"It Is So Ordered"

[stoutfellow]

It Is So Ordered, by Warren E. Burger, is... well, the cover blurb is a reasonable description:

The former Chief Justice of the United States recounts fourteen of the cases and historical events that shaped the Constitution.

It is, Burger says, "a story and not a formal history"; in other words, it is a popular account of some of the major cases. Further comments are under the cut.

Let's begin with the particular cases Burger chooses to discuss. (There are only twelve of them; additional chapters deal with the triangular struggle between Jefferson, John Marshall, and Aaron Burr and with the impeachment trial of Samuel Chase.) They are:

• Bracken v. Visitors (1790), concerning the independence of the trustees of William & Mary from the state legislature


• Ware v. Hylton (1796), concerning the validity of state laws contrary to a Federal treaty


• Marbury v. Madison (1803)


• United States v. Aaron Burr (1807), Burr's treason trial


• Dartmouth College v. Woodward (1819), concerning the interpretation of the Contract Clause of the Constitution


• M'Culloch v. Maryland (1819)


• Gibbons v. Ogden (1824), concerning the application of the Commerce Clause to inland waterways


• Dred Scott v. Sandford (1857)


• Plessy v. Ferguson (1896)


• Near v. Minnesota (1931), on "prior restraint" laws enacted by individual states


• Home Building & Loan v. Blaisdell (1934), on state intervention in private contracts


• Youngstown v. Sawyer (1952), the steel seizure case

This is, for the most part, a reasonable selection of important cases, but there are some striking features. Burger does not mention the Civil War cases on the right of habeas corpus (Ex parte Milligan and Ex parte Merryman), and he ignores the Slaughterhouse cases and Lochner v. New York, interfering with efforts to promote workers' rights. More significantly, he does not address any case later than Youngstown. It is natural that he would be reticent about cases which came before the Supreme Court during his tenure, but he also omits the groundbreaking cases of the Warren Court. Brown v. Board of Education is briefly mentioned in the chapter on Plessy v. Ferguson, but such critical cases as Griswold v. Connecticut (the right to privacy), Loving v. Virginia (interracial marriage), Gideon v. Wainwright (the right to counsel), and Miranda v. Arizona (other Fourth Amendment rights) receive no comment at all.

Overall, I found the book somewhat disappointing; the discussions are lightweight, even breezy, and Burger's personal biases are clearly visible, especially in the chapter on Home Building & Loan. His treatment of Youngstown does not even mention Justice Jackson's typology of executive power, which I had always heard was the most important outcome of the case. Perhaps I simply wasn't the intended audience; after all, I have a copy of The Oxford Guide to United States Supreme Court Decisions on my shelves. Still, I had hoped for more insightful commentary from Chief Justice Burger.