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A data-rich examination of the US Supreme Court's unprecedented detachment from the democratic processes that buttress its legitimacy.

Today’s Supreme Court is unlike any other in American history. This is not just because of its jurisprudence but also because the current Court has a tenuous relationship with the democratic processes that help establish its authority. Historically, this “democracy gap” was not nearly as severe as it is today. Simply put, past Supreme Courts were constructed in a fashion far more in line with the promise of democracy—that the people decide and the majority rules.

Drawing on historical and contemporary data alongside a deep knowledge of court battles during presidencies ranging from FDR to Donald Trump, Kevin J. McMahon charts the developments that brought us here. McMahon offers insight into the altered politics of nominating and confirming justices, the shifting pool of Supreme Court hopefuls, and the increased salience of the Court in elections. A Supreme Court Unlike Any Other is an eye-opening account of today’s Court within the context of US history and the broader structure of contemporary politics.

This is an auto-narrated audiobook version of this book.

A data-rich examination of the US Supreme Court's unprecedented detachment from the democratic processes that buttress its legitimacy.

Today’s Supreme Court is unlike any other in American history. This is not just because of its jurisprudence but also because the current Court has a tenuous relationship with the democratic processes that help establish its authority. Historically, this “democracy gap” was not nearly as severe as it is today. Simply put, past Supreme Courts were constructed in a fashion far more in line with the promise of democracy—that the people decide and the majority rules.

Drawing on historical and contemporary data alongside a deep knowledge of court battles during presidencies ranging from FDR to Donald Trump, Kevin J. McMahon charts the developments that brought us here. McMahon offers insight into the altered politics of nominating and confirming justices, the shifting pool of Supreme Court hopefuls, and the increased salience of the Court in elections. A Supreme Court Unlike Any Other is an eye-opening account of today’s Court within the context of US history and the broader structure of contemporary politics.

Administering Justice examines the leadership role of chief justices in the American states, including how those duties require chief justices to be part of the broader state political environment. Vining and Wilhelm focus extensively on the power of chief justices as public spokespersons, legislative liaisons, and reform leaders. In contrast to much existing research on chief justices in the states, this study weighs their extrajudicial responsibilities rather than intracourt leadership. By assessing the content of State of the Judiciary remarks delivered over a period of sixty years, Vining and Wilhelm are able to analyze the reform agendas advanced by chief justices and determine what factors influence the likelihood of success. These analyses confirm that chief justices engage with state politics in meaningful ways and that reactions to their proposals are influenced by ideological congruence with other political elites and the scope of their requests. Administering Justice also examines the chief justice position as an institution, provides a collective profile of its occupants, and surveys growing diversity among court leaders.

Over the past two decades, corporations and other commercial entities have used strategic litigation to win more expansive First Amendment protections for commercial speech—from the regulation of advertising to the role corporate interests play in the political process, most recently debated in the Supreme Court case of Citizens United v. Federal Election Commission. Tamara R. Piety, a nationally known critic of commercial and corporate speech, argues that such an expansion of First Amendment speech rights imperils public health, safety, and welfare; the reliability of commercial and consumer information; the stability of financial markets; and the global environment. 

Beginning with an evaluation of commonly evoked philosophical justifications for freedom of expression, Piety determines that, while these are appropriate for the protection of an individual’s rights, they should not be applied too literally to commercial expression because the corporate person is not the moral equivalent of the human person. She then gathers evidence from public relations and marketing, behavioral economics, psychology, and cognitive studies to show how overly permissive extensions of First Amendment protections to commercial expression limit governmental power to address some of the major social, economic, and environmental challenges of our time.

“The timeliness of the topic and the provision of original positions are sure to make the book a valuable contribution that should draw much attention.”
—Kevin W. Saunders, Michigan State University

DISTINGUISHED PUBLICATION AWARD FOR THE NATIONAL COMMUNICATION ASSOCIATION'S COMMUNICATION AND LAW DIVISION

The First Amendment: protected by law, threatened by fear in the Roberts Supreme Court.

In Fear and the First Amendment: Controversial Cases of the Roberts Court, Kevin A. Johnson and Craig R. Smith offer a deeply considered examination of the ways fear figures in First Amendment questions. Bringing together literature on theories of fear in rhetorical and philosophical traditions, Johnson and Smith focus on the rulings from the Roberts Court, which form a pivotal era of dramatic precedents. Each chapter analyzes one or more First Amendment cases and a variety of related fears—whether evidentiary or not—that pertain to a given case.

These cases include Morse v. Frederick, which takes up the competing fears of school administrators’ loss of authority and students’ loss of free speech rights. The authors touch on corporate funding of elections in Citizens United v. Federal Elections Commission, from the fear of corporate influence on electoral politics to corporate fears of alienating their consumers by backing political candidates. They explore religious freedom and fears of homosexuality in Christian Legal Society v. Martinez. Similarly, in Snyder v. Phelps, the authors delve further into fears of God, death, emotional distress, failing as a parent, and losing one’s reputation. Next, they investigate parents’ anxieties about violence in video games in Brown v. Entertainment Merchants Association. Finally, Johnson and Smith examine the role of fear in indecent, obscene, and graphic communication in three cases: FCC v. Fox Television Stations, Ashcroft v. American Civil Liberties Union, and United States v. Stevens.

Together these cases reveal fear to be an endemic factor in the rhetoric of First Amendment cases. This fascinating and original work will appeal to current legal practitioners and students of law, rhetoric, philosophy, and the First Amendment.
 

A Southern voice on a national bench—McKinley’s legacy in antebellum law.

John McKinley and the Antebellum Supreme Court offers the first comprehensive biography of Justice John McKinley (1780–1852), a largely forgotten figure in American legal history who played a pivotal role during a formative period of the U.S. Supreme Court. Steven P. Brown rescues McKinley from historical obscurity, presenting a compelling portrait of a man deeply embedded in the political, legal, and financial life of the early 19th-century South.

Born in Kentucky and later settling in northern Alabama, McKinley served in both the U.S. Senate and House of Representatives before being appointed to the Supreme Court by President Martin Van Buren in 1837. His tenure on the bench coincided with the creation of the Ninth Circuit, a vast and challenging judicial territory encompassing Alabama, Arkansas, Louisiana, and Mississippi. Brown details McKinley’s arduous circuit-riding duties, which required extensive travel and exposed him to the legal complexities of a rapidly expanding frontier.

More than a biography, the book provides a penetrating analysis of antebellum legal culture, Alabama state politics, and the internal workings of the Supreme Court during a time of national transformation. Brown challenges the prevailing view of McKinley as a mediocre jurist, arguing instead that his contributions—particularly his dissents defending states’ rights—deserve renewed scholarly attention. With rich historical context and meticulous research, John McKinley and the Antebellum Supreme Court sheds light on the burdens of justice in a divided nation and the legacy of a justice whose career mirrored the tensions of his time.
 

A timely and lively summary and analysis of the Supreme Court’s justifications for overruling nearly 300 prior rulings in its history

An audacious US Supreme Court is overturning a number of long-standing precedents, and Overturned offers a lively account of the court’s history of overturning prior cases and examples and analyses of 300 cases overruled in its history.

The immense controversy surrounding the case of Dobbs v. Jackson Women’s Health Organization in 2022, which overruled Roe v. Wade and erased the constitutional right to abortion in the United States, has focused public attention on how and why the Supreme Court knocks down long-established precedents.

In his vivid and accessible style, scholar Clarke Rountree recounts the rhetorical pirouettes and linguistic acrobatics the court has deployed to explain its reversal of Dobbs and numerous other landmark decisions. He reviews strategies the court uses to undermine a previous court’s standing without undermining its own. He analyzes overrulings across time, by type (constitutional cases versus statutory and common law cases), by the ages of the overturned precedents, with changes in the court’s membership, and through other variables.

Rountree gives engrossing accounts of pivotal overrulings in the past, such as when Lincoln’s Treasury Secretary Salmon Chase used the Legal Tender Act in 1862 to raise money for the Civil War then ruled the same law unconstitutional in 1870 when he served as chief justice. Rountree retells Thomas Edison’s attempt to monopolize the burgeoning film industry, which was stopped only when the Supreme Court overturned an earlier patent-rights case in 1917. Finally, Rountree applies his myriad insights to the politically fraught Dobbs case.

Overturned makes a valuable contribution to law, rhetoric, politics, and history, and readers interested in the role and function of America’s highest court will find Rountree’s account fast-paced, lively, and engaging.

Congress and the president are not the only branches that deal with fiscal issues in times of war. In this innovative book, Nancy Staudt focuses on the role of federal courts in fiscal matters during warfare and high-cost national defense emergencies. There is, she argues, a judicial power of the purse that becomes evident upon examining the budgetary effects of judicial decision making. The book provides substantial evidence that judges are willing—maybe even eager—to redirect private monies into government hands when the country is in peril, but when the judges receive convincing cues that ongoing wartime activities undermine the nation’s interests, they are more likely to withhold funds from the government by deciding cases in favor of private individuals and entities who show up in court.

In stark contrast with conventional legal, political, and institutional thought that privileges factors associated with individual preferences, The Judicial Power of the Purse sheds light on environmental factors in judicial decision making and will be an excellent read for students of judicial behavior in political science and law.