The Supreme Court of the United States

by

Carol Nackenoff

• LAST REVIEWED: 25 February 2016
• LAST MODIFIED: 25 February 2016
• DOI: 10.1093/obo/9780199756223-0051

Introduction

The Supreme Court of the United States as a subject offers many different choices of direction. Academics in law schools sometimes approach the court and its work in ways that are different from those of historians, sociologists, political scientists, economists, and philosophers. The court is an institution, it produces outputs (decisions) in a wide array of issue areas, and it consists of individual members whose decisions can be treated as votes; it is a set of practices, it interprets a written Constitution, it is located in a system of separated (and sometimes shared) powers, it is lodged in a system of courts, and it is located in a federal system of government. The US Supreme Court and what it does can be compared to other constitutional courts in democratic systems of government. There are vigorous debates about whether the Constitution it interprets has a fixed meaning that should not change without Article V amendments, but few believe that, for good or ill, the meaning of the Constitution and its clauses has actually remained static. The Supreme Court as a subject raises questions about the relationship between ordinary statute law and constitutions, about constitutionalism, about the proper scope for judicial review, and about judicial supremacy and whether the court is claiming more authority for itself than in the past. A number of these issues are introduced here along with alternative approaches to the study of the court. One way of introducing the court has not been chosen: by areas of case law and the scholarship focused on particular issues or constitutional moments. Histories, encyclopedias, and bibliographies included here can introduce some of these issues and moments. Greater emphasis is placed on scholarship in the past half century than on earlier classics.

General Works

Histories of the court and of changes in understandings of it in American politics are useful places to begin. The histories included here have broad historical sweep. The Oliver Wendell Holmes Devise History of the Supreme Court of the United States (Katz 2006–) is the premier entry in the field, with rich and deep coverage of particular periods and the most to offer scholars and those chiefly interested in specific historical issues and moments. A number of one-volume works are good for introducing students to histories of the court, such as Schwartz 1993, or of the development of American law and legal culture, such as Hall and Karsten 2009. Friedman 2010, Horwitz 1977, and Horwitz 1992 are especially good at linking changes in law to the political and economic development of the nation, enlivening struggles between competing understandings of law. White 2012 provides a widely accessible revisionist history of law as a means of understanding American development. Hoffer, et al. 2007 is smartly organized, lures readers in with its lively writing, and offers a fine introduction to each specific court and its members and agenda, quoting from opinions and dissents with particular attention to struggles over race, gender, workers’ rights, and key provisions of the Bill of Rights.

• Friedman, Lawrence M. A History of American Law. 3d ed. New York: Simon and Schuster, 2010.

  Now in a revised third edition (first published in 1973), Friedman’s classic and engaging treatment links the development of law to political and economic developments in the United States. Friedman includes the growing practice of judicial review of state statutes and criticizes state courts’ use of due process to protect private property rights.

• Hall, Kermit L., and Peter Karsten. The Magic Mirror: Law in American History. 2d ed. New York: Oxford University Press, 2009.

  Evolution of American legal culture and social, institutional foundations of American law; offers an extremely useful context for students. Includes 19th-century law of domestic relations; race and the law of personal status; property law, economic relations, industrialization. Law as a magic mirror allowing historians to explore moral imperatives and social choices of earlier generations. First edition published in 1989.

• Hoffer, Peter Charles, Williamjames Hull Hoffer, and N. E. H. Hull. The Supreme Court: An Essential History. Lawrence: University Press of Kansas, 2007.

  Historians, including the editors of the Landmark Law Cases and American Society series (Kansas), arrange this overview by court, situating members, issues, cases, and conflicts on and off the court in a highly readable, illustrated volume. Cases selected reflect ways each court understood law in relation to society and polity. Includes a bibliographic essay.

• Horwitz, Morton J. The Transformation of American Law, 1780–1860. Cambridge, MA: Harvard University Press, 1977.

  Horwitz links developments in law and legal culture to broader developments and struggles in the history of American politics, economy, and culture, focusing especially on how economic conflict helped transform antebellum law. Winner of the Bancroft Prize in American History.

• Horwitz, Morton J. The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.

  Linking developments in law and legal culture to broader developments and struggles in economy, polity, and society, this volume focuses on Progressive Era challenges to legal orthodoxy, the Lochner era, legal realism, and the enduring legacy of Progressive Era transformations.

• Katz, Stanley N., ed. Oliver Wendell Holmes Devise History of the Supreme Court of the United States. 12 vols. New York: Cambridge University Press, 2006–.

  Each volume in this chronological treatment is written by one or two eminent constitutional historians specializing in the period. The series, not yet complete as of 2012, is designed to constitute a definitive history of the court, examines cases and major legal controversies of the era; sets the court agenda within a historical and political context. A number of volumes are organized by the justice who presided during the period.

• Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993.

  Designed to serve as an authoritative one-volume history of the Supreme Court. Theme is that the court both reflects the development of society and helps move that society toward the felt necessities of the day. Sees law as a check on governmental power. Highly readable, with a focus on the John Marshall through the William Rehnquist courts, jurisprudence, and some prominent cases.

• White, G. Edward. Law in American History: From the Colonial Years through the Civil War. New York: Oxford University Press, 2012.

  First of three planned volumes situating US law and judicial history in a wider context. Law, broadly defined, codifies cultural norms and also influences culture. Considers interaction between European and Amerindian legal systems, the influence of state constitutions, the legal history of Confederate and Union governments during the Civil War; strong attention to African Americans, women, and Native Americans.