Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Law is just politics, written down. The three or so people who previously doubted that stark truth, well, they caught the last train for the coast on Dec. 12, 2000, the day the U.S. Supreme Court announced its decision in Bush v. Gore. Since the court’s coronation of George Bush II, the federal judiciary has continued the rightward shift that began, roughly speaking, with the 1969 retirement of Chief Justice Earl Warren. The recent replacement of Sandra Day O’Connor with Samuel A. Alito Jr. has handed conservatives the reliable 5-4 Supreme Court majority that they have long sought. Barring an untimely death or serious illness, the right should continue to prevail for the next decade or two on most constitutional issues. Understandably, this displeases people on the left. One of those people is Martin Garbus, a prominent New York attorney who is so displeased that he has written a book, The Next 25 Years: The new Supreme Court and what it means for Americans. As its title suggests, Garbus’ book predicts, in great and gory detail, just how bleak the constitutional landscape will become during the coming quarter-century. Garbus supports his dire predictions with discussions of important cases from (mostly) the last 25 years, demonstrating the rightward shift under chief justices Warren E. Burger and William H. Rehnquist. He then examines the first term of the Roberts Court, predicting � accurately � that the shift to the right has not only continued, but accelerated, rather like global warming. Garbus’ book is, according to American Civil Liberties Union President Nadine Strossen, “a clarion cry.” No doubt. The thing is, clarion cries must be issued in a timely fashion. A book like this might have made a significant difference prior to the 2000 election, but it is unclear what Garbus hopes to accomplish now. Liberal court-watchers already know where each current justice stands on most issues, and they certainly know that they must elect a Democratic president in 2008 (and 2012, and 2016 . . . ) if they can ever hope to counter the judicial appointments of Ronald Reagan and the Bushes. They are fully aware that they need to maintain control of the Senate and that they need to fight as hard as the Republicans do during future confirmation hearings. Thus, despite its title, Garbus’ book is strangely untimely. He seems to have missed his deadline by about eight years. Garbus’ supporters might well respond, “better late than never.” Perhaps. A well-written book can be influential, no matter when it is published. This book, however, is not well written. While it amply demonstrates Garbus’ impressive knowledge of constitutional history, its prose is discursive, almost stream-of-consciousness. As Garbus skips from one topic to another and from one case to the next, the reader’s eyes tend to glaze over. One can almost imagine him pacing his office, Dictaphone in hand, venting his righteous anger in disorganized, digitized bytes. That’s fine for a first draft, but arguments require some organization, and books require some editing. They also require focus. It is unclear just whom Garbus is trying to address: lawyers or a lay audience. If he wants to rally his fellow attorneys to his cause, he does not need to go on for more than 200 pages; his arguments could have been set out in half as much space, which would have given him plenty of room to document more of his factual claims (another weakness). If, on the other hand, Garbus wants to educate the general public, he needs to lay a foundation of basic explanation � of what the Constitution says, how the Supreme Court works, who the justices are and the significance of the various constitutional issues he raises. In either event, Garbus needs to provide a much better roadmap of his analysis, including detailed headings and subheadings, instead of merely dividing his book into six broad sections � sections into which his prose does not always comfortably fit. He also needs to watch the typos: To mention one particularly significant transgression, Garbus states, on page 111, that “[b]oth Roberts and Alito find [gerrymandering] cases such as these ‘non-justifiable.’ ” Roberts and Alito’s opinions may, indeed, be unjustifiable, but I believe that Garbus meant to write “ non-justiciable.” All of this is unfortunate. Garbus’ “clarion cry” addresses some very important issues. It warrants better presentation. Stewart Harris is an associate professor of law at the Appalachian School of Law, where he teaches civil procedure and constitutional law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.