United States Howard Ball. Judicial Craftsmanship or Fiat? Direct Overturn by the United States Supreme Court. Pp. xiv, 160. Westport, CT: Greenwood Press, 1978. $18.95

• Published date: 01 January 1979
• Author: Robert G. Seddig
• DOI: 10.1177/000271627944100133
• Date: 01 January 1979
• Subject Matter: Articles

213

ficials

is

evident.

It

is

regretable

and

annoying

that

the

account

is

marred

by

several

minor

inaccuracies

and

errors.

HAROLD

K.

JACOBSON

The

University

of

Michigan

Ann

Arbor

UNITED

STATES

HOWARD

BALL.

Judicial

Craftsmanship

or

Fiat?

Direct

Overturn

by

the

United

States

Supreme

Court.

Pp.

xiv,

160.

Westport,

CT:

Greenwood

Press,

1978.

$18.95.

In

1959

Herbert

Wechsler

rekindled

the

long-standing

debate

regarding

the

need

for

principled

decisions

in

consti-

tutional

interpretation.

To

Wechsler-

and

to

many

others

before,

such

as

James

s

Bradley

Thayer

in

the

nineteenth

century

-the

limits

of

the

judicial

function

are

prescribed

by

the

logic

and

language

of ,

law

itself.

For

judges

to

go

beyond

such

externally

imposed

limits

leads

to

an

adulteration

of

the

judicial

process.

But

can

the

outcomes

of

difficult

consti-

tutional

cases

rest

solely

upon

the

logic,

consistency,

and

general

principles

of

law?

Of

course

not.

To

try

to

under-

stand-and

then

to

cast

into

intelligible

language-the

nature

of

the

judicial

function

has

been

the

mission

of

many.

Few

have

succeeded.

Benjamin

Car-

dozo,

Felix

Frankfurter,

and

Glendon

Schubert

(each

in

his

own

diverse

way)

have.

Howard

Ball

has

not.

Ball

has

attempted

to

create

an

opera-

tional

definition

of

judicial

craftsman-

ship

using

Wechsler’s

notion

of

a

prin-

cipled

decision.

In

order

to

exhibit

such

craftsmanship,

the

United

States

Supreme

Court,

in

reversing

itself,

must

decide

&dquo;in

a

principled

manner.&dquo;

Ball

goes

on:

the

&dquo;thesis

posited

is

that

when

the

Court

overturns,

it

must

base

its

stance

on

one

of

three

justifications:

rightness,

factual

correctness,

and

con-

stitutional

principles&dquo;

(p.

xiii).

The

ab-

sence

of

craftsmanship

is

decision

by

fiat.

Undaunted

by

the

overwhelming

prob-

lems

(which

eventually

ensnare

the

author

himself)

of

trying

to

operationalize

rightness,

factual

correctness,

and

extant

general

principles,

Ball

produces

a

chapter

each

on

three

Supreme

Court

reversals

of

the

twentieth

century.

He

examines:

United

States

v.

Darby

Lum-

ber

Co.

(1941)

(overturning

Hammer

v.

Dagenhart);

West

Virginia

Board

of

Education

v.

Barnette

(1943)

(overturn-

ing

Minersville

v.

Gobitis;

and Hudgens

v.

National

Labor

Relations

Board

(1976)

(overturning

Amalgamated

Food

Em-

ployees

Union

v.

Logan

Valley

Plaza).

His

conclusions

are

that

both

Darby

and

Barnette

(the

Second

Flag

Salute

Case)

are

good

examples

of

judicial

craftsmanship

because

they

right

the

errors

of

anachronistic

precedents.

That

Minersville

was

an

anachronism

is

not

so

clear

cut,

Ball

seems

to

tell

us,

be-

cause

of

the

complicating

factors

of

ex-

ternal

political

conditions

(the

coming

of

World

War

II)

and

Mr.

Justice

Frank-

furter’s

call

for

judicial

restraint.

Hudg-

ens

is

a

decision

by

&dquo;judicial

fiat&dquo;

in

large

measure

because

Ball

regards

Logan

Valley

Plaza

as

correctly

decided,

for

the

latter

&dquo;took

cognizance

of

chang-

ing

economic

and

social

conditions

and

began

to

develop

the

law

in

light

of these

realities&dquo;

(p.

133).

By

the

conclusion

of

the

three &dquo;case

studies,&dquo;

one

can

only

agree

with

the

im-

plicit

thesis

embedded

in

the

analysis:

it

is

indeed

necessary

to

go

beyond

the

general

principles

woven

into

constitu-

tional law

in

order

adequately

to

under-

stand

the

judicial

process.

That

Ball

so

steadfastly

refuses

to

recognize

(as

con-

temporary

political

scientists

almost

universally

do)

the

importance

of

such

factors

as

changed

Court

personnel,

jus-

tices’

ideologies

and

role

definitions,

and

collegial

or

group

decisionmaking,

in

explaining

the

judicial

process

will,

if

nothing

else,

surprise

his

readers.

There

are

other

surprises.

Noted

con-

stitutional

scholars

Alpheus

T.

Mason

and

Walter

F.

Murphy

became

Arthur

T.

Mason

and

William

Murphy

in

bibliographic

citations.

ROBERT

G. SEDDIG

The

University

of

Minnesota

Twin

Cities