Cover image for Courting disaster : the Supreme Court and the unmaking of American law
Courting disaster : the Supreme Court and the unmaking of American law
Garbus, Martin, 1934-
Personal Author:
First edition.
Publication Information:
New York : Times Books, [2002]

Physical Description:
322 pages ; 25 cm
Electronic Access:
Publisher description
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KF8742 .G37 2002 Adult Non-Fiction Non-Fiction Area
KF8742 .G37 2002 Adult Non-Fiction Open Shelf

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A provocative look at the naked political agenda of today's Supreme Court, from one of America's foremost jurists.

In the fall of 2000, when the United States Supreme Court handed down a decision that effectively decided a Presidential election, the Court's role in political life suddenly was thrust onto center stage. But, as legendary attorney and activist Martin Garbus argues, the Court has been a hotbed of politics for years, and it's time we took off our blinders and stopped treating the justices as the protectors of objective truth.

For more than a generation, the Supreme Court has been quietly but aggressively rolling back legislation that has been fundamental to our justice system and economy since the days of Franklin Roosevelt. Although they remain on the books, laws concerning everything from abortion to the rights of suspects have been all but eviscerated. Most of the legal principles involved are subtle and technical, and often are lost on the general public. But in Courting Disaster Garbus brilliantly explicates the ways in which seemingly small decisions by the Court can preciptate radical change in American law, and then in American society.

Ultimately, Garbus issues a passionate, well-argued wake-up call to liberal forces, urging the restoration of the Court's bipartisanship and objectivity.

Author Notes

Martin Garbus is a trail lawyer. He lives in New York City.

Reviews 3

Booklist Review

Garbus dispels the myth that the U.S. Supreme Court and its composition are apolitical and places the High Court within the context of partisan political strategizing. From the strong political shift to the Right during the Reagan administration, when the plan to stack the federal judiciary was initiated, through the Supreme Court ruling in 2000 that declared George Bush president, trumping the Florida Supreme Court, the American public has seen a level of political activism that most conservative judiciaries have rhetorically opposed for years. Garbus objectively addresses this turnaround, reviewing the irony of the mid-twentieth century, when the Left sought refuge from state's rights by seeking out the U.S. Supreme Court. Garbus concludes that the current court is primarily result-oriented, with justices who are relatively comfortable with exerting conservative influence for the foreseeable future. As the Supreme Court takes fewer cases, circuit court decisions gain in significance, heightening the importance of the conservative strategy to secure appointees at the circuit level. Garbus advocates a counterforce to function in the political and public legal arenas to ensure a more evenhanded judiciary. --Vernon Ford

Publisher's Weekly Review

Garbus, a leading First Amendment lawyer and TV commentator, believes the U.S. Supreme Court, rather than protecting American democracy, poses a grave threat to it. He argues that the conservative bloc of the Court, driven by the ideological vision of William Rehnquist and intellectual vigor of Antonin Scalia, is "seizing power" and seeking to eviscerate individual freedoms most Americans assume to be their birthright. He fears even more that conservative Bush appointees would give the Rehnquist bloc the necessary votes to rewrite the Constitution and severely limit the right to abortion, significant First Amendment rights and protections against unreasonable searches and seizures. Garbus doesn't dumb down his subject; he discusses Supreme Court cases and the underlying judicial philosophy on the level of a law school class. The analysis of the Court's decisions on women's rights, race, affirmative action and religion will be familiar to sophisticated readers, but the discussion of the constitutional development of economic regulation will be new to most. Still, despite the density of the material, Garbus's writing is clear and comprehensible. Sympathetic that is, liberal readers will find his message chilling and will welcome his call for citizens to use their political influence to convince moderate senators, who will provide the pivotal votes on the next Supreme Court nominees, to insist on the appointment of more moderate justices. (Sept. 17) Forecast: Garbus's reputation should earn him reviews; his audience will consist primarily of the already converted. (c) Copyright PWxyz, LLC. All rights reserved

Library Journal Review

Like Noonan (see accompanying review), Garbus sees the Rehnquist Court as undermining the ability of both the Federal judiciary and especially Congress to play a prominent role in the progressive evolution of the modern state. A trial attorney who has appeared frequently as a legal commentator on NBC and CNBC, Garbus decries the Court's recent tendency to overturn congressional legislation by declaring unconstitutional the provisions of various bipartisan acts across a wide range of social, economic, and political spectra. Carefully explicating the conflicting Court perceptions of federalism, he paints a vivid picture of internal conflict among the justices. For each major point of constitutional contention, he considers how and where the case originally arose, issues at trial, appellate review, arguments before the Court, the nine justices and where they stand, the majority opinion, and the minority dissent. The author also properly assesses the impact of the dissents, should these someday become the majority viewpoint of the narrowly divided Court. In the current context, the ability of the federal government to exercise its Article I powers is rigidly constrained. As Garbus shows, attempts by Congress to assert its power over gun control, as in the Brady Bill, or to help rape victims, as in the Women Against Violence Act, will be, and have been, struck down as unconstitutional when legislated under the pretext of interstate commerce. Garbus spends more time analyzing case law, while Noonan emphasizes the Court's resolution of constitutional disputes, so the two books complement each other nicely. Highly recommended.-Philip Y. Blue, New York State Supreme Court Criminal Branch Law Lib., New York (c) Copyright 2010. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Table of Contents

1. The Unmaking of American Lawp. 1
2. The Right's Twenty-Year Attack on the Federal Judiciaryp. 14
3. Crime and Punishmentp. 46
4. Morality and Values: Sex, Abortion, and Women's Rightsp. 80
5. Federalism and States' Rightsp. 121
6. Capitalism and the Free Market: Rolling Back the Clock to the 1990sp. 161
7. Race, Gender, and Ethnicityp. 188
8. Affirmative Action: Putting the Nail in the Coffinp. 225
9. Religionp. 251
10. Conclusion: Courting Disasterp. 283
Notesp. 293
Bibliographyp. 301
Acknowledgmentsp. 307
Indexp. 309