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The Supreme Court

Law and History

About.com Rating four out of Five

By Austin Cline, About.com

The Supreme Court, Rehnquist

The Supreme Court, by William H. Rehnquist

Rehnquist's history of the Supreme Court is easy, engaging and informative - well worth reading, but only so long as you are aware of his own biases. Rehnquist is not an objective or impartial legal historian. Rehnquist is a sitting and practicing judge with vested interest in furthering his own particular legal and judicial philosophy. He is not simply involved with explaining history - he is a partisan actor in making history.

I don't know if Rehnquist has ever publicly accepted the label of "legal positivist," but it seems that if legal positivism is not a completely accurate label for how he goes about things, he shares an awful lot with that particular philosophy. As a judge, Rehnquist does not believe in the relevance of moral principles which might explain or justify laws - for him, the laws are self-justifying and as such, meaning nothing more and nothing less than exactly what they say and what the authors intended them to achieve.

Rehnquist's judicial decisions can be predicted with between 85% and 100% accuracy by relying upon just three basic principles: in a conflict between individuals and the government, defer to the government; in a conflict between the federal government and any lower (like a state) government, defer to the lower government; interpret a law no further than the authors intended or that a literal reading permits. These are not merely "rules of thumb" which happen to predict his decisions - these are, rather, his principles of legal philosophy which he uses when explaining and justifying his decisions.

The Supreme Court, Rehnquist
The Supreme Court, by William H. Rehnquist

These same biases can be found in this book as well, but he is to be commended for the fact that he doesn't make them too obvious or hit the reader over the head with them, expect perhaps in the final chapter (which is more editorial in nature than historical). Nevertheless, his biases should be kept in mind when reading his book, and it would be a good idea not to read it in isolation - one or two other works on the Supreme Court would help provide balance.

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