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Rating: 
Summary: McCloskey book
Review: As I read the McCloskey book, I was deeply impressed with his explication of the matter-of-fact ways by which our Supreme Court has gained and maintained respect, power, and legitimacy. However, there is one main criticism. As McCloskey candidly admits in the preface, "...my aim is to see the Court as an agency in the American governing process, an agency with a mind and a will and an influence of its own" (McCloskey, , 1994, xvii). Operating under such an assumption, it is not surprising that his argument becomes schematic and implicitly rejects historical contingency as a dominant explanation for the development of the Supreme Court. As result, his book is primarily useful in helping us to understand the actions the court takes during well-defined periods, such as the life-span of its members. Nevertheless, I think a somewhat unseen strength of this book is its pragmatic advice for members, as opposed to students, of the Court. In particular, ! when McCloskey explains with such precise detail how and why the "brethren" were able to "conquer a judicial empire" (McCloskey, 1994, pp. 23) his peculiar word choice makes him fit well with Niccololo Machiaveli, who in a passage from The Prince, (with similar motives?) writes, I hope it may not be considered presumption if a man of low and humble condition dare to discuss and lay down rules for the government of princes.....[but] if your Magnificence will read and study [them] carefully you may obtain the summit of greatness which fortune and other qualities promise you (Machiaveli, 1947, xiii~xiv). Does McCloskey's work contain an equivalent "recipe for greatness?" And if it does, how do we evaluate it? These are the two main questions I will focus on and attempt to answer. From my reading of McCloskey, I firmly believe that his study, although undoubtedly multifaceted, was at least partially intended to be pedagogical. Above all he was concerned with pol! itical and social stability and he felt that the Court oug! ht to be a "vital actor in the epic of American constitutionalism" (McCloskey, 1994, pp. 148). Yet for him, exactly what the court did was less important than how they did it. His concern was for the Court to be a successful and independent part of government and much of his work can therefore be understood as a set of guidelines by which the Supreme Court can effectively play its role. For the most part, his interpretation of the Court's history served as the source for his "blueprint to greatness." For McCloskey then, a completely natural corollary of heeding historical lessons was a Court whose decisions have "maximum impact." Yet it seems that professor McCloskey's "historical guidelines" tend to support a theory of Constitutional interpretation that many conservative and liberal purists would be quite unwilling to embrace. He appears (unknowingly?) to have fashioned a rather odd ethical theory whereby all judicial decisions are evaluated in terms of their stra! tegic effects. Indeed, all this talk of "strategy" and "decisions with maximum impact" brings to mind the image of a military press-briefing where a general refers to retreats as being "tactical" and dead civilians as being "corollary casualties." More to the point, there seems to be little room for moral courage and social sensitivities in the McCloskey formula. For example, concerning the landmark case of Dred Scott v. Standford (1857) his major criticism was that the Court did not "learn the lessons of its past successes and failures" and that it should not be touching such a "political hot potato" (McCloskey, 1994, pp. 60). One might have expected him to strongly denounce the decision (which held among other things that Negroes were not intended to be included "in the category of citizen") as constitutionally preposterous or at least immoral, but professor McCloskey does not overly concern himself with such ephemeral particularities. Essential! ly, his approach manifests an implicit concern for long! -term procedures over short-term substance--tactics, strategies, and end results are his chief concern. Just as a military strategist, he avoids focusing too much on individual cases and attempts by induction to detect a grand pattern in the Court's history. Through this historical mode of analysis he connately lays down a set of practical guidelines so that the Supreme Court, in Machiaveli's words, "may obtain the summit of greatness which fortune promises." Philosophers have a certain designation for these sort of cold and rational calculations: Legal Empiricism. In spite of my heartfelt objections to empiricist legal philosophy, intellectually I must concede that there is a certain political reality involved in Supreme Court adjudication that many court-observers are hesitant to squarely confront. In particular, members of the Supreme Court face a somewhat unique dilemma in that the legally and morally right decision may often bring about the wrong resu! lts. As John Stuart Mill suggests, decisions which are not based upon deduction from past experience may only be presently advantageous and thus a violation of "transcendent expediency" (Mill, 1979, pp. 22). In this sense, I think professor McCloskey would agree that the greatest sort of lessons the Supreme Court can learn are historical and thus transcendent.
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