Taking Back The Courts

Taking Back the Courts A Flawed Justice System Exposed by One of America's Most Controversial and Successful Trial Lawyers, Norm Pattis, with a Forward and Preface by two other legal icons: F. Lee Bailey and Gerry Spence. In Taking Back the Courts Norm Pattis delivers a searing and keenly intelligent critique of America's justice system; an insider's account that takes no prisoners while offering many insightful and necessary remedies. Pattis blows the whistle on many of the system's maladies including: deceptive profiteering experts for hire, police-extorted confessions, morally bereft backroom plea bargaining, the demise of the jury, the sexophrenia that has addled the brains of legislators and judges packing our prisons with people far from evil and many more. Trial attorney Pattis is a provocative social philosopher writing with a pen warmed in Hell, but his case against the courts is unwaveringly wise, sober, principled, balanced and compulsively readable.

How the Supreme Court's move to the right has distorted both logic and the Constitution What Supreme Court justices do is far more than just "calling balls and strikes." The Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings. Social, moral, and yes, political ideas have always played into the justices' impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved, from the liberalism of the New Deal and the Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism--a move that would restore to the other branches of government a role in deciding constitutional questions.

"This book describes and explains the failure of the federal courts of the United States to act and to provide remedies to individuals whose constitutional rights have been violated by illegal state coercion and violence. This remedial vacuum must be understood in light of the original design and historical development of the federal courts. At its conception, the federal judiciary was assumed to be independent thanks to an apolitical appointment process, a limited supply of adequately trained lawyers (which would prevent cherry-picking), and the constraining effect of laws and constitutional provision. Each of these checks quickly failed. As a result, the early federal judicial system was highly dependent on Congress. Not until the last quarter of the nineteenth century did a robust federal judiciary start to emerge, and not until the first quarter of the twentieth century did it take anything like its present form. The book then charts how the pressure from Congress and the White House has continued to shape courts behaviour-first eliciting a mid-twentieth-century explosion in individual remedies, and then driving a five-decade long collapse. Judges themselves have not avidly resisted this decline, in part because of ideological reasons and in part out of institutional worries about a ballooning docket. Today, as a result of these trends, the courts are stingy with individual remedies, but aggressively enforce the so-called "structural" constitution of the separation of powers and federalism. This cocktail has highly regressive effects, and is in urgent need of reform"--

Arthur Ray's extensive knowledge in the history of the fur trade and Native economic history brought him into the courts as an expert witness in the mid-1980s. For over twenty-five years he has been a part of landmark litigation concerning treaty rights, Aboriginal title, and Métis rights. In Telling It to the Judge, Ray recalls lengthy courtroom battles over lines of evidence, historical interpretation, and philosophies of history, reflecting on the problems inherent in teaching history in the adversarial courtroom setting. Told with charm and based on extensive experience, Telling It to the Judge is a unique narrative of courtroom strategy in the effort to obtain constitutional recognition of Aboriginal and treaty rights.

Over the last thirty years, the Federalist Society for Law and Public Policy Studies has grown from a small group of disaffected conservative law students into an organization with extraordinary influence over American law and politics. Although the organization is unknown to the average citizen, this group of intellectuals has managed to monopolize the selection of federal judges, take over the Department of Justice, and control legal policy in the White House. Today the Society claims that 45,000 conservative lawyers and law students are involved in its activities. Four Supreme Court Justices--Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito--are current or former members. Every single federal judge appointed in the two Bush presidencies was either a Society member or approved by members. During the Bush years, young Federalist Society lawyers dominated the legal staffs of the Justice Department and other important government agencies. The Society has lawyer chapters in every major city in the United States and student chapters in every accredited law school. Its membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, who differ with each other on significant issues, but who cooperate in advancing a broad conservative agenda. How did this happen? How did this group of conservatives succeed in moving their theories into the mainstream of legal thought? What is the range of positions of those associated with the Federalist Society in areas of legal and political controversy? The authors survey these stances in separate chapters on • regulation of business and private property • race and gender discrimination and affirmative action • personal sexual autonomy, including abortion and gay rights • American exceptionalism and international law

Right Wing Justice raises the alarm about the creeping conservative campaign to "pack" America's courts with judges more identified with their ideological affiliation than their skill or regard for the Constitution. The consequence is that the rule of law is taking a terrific beating from the Supreme Court. Who can forget the debacle of Election 2000? But the consequences of the campaign go far deeper than that, impinging on the daily lives of ordinary Americans who are at the receiving end of attempts to overturn or erode Supreme Court rulings on abortion, school prayer, civil rights, criminal justice, and economic regulation. As the author shows, the problem does not end at the Supreme Court—it filters down to the lowers courts and circuits. Right Wing Justice gives an alarming account of how this has come to pass over the last two decades, how conservative activists hatched this strategy in the 1960s only to see it really come of age during the Reagan revolution and the successive Republican administrations. Combining a scholar's sense of history with the immediacy of eyewitness testimony, Right Wing Justice will come not only as a sobering reading to many concerned Americans—but also as a call to wake-up.

While the majority of the landmark laws and legal precedents expanding access to justice in the United States remain intact, less than 2 percent of civil cases are decided by a trial today. What explains this phenomenon, and why it is so difficult to get one's day in court? This book examines the sustained efforts of political and legal actors to scale back access to the courts in the decades since it was expanded, largely in the service of the rights revolution of the 1950s and 60s.

Here a leading scholar in constitutional law, Mark Tushnet, challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. Many people, particularly liberals, have "warm and fuzzy" feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as "We the People of the United States." The Constitution belongs to us collectively, as we act in political dialogue with each other--whether in the street, in the voting booth, or in the legislature as representatives of others. Tushnet urges that we create a "populist" constitutional law in which judicial declarations deserve no special consideration. But he warns that in so doing we must pursue reasonable interpretations of the "thin Constitution"--the fundamental American principles embodied in the Declaration of Independence and the Preamble to the Constitution. A populist Constitution, he maintains, will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy's opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out that in this context and in many others, errors occurred because of the existence of judicial review: neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. Tushnet's clarion call for a new kind of constitutional law will be essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.