Balkinization
an unanticipated consequence of
Jack M. Balkin
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Recent Posts
Was the Warren Court Unusual in American History?
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Saturday, May 31, 2008
Was the Warren Court Unusual in American History?
JB
Following up on Mark Graber's most recent post on the Supreme Court, consider why we might expect that the Supreme Court will not in fact produce principled results significantly superior to those produced by the national political process. One reason, famously suggested by Yale political scientist Robert Dahl, is that the U.S. Supreme Court tends, over time, to cooperate with the views of the dominant national political coalition. It does this by ratifying and legitimating most of the results of the national political process, by policing state and local governments so that they stay roughly in line with the views of national political elites, and (as Mark himself has pointed out) by acting as a political backstop to resolve controversies that national politicians would rather not have to take responsibility for.
The Supreme Court does tend to slow down rapid change when there is a shift in political regimes (and accompanying constitutional values), but eventually it goes along because new Justices appointed by the dominant national coalition replace older ones.
From this perspective, the Supreme Court is likely to be a conservative institution, conservative not necessarily in the sense of politically conservative but in the sense of maintaining constitutional values over extended periods of time and not straying too far from the center of political power in the country.
This also explains why during the height of the Warren Court period from 1962 to 1969, the Supreme Court made so many liberal decisions. The dominant forces in the national political process were also quite liberal during these years, and Lyndon Johnson, running as a liberal, won a landslide victory in 1964. The Warren Court struck down comparatively few Congressional laws during this period: indeed, it went out of its way to uphold Congress's important civil rights acts in 1964 and 1965. The Warren Court mostly exercised judicial review over state governments, particularly in the South, reforming the criminal justice system, secularizing the public schools, outlawing malapportionment in state legislatures, and protecting black civil rights. After the 1968 election, four Nixon appointees began to shift the Court to the right (on some issues but not others), reflecting changes occurring in national politics.
In this respect the Warren Court is not an outlier. It was a relatively faithful reflection of its times-- the high water mark of the liberal political consensus in America, a consensus that was shattered with the 1968 election.
The historical memory of the Warren Court as a particularly activist court at odds with the nation's values is largely a myth. This myth is a form of winner's history: it reflects the eventual success of the New Right (as well as regional majorities in the South) in changing understandings of American politics and the American Constitution. Attacks on the federal judiciary by conservative social movements, combined with a series of cultural, social and racial issues, helped conservatives win political power in the decades that followed. This, in turn, helped produce a federal judiciary that was more conservative on many issues but that also, like the Warren Court itself, reflected the politics of its own time.
Posted
7:25 AM
by JB [link]
Comments:
As Finley Peter Dunne's creation noted around a hundred years ago, cleaning up the brogue, "No matter whether the country follows the flag or not, the Supreme Court follows the election returns."
Maybe not exactly, but we have an indirectly democratic judiciary. The NYT recently had an article on how our elective judiciary (state courts) is an outlier among nations. Well, the chart they supplied suggested even a legislatively confirmed judiciary like ours is fairly special.
And, the result, with a time lag at times, is that the justices in a rough fashion reflects the electorate. Justice Scalia doesn't reflect the electorate, even if Republican presidents use him as a model. Like it or not, a Kennedy does. A Roberts or Alito, conservative but only so far, might as well.
I say "rough." By temperment, restraint by the Constitution and other factors, and so forth judges don't directly follow the public will, though they might follow a certain idealized view of it.
But, if you don't want judges to roughly follow the election returns, don't let them greatly determine who gets the job.
Maybe not exactly, but we have an indirectly democratic judiciary. The NYT recently had an article on how our elective judiciary (state courts) is an outlier among nations. Well, the chart they supplied suggested even a legislatively confirmed judiciary like ours is fairly special.
And, the result, with a time lag at times, is that the justices in a rough fashion reflects the electorate. Justice Scalia doesn't reflect the electorate, even if Republican presidents use him as a model. Like it or not, a Kennedy does. A Roberts or Alito, conservative but only so far, might as well.
I say "rough." By temperment, restraint by the Constitution and other factors, and so forth judges don't directly follow the public will, though they might follow a certain idealized view of it.
But, if you don't want judges to roughly follow the election returns, don't let them greatly determine who gets the job.
We had a number of more radical political change periods in our history such as the Jacksonian and Progressive periods, but the Court did not engage in wholesale rewriting of the Constitution until the New Deal, Warren and Burger courts.
This is a 20th Century leftist phenomenon.
This is a 20th Century leftist phenomenon.
Regarding the LBJ years, Joseph Califano, Jr. has an interesting Op-Ed in today's Washington Post, reminding the Democratic candidates not to ignore LBJ (just because of Vietnam).
I took ConLaw in the fall of 1952, pre-Warren Court. There had been for some years a recognition at the bar nationally that individual rights of criminal defendants were often given short shrift. Considering what the Warren Court accomplished for individual rights (criminal and otherwise), what might the practice of law look like today but for the Warren Court? For example, look at all the benefits accruing to defense counsel in DUI cases. Who remembers the old days of the police officer's testimony: "There was a strong odor of alcohol on the defendant's breath, he was unsteady on his feet, he slurred his words, and in my opinion he was drunk."
I took ConLaw in the fall of 1952, pre-Warren Court. There had been for some years a recognition at the bar nationally that individual rights of criminal defendants were often given short shrift. Considering what the Warren Court accomplished for individual rights (criminal and otherwise), what might the practice of law look like today but for the Warren Court? For example, look at all the benefits accruing to defense counsel in DUI cases. Who remembers the old days of the police officer's testimony: "There was a strong odor of alcohol on the defendant's breath, he was unsteady on his feet, he slurred his words, and in my opinion he was drunk."
shag:
I took ConLaw in the fall of 1952, pre-Warren Court. There had been for some years a recognition at the bar nationally that individual rights of criminal defendants were often given short shrift. Considering what the Warren Court accomplished for individual rights (criminal and otherwise), what might the practice of law look like today but for the Warren Court? For example, look at all the benefits accruing to defense counsel in DUI cases. Who remembers the old days of the police officer's testimony: "There was a strong odor of alcohol on the defendant's breath, he was unsteady on his feet, he slurred his words, and in my opinion he was drunk."
:::chuckle:::
Police officers still can and routinely do provide such testimony.
The appearance and actions of the suspect are personal observations and, with a reasonable foundation, an officer or any other witness can give the lay opinion that the suspect appeared intoxicated.
What changed DUI fundamentally were statutes which allowed the jury to engage in a rebuttable presumption that the defendant was intoxicated if he or she has a blood or breath alcohol reading above the legal limit. These statutes survived constitutional challenge without much problem so long as the assumption is rebuttable.
shag, you haven't had some up close and personal experience with DUI from which this question is derived, do you?
;^)
I took ConLaw in the fall of 1952, pre-Warren Court. There had been for some years a recognition at the bar nationally that individual rights of criminal defendants were often given short shrift. Considering what the Warren Court accomplished for individual rights (criminal and otherwise), what might the practice of law look like today but for the Warren Court? For example, look at all the benefits accruing to defense counsel in DUI cases. Who remembers the old days of the police officer's testimony: "There was a strong odor of alcohol on the defendant's breath, he was unsteady on his feet, he slurred his words, and in my opinion he was drunk."
:::chuckle:::
Police officers still can and routinely do provide such testimony.
The appearance and actions of the suspect are personal observations and, with a reasonable foundation, an officer or any other witness can give the lay opinion that the suspect appeared intoxicated.
What changed DUI fundamentally were statutes which allowed the jury to engage in a rebuttable presumption that the defendant was intoxicated if he or she has a blood or breath alcohol reading above the legal limit. These statutes survived constitutional challenge without much problem so long as the assumption is rebuttable.
shag, you haven't had some up close and personal experience with DUI from which this question is derived, do you?
;^)
Here in MA several statutes were adopted that but for the Warren Court's decisions on individual rights most likely would not have been enacted that assist DUI counsel in the defense of his client, one being the right of the defendant to have a blood test by the physician of his choice. There are other statutory provisions of similar benefit.
I don't drink and drive (although Lisa's bro could drive one to drink), having mellowed over the years. I drink only while eating; of course, I eat all the time.
In the early years of my practice when there was such a thing as a trial attorney (litigators are not trial attorneys, thank you), defending a DUI defendant before a district court (when there were no juries in MA district courts), the type of police testimony I described was routinely accepted by the judge, who would listen to the same cops, over and over, week in, week out, with virtually identical testimony, resulting in virtually automatic guilty findings. Of course, if the client could afford it, there was always the right to appeal to the superior court and claim a jury trial, at which time an ADA (as opposed to a police/prosecutor) might be amenable to a more favorable resolution than that of the district court judge.
Perhaps there are texts on handling DUI cases that may provide a detailed history outlining the increasing means for defending the DUI defendant as a result of the Warren Court.
So here's to the Warren Court for giving DUI counsel and all counsel representing criminal defendants the tools to better defend their clients. I'll have a Bombay (regular) Bloody Mary, no celery, with heat, lime and skewered pickled grape tomatoes. Lisa's bro can have the celery to stalk with. Cheers. (No offense, Arne.)
I don't drink and drive (although Lisa's bro could drive one to drink), having mellowed over the years. I drink only while eating; of course, I eat all the time.
In the early years of my practice when there was such a thing as a trial attorney (litigators are not trial attorneys, thank you), defending a DUI defendant before a district court (when there were no juries in MA district courts), the type of police testimony I described was routinely accepted by the judge, who would listen to the same cops, over and over, week in, week out, with virtually identical testimony, resulting in virtually automatic guilty findings. Of course, if the client could afford it, there was always the right to appeal to the superior court and claim a jury trial, at which time an ADA (as opposed to a police/prosecutor) might be amenable to a more favorable resolution than that of the district court judge.
Perhaps there are texts on handling DUI cases that may provide a detailed history outlining the increasing means for defending the DUI defendant as a result of the Warren Court.
So here's to the Warren Court for giving DUI counsel and all counsel representing criminal defendants the tools to better defend their clients. I'll have a Bombay (regular) Bloody Mary, no celery, with heat, lime and skewered pickled grape tomatoes. Lisa's bro can have the celery to stalk with. Cheers. (No offense, Arne.)
I agree with JB that the role of the Court in most eras has been conservative in the sense of upholding the status quo. This is almost inevitable in a system that bases its decisions on stare decisis. The idea that the courts can be agents of social change is a historical anomaly, although it is the baseline view of the baby boom generation, as a result of the Warren Court.
So why was the Warren Court the Warren Court? I believe there are three reasons: the Depression, World War II and race.
The Depression was felt so widely and deeply throughout America that it affected everyone's world view. The states, presumptively responsible for the health and welfare of their people, were prostrate. The national economy was in panic. Mass migrations from the South and mid-West to the northern and western cities were underway. There was no government other than the federal government to mobilize a response, and if the Constitution did not permit such a response, the US faced a foundational failure such as occurred in European countries.
World War II was another universal American experience. It brought us in conflict with a police state, where wiretapping, discretionary searches, identity cards and kangaroo courts were the norm, and made us reconsider what we meant by democracy and civil liberties. The accomplishments/sacrifices of blacks on the battlefield, the role of women in production, revulsion at the ferocity of anti-Japanese sentiment, and the racial basis of the Holocaust forced Americans to reconsider the appropriate role of racial and sexual classifications.
Slavery was a fundamental divide maintained by the Constitution, resolved by the Civil War. But the racial basis of slavery was not. The battle over Reconstruction reflected in the Slaughterhouse cases, the rise of Redeemer governments in the South reflected in Plessy, and the federalization of segregation under Wilson and J. Edgar Hoover repressed blacks. At the same time, the NAACP under the ideological leadership of WEB DuBois maintained a decades-long struggle against segregation. The raising of public consciousness of mob and legal lynchings raised moral outrage. The effort to maintain segregation led to political stasis in the south -- the Byrd machine in Virginia, the Talmadge machine in Georgia, the refusal to redistrict in Tennessee -- which was self-sustaining and irremedible within the context of state government.
Thus, the time was ripe for fundamental changes that could not be contained or even addressed within the existing legal regime. The Warren Court became an agent of social change because the (luckily) Cold War could not be fought with the country splitting along these fault lines. The Court was able to reduce the intensity of the social quake by permitting or compelling social change.
The problem with the approach of "if you want social change, amend the Constitution", beyond the obvious problems of super-majority and entrenched interests in the status quo, is that amendments have been the consequence of successful social change, not their means of attainment. The direct election of senators, the Civil War Amendments, the poll tax amendment and the 18-year-old vote were achieved after the social victory. But where social victory requires disruption of the constitutional state, isn't it better that the Court take a role?
Not many years ago, there was a movement toward calling a constitutional convention, which came dangerously close (2 states I believe). The idea that the whole constitution could be up for grabs was totally frightening, given that people the likes of Washington, Franklin, Madison and Hamilton to serve as delegates are in short supply. Isn't it better to have the scope of the commerce clause be adjustable by a court? Even if the Court makes a mistake in defining the nature of state-federal relationships (e.g. Hans v. La and the Rehnquist-era federalism cases), isn't it better to do so than to require amendments to permit the New Deal? Isn't that better than packing the Court to permit the New Deal (compare the changes in court size during the mid-19th century)?
We are not guaranteed a progressive judiciary; indeed, the odds are against it. But it is better to have an auxiliary engine of social change than not.
So why was the Warren Court the Warren Court? I believe there are three reasons: the Depression, World War II and race.
The Depression was felt so widely and deeply throughout America that it affected everyone's world view. The states, presumptively responsible for the health and welfare of their people, were prostrate. The national economy was in panic. Mass migrations from the South and mid-West to the northern and western cities were underway. There was no government other than the federal government to mobilize a response, and if the Constitution did not permit such a response, the US faced a foundational failure such as occurred in European countries.
World War II was another universal American experience. It brought us in conflict with a police state, where wiretapping, discretionary searches, identity cards and kangaroo courts were the norm, and made us reconsider what we meant by democracy and civil liberties. The accomplishments/sacrifices of blacks on the battlefield, the role of women in production, revulsion at the ferocity of anti-Japanese sentiment, and the racial basis of the Holocaust forced Americans to reconsider the appropriate role of racial and sexual classifications.
Slavery was a fundamental divide maintained by the Constitution, resolved by the Civil War. But the racial basis of slavery was not. The battle over Reconstruction reflected in the Slaughterhouse cases, the rise of Redeemer governments in the South reflected in Plessy, and the federalization of segregation under Wilson and J. Edgar Hoover repressed blacks. At the same time, the NAACP under the ideological leadership of WEB DuBois maintained a decades-long struggle against segregation. The raising of public consciousness of mob and legal lynchings raised moral outrage. The effort to maintain segregation led to political stasis in the south -- the Byrd machine in Virginia, the Talmadge machine in Georgia, the refusal to redistrict in Tennessee -- which was self-sustaining and irremedible within the context of state government.
Thus, the time was ripe for fundamental changes that could not be contained or even addressed within the existing legal regime. The Warren Court became an agent of social change because the (luckily) Cold War could not be fought with the country splitting along these fault lines. The Court was able to reduce the intensity of the social quake by permitting or compelling social change.
The problem with the approach of "if you want social change, amend the Constitution", beyond the obvious problems of super-majority and entrenched interests in the status quo, is that amendments have been the consequence of successful social change, not their means of attainment. The direct election of senators, the Civil War Amendments, the poll tax amendment and the 18-year-old vote were achieved after the social victory. But where social victory requires disruption of the constitutional state, isn't it better that the Court take a role?
Not many years ago, there was a movement toward calling a constitutional convention, which came dangerously close (2 states I believe). The idea that the whole constitution could be up for grabs was totally frightening, given that people the likes of Washington, Franklin, Madison and Hamilton to serve as delegates are in short supply. Isn't it better to have the scope of the commerce clause be adjustable by a court? Even if the Court makes a mistake in defining the nature of state-federal relationships (e.g. Hans v. La and the Rehnquist-era federalism cases), isn't it better to do so than to require amendments to permit the New Deal? Isn't that better than packing the Court to permit the New Deal (compare the changes in court size during the mid-19th century)?
We are not guaranteed a progressive judiciary; indeed, the odds are against it. But it is better to have an auxiliary engine of social change than not.
As to alcohol, a key Warren precedent is Powell v. Texas, that rejected a claim that a law against public drunkenness was unconstitutional.
As to rf, good conversation, but it's useful to note chance was involved too. Two key votes, Warren and Brennan, were appointed by Ike largely for political reasons. The Court ended earlier than it might have because of the early resignations of Goldberg and his replacement Fortas.
And, the early deaths of libs Rutledge and Murphy led to a delay of it starting in earnest. BTW, Lucas Powe wrote a good book on the Court.
As to rf, good conversation, but it's useful to note chance was involved too. Two key votes, Warren and Brennan, were appointed by Ike largely for political reasons. The Court ended earlier than it might have because of the early resignations of Goldberg and his replacement Fortas.
And, the early deaths of libs Rutledge and Murphy led to a delay of it starting in earnest. BTW, Lucas Powe wrote a good book on the Court.
The opinions of the Warren Court reflected not simply the dominant political party, but the broader political circumstances as well. The McCarthy period was ending, and the civil rights movement and the Vietnam War were in full swing. An emphasis on equality - between black and white, and between rich and poor - ran throughout the Court's decisions. Ah, for the good old days!
r. friedman turns the Warren Era complaint on its head when he says:
"The Warren Court became an agent of social change because the (luckily) Cold War could not be fought with the country splitting along these fault lines."
In other words, without the social cohesion reflected, caused, stimulated or ordered by the Court, US national security would be threatened. The ultimate end is protection of the sovereign state, surely a conservative value.
"The Warren Court became an agent of social change because the (luckily) Cold War could not be fought with the country splitting along these fault lines."
In other words, without the social cohesion reflected, caused, stimulated or ordered by the Court, US national security would be threatened. The ultimate end is protection of the sovereign state, surely a conservative value.
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"Isn't it better to have the scope of the commerce clause be adjustable by a court? Even if the Court makes a mistake in defining the nature of state-federal relationships (e.g. Hans v. La and the Rehnquist-era federalism cases), isn't it better to do so than to require amendments to permit the New Deal?"
No.
No, because then you don't really have a constitution. You're just pretending you do. Constitutions really, truly, DO get in the way of the government doing what it wants sometimes, unless they're amended to change their meaning.
That's their function. To tell the government it can't do some things without assembling supermajority support to change the rules. Governments have never needed constitutions to exist or function, constitutions are to limit government. And when a constitution is treated the way you propose, it can't limit it's government.
So, no. It's not better.
No.
No, because then you don't really have a constitution. You're just pretending you do. Constitutions really, truly, DO get in the way of the government doing what it wants sometimes, unless they're amended to change their meaning.
That's their function. To tell the government it can't do some things without assembling supermajority support to change the rules. Governments have never needed constitutions to exist or function, constitutions are to limit government. And when a constitution is treated the way you propose, it can't limit it's government.
So, no. It's not better.
I think there's an interesting question as to whether the Supreme Court follows public opinion or whether it follows elite opinion. The two are not the same, after all; e.g., elites are much more supportive of rights to burn the flag than the public is. Alternatively, was the public supportive of the Warren Court decisions defending the rights of "criminals"?
It makes sense that the Court would follow elite opinion more than popular opinion, since the Court is drawn exclusively from the ranks of who have gone to a few top law schools, which are almost exclusively populated by those who were born to privilege, and was even moreso until recently.
It makes sense that the Court would follow elite opinion more than popular opinion, since the Court is drawn exclusively from the ranks of who have gone to a few top law schools, which are almost exclusively populated by those who were born to privilege, and was even moreso until recently.
The Supremes cannot be reasonably thought to be following public opinion when they rewrite the Constitution to:
1) create positive law which cannot be enacted democratically (See homosexual "marriage").
2) create or eliminate negative rights or positive law which cause majority popular backlashes.
The Supremes are drawn from the elite of society and are not subject to democratic accountability. They are far more akin to an aristocracy than the common citizenry and therefore can hardly be expected to represent the will of that citizenry.
The power granted to democratically elected representatives corrupts, but absolute judicial power corrupts absolutely.
1) create positive law which cannot be enacted democratically (See homosexual "marriage").
2) create or eliminate negative rights or positive law which cause majority popular backlashes.
The Supremes are drawn from the elite of society and are not subject to democratic accountability. They are far more akin to an aristocracy than the common citizenry and therefore can hardly be expected to represent the will of that citizenry.
The power granted to democratically elected representatives corrupts, but absolute judicial power corrupts absolutely.
"Ah, for the good old days!"
Indeed, Marjorie. But being a Berkeley alum of the 67-69 period I remember the desperate sense of things coming apart that filled the air.
Joe, thanks for bringing up the names of the sainted Frank Murphy and Wiley Rutledge.
Indeed, Marjorie. But being a Berkeley alum of the 67-69 period I remember the desperate sense of things coming apart that filled the air.
Joe, thanks for bringing up the names of the sainted Frank Murphy and Wiley Rutledge.
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Books by Balkinization Bloggers
Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024)
Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023)
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
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Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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