Taking Back the Constitution: Activist Judges and the Next Age of American Law

by Mark V. Tushnet

How the Supreme Court’s move to the right has distorted both logic and the Constitution

The Supreme Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings, and social, moral, and yes, political ideas have always played into Supreme Court 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 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 the other branches of government’s role in deciding constitutional questions.

Genres: Law

320 pages, Hardcover

Published May 19, 2020

About the author

A specialist in constitutional law and theory, including comparative constitutional law, Mark Victor Tushnet is William Nelson Cromwell Professor of Law, Emeritus at Harvard Lew School. Tushnet graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall. His research includes studies of constitutional review in the United States and around the world, and the creation of other "institutions for protecting constitutional democracy." He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and a history of the Supreme Court in the 1930s.

Reviews

[Dawn Thomas · Rating 5 out of 5]

Taking Back the Constitution by Mark Tushnet

978-0300245981


320 Pages
Publisher: Yale University Press
Release Date: July 14, 2020

Non-fiction, History, Politics, Judicial Branch, Law

There is a reference from John Roberts that judges are like umpires at a ballgame calling balls and strikes. To me it is hard to see legal issues broken down to such simple definitions since the law seems to be more shades of gray. The placement of judges shows how the court could lean for decades.


This book is written as a reference book and although at times was difficult to read, I enjoyed learning about the Supreme Court and how it operates. It explains the difference between originalists and living constitutionalists referring how the constitution is interpreted. The basis seems to be intent of specific words which seems difficult to gage from a document written over 200 years ago. If you are interested in the law, politics, or the future direction of the country, you may enjoy this book.

[TBHONEST · Rating 5 out of 5]

Taking Back the Constitution : Activist Judges and the Next Age of American Law is an insightful and thought provoking look at how judges’ own views influence how they decide cases. Extremely relevant and eye opening read.

[Dan Cotter · Rating 5 out of 5]

This is an interesting book about current state of judiciary, the Supreme Court in certain areas, and ways to address the current situation. Not everyone will agree with the author on his thoughts and conclusions, but worth a read. It does identify much that is wrong with the current sitaution.

[Laura Petto · Rating 3 out of 5]

While my views on the role of judicial power generally are fairly similar to Tushnet, I didn’t find his arguments for his solutions truly compelling. Throughly meh book. Also odd to read this post 21-23 terms“oh this wouldn’t happen” and it did

[Patrick Sobkowski · Rating 5 out of 5]

Mark Tushnet is, in my opinion, the best writer in the legal academy today. If you’re interested in the Supreme Court and constitutional politics, you should read this book.

[DigiHavel]

While I disagree with the reformist, prescriptive part of the book, I think the descriptive parts talking about how judges and Justices work and view themselves as part of an existing, politically defined constitutional order are excellent: well written, informed and informative.
Highly recommended.