Chapter 14 Further Reading

The Supreme Court has produced an enormous body of secondary literature. The works listed here are selected for analytic quality, accessibility to non-specialists, and ideological breadth. The book has worked hard to draw from across the political spectrum: any reader who reads only the works that confirm their priors will leave with a partial understanding of the institution. The annotations identify the standpoint of each work where helpful.

Foundational Books on the Court as Institution

Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007). A narrative account of the Rehnquist Court and the early Roberts Court, drawing on confidential interviews with the justices and their clerks. Toobin writes from a center-left perspective; the book is reportorial rather than ideological. The character sketches of O'Connor, Kennedy, Souter, Rehnquist, and others are unusually rich.

Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (2012). The companion volume covering the early Obama-era Court, including the NFIB v. Sebelius drama and the Roberts-Sotomayor relationship. Same strengths and same standpoint as The Nine.

Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (with Michael Graetz, 2016). A historical account of the 1969-1986 period that complicates the narrative of the Burger Court as a transitional moment. Greenhouse, the longtime New York Times Supreme Court reporter, writes with deep institutional knowledge and a center-left analytical voice. Her subsequent essays in the Times are essential current reading.

Akhil Reed Amar, The Words That Made Us: America's Constitutional Conversation, 1760-1840 (2021). An originalist-friendly but not exclusively conservative reading of the founding-era constitutional debate. Amar is a Yale law professor who defends a robust role for both originalism and the Court's responsibility to apply constitutional principles to new circumstances. His America's Constitution: A Biography (2005) is the predecessor volume.

Adam Liptak, To Have and Uphold: The Supreme Court and the Battle for Same-Sex Marriage (2015) and his ongoing New York Times columns. Liptak's columns are some of the most reliable contemporary reporting on the Court. His writing is centrist, technically careful, and accessible.

On the Confirmation Process

Lee Epstein and Jeffrey Segal, Advice and Consent: The Politics of Judicial Appointments (2005). A political-science account of confirmations from a quantitative-empirical perspective. The book pre-dates Garland and the 2020 Barrett rush but provides the analytical framework for understanding the longer trajectory.

Christopher Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process (2007). A reform-oriented analysis written before the Garland episode but anticipating many of its concerns.

Carl Hulse, Confirmation Bias: Inside Washington's War over the Supreme Court, from Scalia's Death to Justice Kavanaugh (2019). Hulse is the chief Washington correspondent for the New York Times. The book covers the Garland-Gorsuch-Kavanaugh sequence in reportorial detail.

Ruth Marcus, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover (2019). Marcus is a Washington Post columnist; the book's title signals its standpoint. It is, however, well-reported and includes substantial detail on the inside dynamics of the Kavanaugh hearings.

On the Shadow Docket

Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Generate Distrust (2023). The definitive institutional critique of the modern shadow docket. Vladeck is at Georgetown Law (formerly Texas); his standpoint is center-left and methodological rather than partisan. Even readers who disagree with his conclusions will benefit from his account of the data.

William Baude, "Foreword: The Supreme Court's Shadow Docket" (Northwestern University Law Review, 2015). The article that coined the term. Baude is at the University of Chicago and writes from an originalist conservative perspective. The article is more measured than Vladeck's later book and provides the foundation for understanding the empirical phenomenon.

Adam White, "The Supreme Court's Shadow Docket: A Sometimes-Necessary Tool" (American Enterprise Institute, ongoing essays). White is a conservative legal scholar whose perspective on the shadow docket runs in the other direction from Vladeck's: he sees the docket as an institutional response to lower-court overreach, not as Court overreach in itself.

Originalism and Its Critics

Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012). The most thorough modern statement of textualist methodology by Justice Scalia, written near the end of his life. Indispensable for understanding contemporary originalism.

Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (revised ed. 2014). A libertarian originalist account that emphasizes the role of natural rights and limited federal power. Barnett is a Georgetown law professor.

Jack Balkin, Living Originalism (2011). A title designed to provoke. Balkin, a Yale law professor on the center-left, argues that originalism, properly understood, supports many of the doctrinal moves usually associated with living constitutionalism. The book is a serious challenge to both rigid originalists and rigid living constitutionalists.

David Strauss, The Living Constitution (2010). The leading common-law constitutionalist account. Strauss is at the University of Chicago. The book argues that the operative American constitution is a body of judicial doctrine accumulated over time, not the parchment text alone.

Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (2020). Tushnet is a Harvard law professor on the left; this book is part of his decades-long argument that the Court has been more conservative-activist than the conventional "judicial restraint" framing suggests.

On the Roberts Court Specifically

Erwin Chemerinsky, Worse Than Nothing: The Dangerous Fallacy of Originalism (2022). Chemerinsky is dean of Berkeley Law and a leading liberal constitutional scholar. The book argues that originalism, as practiced by the current Court, is methodologically incoherent. The argument is sharp and the polemical edge is visible; readers should pair it with Scalia, Barnett, or Balkin to see the originalist response.

Adrian Vermeule, Common Good Constitutionalism (2022). Vermeule is at Harvard Law and writes from a position to the right of conventional originalism, arguing for a "common good" approach grounded in classical natural-law tradition. His framework is not the Roberts Court's, but his critique of liberal proceduralism is influential among certain conservative legal thinkers.

Lawrence Tribe, To End a Presidency (with Joshua Matz, 2018). Tribe is a Harvard law professor and longtime liberal constitutional scholar. The book is on impeachment but reflects Tribe's broader institutional concerns about the modern Court.

Stephen Breyer, The Authority of the Court and the Peril of Politics (2021). Breyer's last book before his retirement. A relatively gentle defense of judicial restraint and institutional legitimacy from a center-left perspective.

Neil Gorsuch, A Republic, If You Can Keep It (2019). A justice's own account of his judicial philosophy. Gorsuch writes accessibly and engages serious arguments rather than retreating into partisan rhetoric.

Sonia Sotomayor, My Beloved World (2013). A memoir rather than a jurisprudential treatise, but worth reading for the personal context she brings to her work.

Court Reform

Presidential Commission on the Supreme Court of the United States, Final Report (December 2021). The 288-page report of the Biden-appointed commission. It does not recommend any particular reform but presents the arguments for and against court packing, term limits, jurisdiction stripping, and other proposals. Available on the White House website.

Roger Cramton and Paul Carrington, Reforming the Court: Term Limits for Supreme Court Justices (2006). The classic argument for term limits, written before the issue gained current political traction.

Sheldon Whitehouse, The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court (2022). Senator Whitehouse, D-RI, makes the case for major court reform from a Democratic-progressive perspective. The book is polemical but well-sourced.

Adrian Vermeule, "The Supreme Court's Legitimacy Problem" (and related essays at The New Atlantis and the journal American Affairs). The most thoughtful defense of the current Court from a position that does not endorse standard-issue conservative legal advocacy. Vermeule's arguments often surprise readers across the spectrum.

Reading the Court's Output

SCOTUSblog (scotusblog.com). The leading reference site for the Court. Founded by Tom Goldstein and Amy Howe; now operated by a successor team. The "Statpack" produced each term is the canonical statistical summary.

Oyez (oyez.org). Audio and transcripts of every oral argument since 1955, plus case summaries and biographical material on the justices. A free, ad-supported public-interest project.

The Volokh Conspiracy (reason.com/volokh). A long-running blog written primarily by libertarian and conservative legal academics. The contributors include Eugene Volokh (UCLA), Will Baude (Chicago), Ilya Somin (George Mason), Josh Blackman (South Texas), and others. The site is essential for engaging serious right-of-center legal thinking.

Strict Scrutiny (podcast). A weekly podcast hosted by law professors Leah Litman, Melissa Murray, and Kate Shaw. The standpoint is left-of-center and the analysis is technically rigorous.

Advisory Opinions (podcast). A weekly podcast hosted by David French (now of the New York Times) and Sarah Isgur (former Trump-administration spokesperson, now of The Dispatch). The standpoint is center-right but methodologically careful.

The careful reader will read both Strict Scrutiny and Advisory Opinions; both Vermeule and Chemerinsky; both Barnett and Balkin; both Vladeck and Baude. Reading only one side produces overconfident conclusions. Reading both is the most reliable path to understanding the institution.