Judges on Judging

David M. O’Brien is the Leone Reaves and George W. Spicer Professor at the University of Virginia. Prior to teaching at the University of Virginia, he taught at the University of California, Santa Barbara, and the University of Puget Sound, where he was chairman of the Department of Politics. He served as a research associate in the Office of the Administrative Assistant to the Chief Justice and, in 1982–1983, as a judicial fellow at the Supreme Court. He also has been a visiting fellow at the Russell Sage Foundation in New York (1981–1982); has been a Fulbright lecturer in constitutional studies at Oxford University, England (1987–1988); has been a Fulbright researcher in Japan (1993–1994); has held the Fulbright Chair for Senior Scholars at the University of Bologna in Italy (1999); and was a visiting professor at Florida International University (2002) and at the Institut d’Etudes Politique, Université Lumière-Lyon II in Lyon, France (2006).Among his many books are Storm Center: The Supreme Court in American Politics, eleventh edition (2017), which won the American Bar Association’s Silver Gavel Award; Constitutional Law and Politics: Struggles for Power and Governmental Accountability and Civil Rights and Civil Liberties, tenth edition, two volumes (2017); Animal Sacrifice and Religious Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah (2004); To Dream of Dreams: Religious Freedom and Constitutional Politics in Postwar Japan (1996); Supreme Court Watch, published annually since 1991; Congress Shall Make No Law: The First Amendment, Unprotected Expression, and the U.S. Supreme Court (2010); Judicial Roulette (1988); What Process Is Due? Courts and Science Policy Disputes (1987); The Public’s Right to Know: The First Amendment and the Supreme Court (1981); and Privacy, Law, and Public Policy (1979). He has coauthored The Judicial Process: Law, Court and Judicial Politics (2015), Courts and Judicial Policymaking (2008) Government by the People (22nd ed. 2008), and Abortion and American Politics (1993); edited or coedited several books, including The Lanahan Readings on Civil Rights and Civil Liberties, third edition (2010) and Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (2001); and contributed more than 100 articles and chapters in professional journals and books.

"I’ve been using O’Brien′s edited collection in my upper-division course on the U.S. Supreme Court since its first edition. As a supplement to a variety of other, more scholarly and journalist readings, O’Brien′s collection gives a compelling voice to the justices. Students welcome (and appreciate) the opportunity to directly explore the thinking and perspective of the nation′s leading jurists on virtually all the topics covered in the course, and the collection provides a productive foil to contemporary scholarship."

• Part I: Judicial Review and American PoliticsChapter 1: The Doctrine of Judicial Review: Mr. Marshall, Mr. Jefferson, and Mr. Marbury - Warren E. BurgerMarbury v. Madison: Act One, The SettingMarbury v. Madison: The Second ActEpilogueChapter 2: The Supreme Court in the American System of Government - Robert H. JacksonThe Supreme Court as a Unit of GovernmentExecutive v. LegislativeFederal Power v. State PowerState v. StateMajority v. IndividualPart II: The Dynamics of the Judicial ProcessTrial Judges and the Adversarial ProcessAppellate Judges and the "Caseload Crisis"The Supreme Court and the Judicial ProcessChapter 3: The "Fight" Theory versus the "Truth" Theory - Jerome FrankChapter 4: The Adversary Judge: The Experience of the Trial Judge - Marvin E. FrankelThe Role as WrittenThe Adversary PerformanceThe Judge EmbattledThe Judge DiscomfortedChapter 5: The Business of the U.S. District Courts - D. Brock HornsbyCivil LawsuitsCriminal ProsecutionsConclusionChapter 6: What I Ate for Breakfast and Other Mysteries of Judicial Decision Making - Alex KozinskiChapter 7: Whose Federal Judiciary Is It Anyway? - Stephen ReinhardtChapter 8: What Really Goes on at the Supreme Court - Lewis F. Powell Jr.Chapter 9: The Supreme Court′s Conference - William H. RehnquistChapter 10: Deciding What to Decide: The Docket and the Rule of Four - John Paul StevensChapter 11: The Role of Oral Argument - John M. Harlan IIChapter 12: The Dissent: A Safeguard of Democracy - William O. DouglasSearch for CertaintyLegislative Process One of CompromiseInterpretation Has Legislative CharacteristicsStare Decisis Has Small Place in Constitutional LawUncertainty Necessary for DemocracyJudges Share Crises of Modern SocietyPart III: The Judiciary and the ConstitutionChapter 13: Commentaries on the Constitution of the United States - Joseph StoryPrefaceChapter IV. Who Is Final Judge or Interpreter in Constitutional ControversiesChapter V. Rules of InterpretationChapter 14: The Path of Law - Oliver Wendell Holmes Jr.Chapter 15: The Judge as a Legislator - Benjamin N. CardozoChapter 16: The Notion of a Living Constitution - William H. RehnquistChapter 17: A Relativistic Constitution - William Wayne JusticeChapter 18: The Jurisprudence of Judicial Restraint: A Return to the Moorings - J. Clifford WallaceThe Constitution and the Theory of Judicial RestraintThe Practical Application of Judicial RestraintJudicial Restraint′s Response to Judicial ActivismChapter 19: Tradition and Morality in Constitutional Law - Robert H. BorkChapter 20: What Am I, a Potted Plant? The Case Against Strict Constructionism - Richard A. PosnerChapter 21: Originalism: The Lesser Evil - Antonin ScaliaChapter 22: Judging - Clarence ThomasChapter 23: The Constitution: A Living Document - Thurgood MarshallChapter 24: The Constitution of the United States: Contemporary Ratification - William J. Brennan Jr.Chapter 25: Originalism and History - John Paul StevensChapter 26: On Constitutional Interpretation - David H. SouterChapter 27: Speaking in a Judicial Voice: Reflections on Roe v. Wade - Ruth Bader GinsburgChapter 28: Our Democratic Constitution - Stephen G. BreyerChapter 29: Against Constitutional Theory - Richard A. PosnerPart IV: Our Dual Constitutional System: The Bill of Rights and the StatesChapter 30: The Bill of Rights - Hugo L. BlackChapter 31: Guardians of Our Liberties - State Courts No Less Than Federal - William J. Brennan Jr.Chapter 32: First Things First: Rediscovering the States′ Bills of Rights - Hans A. LindeHistoryThe Logic of FederalismPutting Principle into PracticeChapter 33: What Does - and Does Not - Ail State Constitutional Law - Jeffrey S. SuttonThe Content and Length of State ConstitutionsThe Ease of Amending State ConstitutionsJudicial ElectionsLockstep InterpretationsConclusionChapter 34: State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions - Judith S. KayeCommon Law Courts Construing State ConstitutionsCommon Law Courts Construing State Statutes