More than any other group of individuals, “The Brethren”—the men and women of the Supreme Court—exert an influence disproportionate to their number on the lives of ordinary citizens. This is as true of the Indian Supreme Court as it is of its older cousin, the Supreme Court of the United States. From personal freedoms and liberties to complex issues of education, taxation, the environment and even religion, the pronouncements of these courts alter the patterns and rhythms of daily life. Sometimes these alterations are swift and have a jagged edge; others are subtler. They are always pervasive. In matters of constitutional interpretation and in propagating their perceptions of liberty, fundamental rights and protection of freedoms, the Supreme Courts have been frequently accused of being too ‘activist’. These complaints invariably come from those who seek to curtail those liberties, rights and freedoms; but these cries of outrage have seldom checked the Supreme Court. Over the last 100 years or more in America, and, with the exception of one dark period, 50 years in India, the Supreme Courts of the United States and India have sided with the individual and the citizen in areas critical to the survival of a democracy.

Dworkin’s anguish in “The Supreme Court Phalanx” stems from his belief that the US Supreme Court is, today, subverting those very ideals, liberties, freedoms and rights that it has always protected and secured to the citizen. If only because of the way our own Supreme Court works, that kind of ideological sand-shifting is unlikely in India: with two– and three–Judge benches sitting simultaneously, as opposed to more sedate hearings by the entire court, it is infinitely more difficult for the court as a whole to change course. In contrast, the US Supreme Court is a more nimble ship; a single dominant individual, especially as Chief Justice, has both the time and the opportunity to plot the course he desires. On the other hand, to turn the behemoth of our Supreme Court in a particular direction is arguably beyond any one individual. As the events of the Emergency showed, it requires a hugely powerful external force to make that kind of course-alteration. Internal dissensions and protests do not make the vessel change tack, as we have very recently seen in the exchange between two benches regarding the role of the Supreme Court in public interest litigations.

But maritime metaphors when speaking of the present Supreme Court are very like the Sirens of Greek mythology, both seductive and dangerous. The shoals of judicial history are altogether more navigable, and The Pursuit of Justice is a wonderful sextant to American jurisprudence. To even begin to understand, say, Dworkin’s concerns, requires a historiographical familiarity with the many decisions that “shaped America”. These decisions and opinions are not always within reach; The Pursuit of Justice presents these in an accomplished, lively and eminently accessible manner.

The book is a survey of the thirty or so US Supreme Court decisions widely acknowledged to be the most influential. They cover issues such as judicial review (Marbury v Madison), free speech (Abrams v United States; Tinker v Des Moines, etc), desegregation (Brown v Board of Education), the freedom of the press (New York Times Co v Sullivan), the right to privacy (Griswold v Connecticut), the limits on police power during arrests (Miranda v Arizona), abortion (Roe v Wade), affirmative action (Regents of the University of California v Bakke), and come right up to judicial intervention in the political process (Bush v Gore) — the last also the subject matter of Alan Dershowitz’s scalding Supreme Injustice.

Uniquely, The Pursuit of Justice does not set out the full opinions of the Supreme Court. Instead, it introduces the background to the cases, summarizes the decision, and details the reactions to the opinion in question. The text is accompanied by many illustrations, photographs, lithographs, letters and comments that are otherwise not usually found in a book of cases. The chapter on Abrams v United States discusses the context of the issue before the court, analyses the opinion and also includes, separately, the dissent by Oliver Wendell Holmes, widely considered to be the finest defence of free speech by an American, ever. That portion of the dissent is preceded by a superbly concise potted biography of Holmes the man. Even more interesting, perhaps, is the reconstruction, based on notes made in 1965 by Justices William Douglas and William Brennan, of the conversation when the judges of the Supreme Court met in conference over Griswold. Here we get to read, as if in dialogue, what Chief Justice Earl Warren said; and the views of Justices Hugo Black, Tom Clark, Byron White, Potter Stewart, John Marshall Harlan II, Douglas and Brennan.

Television and the movies have made everyone the world over familiar with the recitation of Miranda warnings. These are the enduring legacy of one man, Chief Justice Earl Warren, in the 5–4 Miranda decision and, amazingly, this book has (page 161) a reproduction of Warren’s handwritten notes as he began to formulate his thinking. Another delectable photograph is that of the infamous ‘butterfly ballot’ of the Bush-Gore Florida election contest. That ballot paper’s format is so utterly idiotic that it almost seems designed for dispute.

A book is often only as good as what precedes and succeeds its principal content. The introduction, “The Supreme Court as a Mirror of America” explains the central role that the US Supreme Court has played in the development of that country. The epilogue, “We Are All Slaves of the Law”, is even better, and portions of it are worth extracting:

“The pivotal Supreme Court cases described in this book remind us that our constitutional system places change and continuity in constant tension. And that is just what the framers of the Constitution intended. They wanted the Constitution to be difficult to change because its predictability is essential to its legitimacy …”

“The Court has changed its views on critical matters, as the cases in this volume so often remind us. And when the Court has changed its mind, it has produced some of the most memorable moments in the history of the nation. We might prefer a Supreme Court founded on the idea of original intent, that is, a Court that constantly refers to the wishes of the framers of the Constitution. But its most important decisions reveal that while the justices have kept an eye to precedent and the work of the Philadelphia convention, they have also been willing to gaze decisively into the future when confronted with new realities …”

“The justices who interpret [the Constitution’s] words are its high priests; their opinions shape the contours of American life.

“There is no doubt that the Supreme Court’s principal role has been to remind us that the law generally and constitutional law in particular cannot be a game of roulette.”

“The Roman philosopher Cicero summed matters up nicely with the observation that “We are all slaves of the law that we may enjoy freedom.” The framers of the Constitution, schooled as they were in the Classics, knew and appreciated this basic insight. One of the most important reasons they created the Court—and one of the most important reasons it has played such a critical role in our history—is that it has maintained the concept of the rule of law as an essential, if sometimes not fully realized, element of our liberty.”

Kermit Hall is at the University at Albany. John J. Patrick is at Indiana University (Emeritus).

Book Review by Gautam Patel, whose views are of course his own (who else would want them?) and not those of the Association.