Wasby, Stephen L.

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Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 1963 Issue 4 January 1963 Review of “Justice and the Supreme Court,” By Rocco J. Tresolini Stephen L. Wasby State University of New York, Albany Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Judges Commons Recommended Citation Stephen L. Wasby, Review of “Justice and the Supreme Court,” By Rocco J. Tresolini, 1963 WASH. U. L. Q. 523 (1963). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1963/iss4/5 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWJUSTICE AND THE SUPREME COURT. Rocco J. Tresolini. Phila-delphia, Penn.: J. R. Lippincott Co. 1963. Pp. 205. $1.45.In this new paperback volume, Professor Tresolini1 brings togethereight studies of individual justices of the United States SupremeCourt and important cases in which they participated. It is anattempt to provide the student of American government with ma-terials on both judicial biography and civil liberties cases. In eachstudy the author presents a brief biography of the Justice followedby a description and analysis of a leading civil liberties case in whichthat Justice participated, with particular attention to that man'swritten opinion in the case.The volume, presented as "a beginning rather than the completion ''2of Professor Tresolini's researches into the lives and times of SupremeCourt justices, includes several studies, parts of which previouslyappeared in various periodicals as well as some presented for the firsttime in this collection.The earliest judge chosen for discussion is Chief Justice Taney. Itmay be questioned whether Ex Parte Merryman3 is an appropriatecase for this volume, in view of the fact that it was decided by Taneyduring his circuit duties rather than by the Supreme Court. Treso-lini's justification for its inclusion is that it was "the first mightyblow in federal court history on behalf of individual liberties." Thatmay be, but it seems somewhat out of place in a collection in whichall the remaining selections deal with Supreme Court rulings.After Taney, the author selects for examination Chief Justice Waiteand his opinion for the Court in Reynolds v. United States,5 whichinvolved the Mormon practice of plural marriage and the FirstAmendment. This study has a defect common in some degree toseveral of the others in this volume. The author provides a concisebiography of Waite, but in doing so he does little or nothing to suggestwhat in Waite's background or pre-judicial experience might haveled him to interpret the First Amendment as permitting the outlawingof polygamy when practiced as part of a religion. If judicial biog-raphy is going to be offered in connection with specific cases, itwould seem almost a necessity to lay the groundwork for the cases at1. Professor of Political Science and Head, Department of Political Science,Lehigh University.2. TRESOLINI, JUSTICE AND THE SUPREME COURT 5 (1963).3. 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 1861).4. TREsoLINI, op. cit. supra note 2, at 16.5. 98 U.S. 145 (1878).Washington University Open ScholarshipWASHINGTON UNIVERSITY LAW QUARTERLYleast in part in the accompanying biography. The author unfortu-nately does not do this consistently. He does better in this respectin his study of Taney, where he goes much further in suggesting whatmight have prompted Taney's action in the Merryman case. The sameis true in his portrayal of the first Justice Harlan and his famousdissent in Plessy v. Ferguson.0The other judges and cases included in the volume are Holmes andthe Schwimmer case,7 Hughes and the Macintosh decision,8 Black andChambers v. Florida,9 Murphy and the Korematsu decision,10 andRutledge and In Re Yamashita.11 It is to be regretted that JusticeBlack is the only living Supreme Court justice included. Certainlyeither Justice Douglas or Chief Justice Warren merit separate studiesin a book on civil liberties, and Brown v. Board of Educationl2 wouldhave been a fitting companion-piece to Plessy.13 And what, for ex-ample, about Justice Tom Clark, generally conceded by many to be aconservative on civil liberties matters when he joined the Court, butwho is now writing many .of the stronger civil liberties decisions forthe Court? In terms of present relevance, he might have been a betterchoice for inclusion than, let us say, Chief Justice Waite.The author attempts, in several of the studies, to "follow through"by showing what occurs after the decision of the case he has beendiscussing. In view of the scarcity of materials on the aftermath ofSupreme Court rulings, this is to be applauded. The pairing of theSchwimmer and Macintosh cases serves this purpose, and the study ofthe latter case concludes with an exposition of the Court's Girouardruling,," in which both Schwimmer and Macintosh were overruled.Professor Tresolini also follows General Yamashita from the SupremeCourt's decision to his death, describing fully the actions of GeneralMacArthur and his staff in pressing for Yamashita's death and theirextreme closed-mindedness concerning the civil liberties issues raisedby the captured enemy's trial. The discussion of MacArthur's role inthis case is one of the high points of the volume, and neither he norhis assistants come off well in the analysis.In general, the volume lacks organization. One does expect thatany collection of separately prepared studies such as this will be at6. 163 U.S. 537 (1896).7. United States v. Schwimmer, 279 U.S. 644 (1929).8. United States v. Macintosh, 283 U.S. 605 (1931).9. 309 U.S. 227 (1946).10. Korematsu v. United States, 323 U.S. 214, 233 (1944) (dissenting opinion).11. 327 U.S. 1, 41 (1946) (dissenting opinion).12. 347 U.S. 483 (1954).13. The author does, however, conclude his study of Harlan with a short treat-ment of both Warren and the Brown case.14. Girouard v. United States, 328 U.S. 61, 69 (1946).https://openscholarship.wustl.edu/law_lawreview/vol1963/iss4/5BOOK REVIEWSleast somewhat uneven in quality; however, additional effort couldhave gone into structuring the individual studies and the volume as awhole. More attention should have been paid to explaining the criteriafor inclusion of particular judges and cases and excluding others. Thestudies are interesting, but one wonders whether there is sufficientjustification for some of them appearing in such a volume.Professor Tresolini writes well, although he has a tendency to beoverenthusiastic. His analytical power is great, and is shown at itsbest in his discussion of Holmes' social Darwinism and of the differ-ence in orientation between Holmes and Brandeis toward life andtheir judicial roles. However, he presents each judge in a light sofavorable as to leave a question in the mind of the reader as to theauthor's analytical objectivity. Certainly the public in general andhigh school students in particular have already been subjected toenough subjective material about the Court without being offeredmore. It therefore behooves those with as much experience in the fieldof constitutional law as Professor Tresolini to be particularly carefulin this regard.In addition to the individual studies, the author includes extensivebibliographical notes which will give the student beginning to explorethe area of constitutional law a good grasp of the materials withwhich he can work. Also included is some material from the author'stextbook, AMERICAN CONSTITUTIONAL LAW, 5 on "How theSupreme Court Decides Cases." This selection, the list of justices ofthe Supreme Court with the years in which they served, and sectionsof the United States Constitution relating to civil liberties, are allprovided as useful appendices. STEPHEN L. WASBY*15. TRzsOLI, AMEicAN CONSTITUTIONAL LAw (1959).* Assistant Professor, Political Science, Southeast Missouri State College.Washington University Open Scholarship

Review of “Justice and the Supreme Court,” By Rocco J. Tresolini

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Review of “Justice and the Supreme Court,” By Rocco J. Tresolini

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