by Jeffrey Brandon Morris. Minneapolis: University of Minnesota Press, 2007. 441pp. Cloth. $39.95. ISBN: 9780816648160.
Reviewed by Daniel Reynolds, College of Law, Northern Illinois University. Email: danreynolds [at] niu.edu.
Students of America’s courts come to their subject from a variety of perspectives that do not always play well together. Legal scholars and political scientists can sometimes seem in need of a mutual translator as they probe and describe various aspects of the same elephant. Some of this disconnect may be attributable to an excess of attention from both camps to the work of the United States Supreme Court. There appears a seemingly intractable reluctance on the part of “legal science” (so to speak) to admit forthrightly the inescapably political nature of the Supreme Court’s exercise of its largely discretionary jurisdiction. For its part, some political science can strike a lawyer as being too quick to dismiss the internal premises of adjudication, too quick to quantify only a manageable corner of a larger process of complex interactivity among uncertain variables and pronounce that corner representative of the whole.
Some help for this may be had in turning attention away from the fewer than 100 annual opinions of the United States Supreme Court and looking at the vast law machine grinding away beneath it. There, in pride of place, are the twelve United States Courts of Appeals and the more than 50,000 dispositions they produce each year. A number of fresh looks at the product and the process of these courts are recently on offer: from an empirical, quantitative analysis (Cross 2007) to a richly qualitative and theoretical view from inside the tent by a most perceptive and prolific scholar-judge sitting on the Court of Appeals itself (Posner 2008). Yet a third way of addressing the imbalance is offered by the present work under review: a narrative historical account of one of the Courts of Appeals, from its earliest presence on the raw frontier of what we now call the Midwest down to the present day.
The author, Jeffrey Brandon Morris, is a scholar of both political science and law with a strong pedigree in history as well. (He co-edited the ENCYCLOPEDIA OF AMERICAN HISTORY with his late father, the eminent colonial and constitutional historian Richard Morris.) Morris has made previous forays into this largely uncharted territory with institutional histories of the very important Second Circuit (covering New York as well as Connecticut and Vermont) and the Court of Appeals for the District of Columbia Circuit (the nation’s premiere administrative law court and a fertile source of Supreme Court nominees.) With the present volume from the University of Minnesota Press he turns to the heartland – the Eighth Circuit Court of Appeals, whose writ today runs from Minnesota [*439] and the Dakotas through Nebraska, Iowa, Missouri and Arkansas.
To the author’s credit (and that of his apparent sponsor, the Eighth Circuit Historical Society), he avoids the worst pitfalls of commissioned institutional histories. There is no artificial teleology here, no inevitable progress toward the best of all possible presents. Morris’ voice is narrative, reportorial; the presentation, chronological; the point-of-view, decidedly neutral. He is simply recounting a story, unencumbered by the “higher criticism,” grand theory or the crochets of statistical analysis.
In each of seven chronologically-ordered chapters, Morris provides a capsule biography of each judge who sat during the period under review and an analytic, topical summary of the court’s jurisprudential output. Inevitably, some lives (and some cases) are more interesting than others. And the cumulative effect of encountering so many long-forgotten white males (as they all were, up until the most recent of times), most with apparently useful political connections, confronting such a range of disputes, all concisely described, could be (and, in truth, sometimes is) mind-numbing. What saves the effort, however, are the author’s attempts to contextualize these judges and their work within the bigger picture of social and political developments both locally and in the nation at large. With only the occasional lapse (as in some 19th century senators’ “noses out of joint”), Morris’ gifts at historical narrative are on display throughout, as in his description of the devastating impact of the Great Depression on people coming before the court in the 1930s or in his engaging and even moving setting of the scene for the court’s confrontations with apartheid in Arkansas and the Little Rock school cases.
Along the way, the book provides a useful reminder of the importance of judicial administration – broadly conceived as the nuts-and-bolts structure and functioning of the court system, a subject on which the author has written elsewhere (Morris 1981). His description of the early (pre-1891) incarnations of the court, including the era of Supreme Court justices “riding circuit,” is quite evocative. The historically-minded may hear in Morris’ account of the 19th century echoes of 12th century England and Henry II’s royal justices fanning out from London to create a law common to all England. The sea change of 1891, imposed by Congress, is appropriately emphasized as not only the birth of the Courts of Appeals in their current form but also, and as a consequence, the elevation of the Supreme Court to its now-familiar Olympian status as our national constitutional court with a self-limited, largely discretionary jurisdiction. From 1891, the Courts of Appeals are the real de facto courts of last resort for the burgeoning reach of federal law. And from that date they are exquisitely positioned to perfect their role as the strong centralizing force which Morris ascribes to them.
The genre of institutional history has its shortcomings. Institutions, particularly ones embedded within a set of larger historical processes, do not necessarily display a constant or even compelling theme. And the pressure for comprehensive inclusion itself precludes the more detailed, more nuanced [*440] elaboration of salient points that might otherwise be expected in such an undertaking. That said, the collation of the historical record in this work achieves its purpose and brings into focus the work of a major player in the American judicial order.
This volume is a natural acquisition for any college, university or law library, where it may find its highest and best use simply by sparking that curiosity which leads to further reading and learning. It could prove a rich source for launching a flood of seminar papers, reports and theses. Who but a specialist knew, for example, that North Dakota once experimented with “nationalizing” its banks and granaries? Or that there once was, in the early years of the 20th century, a short-lived but full-blown Article III United States Commerce Court? These nuggets, and many, many others, are scattered throughout the narrative and enliven what otherwise might have been a tedious catalog. It is good to be reminded that, whether coming at our subject with the tools of political science or of academic law, at some level we are all doing history.
In this regard, however, the publisher must be faulted for an all too frequent sin of omission in academic publishing today – the absence of a bibliography of cited works, sources and cases or even a simple “Suggestions for Further Reading.” The story itself is fully documented by the author and richly end-noted (including some intriguing citations to unpublished work of the estimable Richard Arnold, the scholar-judge of the modern Eighth Circuit whose elevation to the Supreme Court by fellow Arkansan William Clinton was prevented only by Arnold’s untimely and ultimately fatal illness.) With enough back-digging through the usual underbrush of ibids and op cits one could, of course, do the work oneself. But what, after all, is the justification of the university-housed publication enterprise in the first place, if not to ease the path to the diffusion of knowledge even in this most mechanical aspect of the task?
Cross, Frank B. 2007. DECISION MAKING IN THE U.S.COURTS OF APPEALS. Stanford: Stanford University Press.
Morris, Jeffrey Brandon. 1981. “The Changing Federal Courts” 34 PROCEEDINGS OF THE ACADEMY OF POLITICAL SCIENCE 90-103.
Morris, Richard B., and Jeffrey Brandon Morris (eds). 1996. ENCYCLOPEDIA OF AMERICAN HISTORY. New York: HarperCollins.
Posner, Richard A. 2008. HOW JUDGES THINK. Cambridge: Harvard University Press.
© Copyright 2008 by the author, Daniel Reynolds.