1702693183 The study of the Chief Justice’s multiple duties was presented at a 2005 symposium on “the Chief Justice and the Institutional Judiciary,” sponsored by the University of Pennsylvania Law Review, which devoted its June 2006 issue to the papers presented at the symposium. See Judith Resnik and Lane Dilg, “Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States,” University of Pennsylvania Law Review 154 (2006): 1575–1664.

1702693184

1702693185 The quotation from Salmon Chase is from Alpheus Thomas Mason’s article, “The Chief Justice of the United States: Primus Inter Pares,” Journal of Public Law 17 (1968): 20–60. The later quotation about the “human factor” in a chief justice’s influence is also from this article.

1702693186

1702693187 Justice Kennedy’s letter to Justice Blackmun, and other correspondence among the justices relating to Lynch v. Donnelly, is in Box 586, Folder 6 of the Harry A. Blackmun Collection in the Manuscript Division of the Library of Congress.

1702693188

1702693189 Chief Justice Taft’s article on the Judiciary Act of 1925 was “The Jurisdiction of the Supreme Court Under the Act of February 13, 1925, ” Yale Law Journal 35 (1925): 1–12.

1702693190

1702693191 Chapter 5

1702693192

1702693193 H. W. Perry’s Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, MA: Harvard University Press, 1991) introduced the phrase “defensive denial” into the literature.

1702693194

1702693195 Morse v. Frederick, the case concerning a student’s banner with the puzzling proclamation “Bong Hits For Jesus,” is discussed by Frederick Schauer in his article “Is It Important to Be Important? Evaluating the Supreme Court’s Case-Selection Process, ” Yale Law Journal Online 119 (2009): 77–86. Sanford Levinson’s observations about the “litigated Constitution” versus the “hard-wired Constitution” come from his article “What Should Citizens (As Participants in a Republican Form of Government) Know About the Constitution?” William & Mary Law Review 50 (2009): 1239–60.

1702693196

1702693197 Chapter 6

1702693198

1702693199 Stephen Burbank’s article is “Judicial Independence, Judicial Accountability, and Interbranch Relations,” Georgetown Law Journal 95 (2007): 909–27. Efforts to strip the courts of jurisdiction over controversial issues are described in the leading recent study of the relationship between Congress and the federal judiciary, Charles Gardner Geyh’s When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (Ann Arbor: University of Michigan Press, 2006). The definitive account of congressional responses to the Supreme Court’s statutory rulings in the modern era is an article by William N. Eskridge Jr.,

1702693200

1702693201 “Overriding Supreme Court Statutory Interpretation Decisions,”Yale Law Journal 101 (1991): 331–455.

1702693202

1702693203 The Court’s decision upholding the rights of the Cherokees and provoking Andrew Jackson’s displeasure was Worcester v. Georgia(1832).

1702693204

1702693205 Ledbetter v. Goodyear Tire & Rubber Co., Inc. was overturned by the Lilly Ledbetter Fair Pay Act of 2009, P.L. 111–2, 123 Stat. 5 (2009).

1702693206

1702693207 Chapter 7

1702693208

1702693209 The quotation is from Cardozo’s The Nature of the Judicial Process, originally delivered in 1921 as the Storrs Lectures at Yale and kept in print since then by the Yale University Press. Justice O’Connor’s lecture was published as “Public Trust as a Dimension of Equal Justice, ” Court Review 36 (1999): 10–13. Chief Justice Rehnquist’s comments on public opinion come from a lecture published as“Constitutional Law and Public Opinion,” Suffolk University Law Review 20 (1986): 751–69.

1702693210

1702693211 The Epstein and Martin article, “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why)”was published in the University of Pennsylvania Journal of Constitutional Law 13 (2010): 263–81. The “republican schoolmaster” image is from Ralph Lerner, “The Supreme Court as Republican Schoolmaster,” Supreme Court Review 1967(1967): 127–80. The study referred to on the issue of assisted suicide is from the chapter “The Right to Die” by Joshua A. Green and Matthew G. Jarvis, in Public Opinion and Constitutional Controversy, ed. Nathaniel Persily, Jack Citrin, and Patrick J. Egan(New York: Oxford University Press, 2008). The Persily book is also the source for the “legitimation hypothesis” mentioned in the text.

1702693212

1702693213 The results of the 2005 survey on public understanding of the courts are reported by Kathleen Hall Jamieson and Michael Hennessy in “Public Understanding of and Support for the Courts: Survey Results,” Georgetown Law Journal 95 (2007): 899–902. More recent surveys of students in grades four, six, and twelve, conducted by a unit of the U.S. Department of Education, continue to reveal similarly alarming gaps in knowledge about basic civics. See The Nation’s Report Card: Civics 2010: National Assessment of Educational Progress at Grades 4, 6, and 12, issued in May 2011 by the National Center for Education Statistics and available at http://nces.ed.gov/nationsreportcard/pdf/main2010/2011466.pdf.

1702693214

1702693215 Robert Dahl’s assessment of the Court’s role in the political system is from his article “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957) 279–95. The 1972 Gallup Poll on attitudes toward abortion is discussed in Linda Greenhouse and Reva B. Siegel, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (New York: Kaplan, 2010). The political aftermath of the abortion decision is discussed in Linda Greenhouse and Reva B. Siegel, “Before (and After) Roe v. Wade: New Questions About Backlash,” Yale Law Journal 120 (2011): 2028–87.

1702693216

1702693217 Chapter 8

1702693218

1702693219 Thomas Jefferson’s objection to English law is discussed by David J. Seipp in his article, “Our Law, Their Law, History, and the Citation of Foreign Law,” Boston University Law Review 86 (2006): 1417–46. An article that offers a particularly useful comparative analysis in the modern context is John Ferejohn and Pasquale Pasquino’s “Constitutional Adjudication: Lessons from Europe, ” Texas Law Review 82 (2003–2004): 1671–1704.

1702693220

1702693221 Cases cited

1702693222

1702693223 Supreme Court opinions are published by the government in a series of volumes called United States Reports. Opinions are identified by volume and page number. Thus, the official citation for Brown v. Board of Education is 347 U.S. 483 (1954); it appears beginning on page 483 of vol. 347 of United States Reports and was decided in 1954. In the Court’s early decades, there was no United States Reports, and the volumes were known by the name of the Reporter (originally an unofficial, unpaid position) who published them. Thus, Marbury v. Madison is cited today as 1 Cranch(5 U.S.) 137 (1803) because the opinion appeared in a volume produced by William Cranch, the Court’s second Reporter. (The first Reporter was Alexander J. Dallas, whose abbreviated name appears in the citations to the Court’s earliest opinions.) The early volumes were retrospectively assigned “U.S.” volume numbers later in the nineteenth century, after Congress appropriated money to publish the series. The Court’s Reporter of Decisions, as the official position is now known, is still responsible for overseeing the publication of accurate texts of opinions.

1702693224

1702693225 What follows are citations for all opinions mentioned in the text and in the References.

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1702693227 Atkins v. Virginia, 536 U.S. 304 (2002)

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1702693229 Board of Regents, University of Alabama v. Garrett, 531 U.S. 356 (2001)

1702693230

1702693231 Boumediene v. Bush, 553 U.S. 723 (2008)

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