of Judicial Review.” (Notre Dame Law Review 89.5, 2014)

Keith Whittington, Legislative Sanctions and the Strategic Environment of Judicial Review.” (I·Con: The International Journal of Constitutional Law 1.3, July 2003)

Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present, Keith WhittingtonKeith Whittington, “The Power of Judicial Review.” (The Oxford Handbook of the United States Constitution, Oxford University Press, 2015)

Keith Whittington, Preserving the ‘Dignity and Influence of the Court’: Political Supports for Judicial Review in the United States.” (Rethinking Political Institutions: The Art of the State, New York University Press, 2006)

Keith Whittington, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. (University Press of Kansas, 2019)

Keith Whittington, Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court.” (Constitutional Studies 1.2, 2016)

Keith Whittington (co-author), Why Does the Supreme Court Uphold So Many Laws? (University of Illinois Law Review 3, 2018)

Michael Zuckert, Judicial Review and the Incomplete Constitution: a Madisonian Perspective on the Supreme Court and the Idea of Constitutionalism.” (The Supreme Court and the Idea of Constitutionalism, University of Pennsylvania Press, 2009)

Judicial Supremacy & Power

 

Sotirios Barber, The Constitution of Judicial Power. (Johns Hopkins University Press, 1993)

The Political ConstitutionStephen Engel, American Politicians Confront the Court: Opposition Politics and the Changing Responses to Judicial Power. (Cambridge University Press, 2011)

Stephen Engel, Assessing Presidential Manipulations of Federal Judicial Power.” (The Politics of Judicial Independence, Johns Hopkins University Press, 2010)

Rogers Smith, Judicial Power and Democracy: A Machiavellian View.” (The Supreme Court and the Idea of Constitutionalism, University of Pennsylvania Press, 2009)

James Stoner, Defining Judicial Power I: From ‘Merely Judgment’ to ‘Force’ and ‘Will.'” (Liberty Law Blog/Library of Law and Liberty, February 20, 2012)

James Stoner, Defining Judicial Power II: American Political Development and Irreversible Change.” (Liberty Law Blog/Library of Law and Liberty, February 21, 2012)

Gregory Weiner, The Political Constitution: The Case against Judicial Supremacy. (University Press of Kansas, 2019)

Gregory Weiner, The Power of the Courts is Messing Up Politics.” (New York Times, November 12, 2017)

Marbury versus MadisonKeith Whittington, The Casey Five versus the Federalism Five: Supreme Legislator or Prudent Umpire? (That Eminent Tribunal: Judicial Supremacy and the Constitution, Princeton University Press, 2004)

Keith Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses.” (North Carolina Law Review 80.3, March 2002)

Keith Whittington (co-author), “Judicial Independence, the Power of the Purse, and Inherent Judicial Powers.” (Judicature 88.1, July/August 2004)

Keith Whittington, The Political Foundations of Judicial Supremacy.” (Constitutional Politics: Essays on Constitution Making, Maintenance and Change, Princeton University Press, 2001)

Keith Whittington, Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning.” (Polity 33.3, Spring 2001)

Keith Whittington, ’To Support this Constitution’: Judicial Supremacy in the Twentieth Century.” (Marbury v. Madison: Documents and Commentary, CQ Press, 2002)

The Supreme Court on Religious Liberty

 

Richard Garnett, Religious Schools and the Freedom of the Church.” (Law & Liberty, July 10, 2020)

Mark David Hall, “The Little Sisters Win – For Now.” (Law & Liberty, July 13, 2020)

Vincent Phillip Muñoz, The Religious Liberty Case Against Religious Liberty Litigation: Non-Universal Exemptions and Judicial Overreach.” (Public Discourse, October 11, 2012)

Religious Liberty and the American Supreme Court, Vincent Phillip MuñozVincent Phillip Muñoz, The Religious Liberty Case Against Religious Liberty Litigation: Reasonable, Not Sectarian Arguments.” (Public Discourse, October 12, 2012)

Vincent Phillip Muñoz, Religious Liberty and The American Supreme Court: The Essential Cases & Documents. (Rowman & Littlefield, 2013)

Stephen Presser, The Federal Courts, a Menorah, and the Ten Commandments: Whose Religious Iconography Is Constitutional? (Chronicles: A Magazine of American Culture, March 2003)

Stephen Presser, Outsiders, Swing Justices, and Original Understanding: Can the Religion Clauses Be Saved?: A Comment on Greenawalt.” (Northwestern University Law Review 99.1, 2004)

John Ragosta (co-author), Town Prayers: What does the Supreme Court mean by coercion? (Washington Post, May 7, 2014)

James Stoner, Religious Liberty and Common Law: Free Exercise Exemptions and American Courts.” (Polity 26.1, Fall 1993)

 

*If you are a JMC fellow who’s published on constitutional law, the American Supreme Court, or its history and controversies, and would like your work included here, send it to us at academics@gojmc.org

 


 

Facebook iconTwitter iconFollow us on Facebook and Twitter for updates about lectures, publications, podcasts, and events related to American political thought, United States history, and the Western tradition!

 


 

Want to help the Jack Miller Center transform higher education? Donate today.