by Edward F. Mannino. Columbia, SC: University of South Carolina Press, 2009. 328pp. Cloth. $44.95. ISBN: 9781570038570.
Reviewed by Bradley D. Hays, John D. MacArthur Assistant Professor of Political Science, Union College. Email: haysb [at] union.edu.
In the past decade, books abridging the history of the Supreme Court to a single volume proliferated. These volumes attempt to condense the broad sweep of the Supreme Court history into a concise narrative by periodizing cases and highlighting critical, controversial, and/or transformative cases. Given the obvious utility of such scholarship to courses focused on constitutional cases, most every academic press seemingly must publish one in the hopes of securing their portion of the undergraduate and graduate text market. Edward Mannino joins these ranks with SHAPING AMERICA: THE SUPREME COURT AND AMERICAN SOCIETY. Given that the readership of the LAW AND POLITICS BOOK REVIEW is familiar with both the history of the Supreme Court and brief narratives of that history, I will not summarize the book but rather focus on its distinguishing characteristics and a few strengths and weaknesses.
Unlike many brief histories of the Supreme Court, SHAPING AMERICA periodizes its account through the dominant or defining phase of development. It uses three such groupings: (1) the construction of federal power from 1789-1860; (2) the struggle to limit federal and state regulation of commercial activity from 1865-1960; and (3) what one might describe as the rise and retreat from coercive federalism and the corresponding rights revolution. This is a departure from several similar works that periodize the Supreme Court through whoever occupies the chief justiceship (see Langran 2004; Hoffer, Hoffer, and Hull 2007). This has several advantages. First, it allows Mannino to explain cases that appear to be outliers when categorized under a chief justiceship. For example, PRIGG v. PENNSYLVANIA and SWIFT v. TYSON both occur under Taney’s leadership and long after Hamiltonian nationalist visions had been chastened. Yet, both cases promote federal power and restrain the influence of state policy. Second, it allows for the tying together of seemingly dissimilar cases. GIBBONS v. OGDEN and PRIGG v. PENNSYLVANIA are rarely grouped together, but both can be understood as federalizing control over a distinct policy area, which SHAPING AMERICA makes clear. Third, it deemphasizes the importance of any one justice. Mannino rightly identifies the importance and influence of Marshall, but he also weaves a narrative that demonstrates that the Court as an institution carries forth certain prerogatives. After all, the Court is an institution, not simply the office-building of great justices.
The second distinctive feature of the book is also organizational. Within the larger periodization, Mannino organizes [*346] chapters and sub-sections within chapters to permit assigning smaller portions of the book in a constitutional law or history course. SHAPING AMERICA provides a rich historical account of the canon of great cases, which textbooks regularly fail to provide. Adopting the book as a supplement to a case book will give students a much greater appreciation of the social, economic, and political context in which these cases were decided.
SHAPING AMERICA is well written and researched, yet, it relies heavily on the legal history literature and does not account for any of the major works of historical institutionalism produced by political scientists in the past two decades. This leaves the work without important insights revealed by these scholars. To demonstrate this point, I provide two examples. Mannino relies on the conventional explanation of the CIVIL RIGHTS CASES with an assessment through the dichotomous lens of social versus political rights – the latter protected, the former not. Again, this is the conventional narrative but as Pamela Brandwein reveals, it is mistaken. Such explanations rely on a rights paradigm that emerged in the 1930s but did not exist when the CIVIL RIGHTS CASES were decided. As Brandwein explains, the CIVIL RIGHTS CASES are best understood through a 19th Century concept termed “state neglect,” which assumes “an affirmative duty to administer laws protecting physical security and property (but not access to public accommodations) equally on the basis of race” (2006, 275). Accounting for state neglect permits one to understand the consistency in seemingly inconsistent cases like the CIVIL RIGHTS CASES and WICK YO v. HOPKINS. WICK YO protects physical property on the basis of race (i.e. the workplaces of Chinese laundries) and is, thus, consistent with state neglect. Absent an account of state neglect, SHAPING AMERICA can only describe WICK YO, somewhat lamely, as “a beacon for the oppressed” (p.69).
Similarly, Howard Gillman (1993) identifies the origins of LOCHNER v. NEW YORK as rooted in a long standing hostility to class legislation – a hostility that appears in Federalist 10 and Andrew Jackson’s Bank Veto. What the 14th Amendment’s due process clause canonized, then, was a commitment to neutrality among factions (e.g. the races; the economic classes). SHAPING AMERICA contains no such account of the origins of substantive due process as it manifests in LOCHNER. Rather, the account provided gives the impression that LOCHNER and its scion are a product of conservative jurists rather than long standing principles (p.89). Again, this is the conventional narrative but one that ignores important scholarship on a critical constitutional case.
While such oversights are troubling, SHAPING AMERICA is otherwise an accessible and comprehensive narrative of the Supreme Court’s history. Mannino’s prose animates judicial politics in fresh and dynamic ways, which will appeal to lay readers and students alike. I doubt that it will take the place of more established histories of the Court such as Robert McCloskey and Sanford Levinson’s THE AMERICAN SUPREME COURT (2005) or Lucas A. Powe, Jr.’s excellent THE SUPREME COURT [*347] AND THE AMERICAN ELITE, 1789-2008 (2009), but that does not detract from the work itself. For those looking for a supplement to a case book or an introductory history to the Court, SHAPING AMERICA is worth careful consideration.
Brandwein, Pamela. 2006. “The Civil Rights Cases and the Lost Language of State Neglect,” in THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT (ed.) Ronald Kahn and Ken I. Kersch. Lawrence: University Press of Kansas.
Gillman, Howard. 1993. THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham: Duke University Press.
Hoffer, Peter Charles, Williamjames Hull Hoffer, and N.E.H. Hull. 2007. THE SUPREME COURT: AN ESSENTIAL HISTORY. Lawrence: University Press of Kansas.
Langran, Robert W. 2004. THE SUPREME COURT: A CONCISE HISTORY. New York: Peter Lang.
McCloskey, Robert G. and Sanford Levinson. 2005. THE AMERICAN SUPREME COURT (4th edition). Chicago: University of Chicago Press.
Powe, Jr., Lucas A. 2009. THE SUPREME COURT AND THE AMERICAN ELITE, 1789-2008. Cambridge: Harvard University Press.
GIBBONS v. OGDEN, 22 U.S. 1 (1824)
PRIGG v. PENNSYLVANIA, 41 U.S. 539 (1842)
WICK YO v. HOPKINS, 118 U.S. 356 (1886)
SWIFT v. TYSON, 41 U.S. 1 (1842)
© Copyright 2010 by the author, Bradley D. Hays.