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Judges on Judging

Judges on Judging
Views from the Bench

Fifth Edition
Edited by:

May 2016 | 392 pages | CQ Press

Thoroughly revised and updated for this Fifth Edition, Judges on Judging offers insights into the judicial philosophies and political views of those on the bench.  Broad in scope, this one-of-a-kind book features “off-the-bench” writings and speeches in which Supreme Court justices, as well as lower federal and state court judges, discuss the judicial process, constitutional interpretation, judicial federalism, and the role of the judiciary. Engaging introductory material provides students with necessary thematic and historical context making this book the perfect supplement to present a nuanced view of the judiciary.

Judges on Judging is consistently rated by my students as their favorite book in my class. No other single volume provides them with such a clear and accessible sense of what judges do, what courts do, and the way judges think about their roles and their courts.”

—Douglas Edlin, Dickinson College

Part I: Judicial Review and American Politics
Warren E. Burger
Chapter 1: The Doctrine of Judicial Review: Mr. Marshall, Mr. Jefferson, and Mr. Marbury
Marbury v. Madison: Act One, The Setting

Marbury v. Madison: The Second Act


Robert H. Jackson
Chapter 2: The Supreme Court in the American System of Government
The Supreme Court as a Unit of Government

Executive v. Legislative

Federal Power v. State Power

State v. State

Majority v. Individual

Part II: The Dynamics of the Judicial Process
Trial Judges and the Adversarial Process

Appellate Judges and the "Caseload Crisis"

The Supreme Court and the Judicial Process

Jerome Frank
Chapter 3: The "Fight" Theory versus the "Truth" Theory
Marvin E. Frankel
Chapter 4: The Adversary Judge: The Experience of the Trial Judge
The Role as Written

The Adversary Performance

The Judge Embattled

The Judge Discomforted

D. Brock Hornsby
Chapter 5: The Business of the U.S. District Courts
Civil Lawsuits

Criminal Prosecutions


Alex Kozinski
Chapter 6: What I Ate for Breakfast and Other Mysteries of Judicial Decision Making
Stephen Reinhardt
Chapter 7: Whose Federal Judiciary Is It Anyway?
Lewis F. Powell Jr.
Chapter 8: What Really Goes on at the Supreme Court
William H. Rehnquist
Chapter 9: The Supreme Court's Conference
John Paul Stevens
Chapter 10: Deciding What to Decide: The Docket and the Rule of Four
John M. Harlan II
Chapter 11: The Role of Oral Argument
William O. Douglas
Chapter 12: The Dissent: A Safeguard of Democracy
Search for Certainty

Legislative Process One of Compromise

Interpretation Has Legislative Characteristics

Stare Decisis Has Small Place in Constitutional Law

Uncertainty Necessary for Democracy

Judges Share Crises of Modern Society

Part III: The Judiciary and the Constitution
Joseph Story
Chapter 13: Commentaries on the Constitution of the United States

Chapter IV. Who Is Final Judge or Interpreter in Constitutional Controversies

Chapter V. Rules of Interpretation

Oliver Wendell Holmes Jr.
Chapter 14: The Path of Law
Benjamin N. Cardozo
Chapter 15: The Judge as a Legislator
William H. Rehnquist
Chapter 16: The Notion of a Living Constitution
William Wayne Justice
Chapter 17: A Relativistic Constitution
J. Clifford Wallace
Chapter 18: The Jurisprudence of Judicial Restraint: A Return to the Moorings
The Constitution and the Theory of Judicial Restraint

The Practical Application of Judicial Restraint

Judicial Restraint's Response to Judicial Activism

Robert H. Bork
Chapter 19: Tradition and Morality in Constitutional Law
Richard A. Posner
Chapter 20: What Am I, a Potted Plant? The Case Against Strict Constructionism
Antonin Scalia
Chapter 21: Originalism: The Lesser Evil
Clarence Thomas
Chapter 22: Judging
Thurgood Marshall
Chapter 23: The Constitution: A Living Document
William J. Brennan Jr.
Chapter 24: The Constitution of the United States: Contemporary Ratification
John Paul Stevens
Chapter 25: Originalism and History
David H. Souter
Chapter 26: On Constitutional Interpretation
Ruth Bader Ginsburg
Chapter 27: Speaking in a Judicial Voice: Reflections on Roe v. Wade
Stephen G. Breyer
Chapter 28: Our Democratic Constitution
Richard A. Posner
Chapter 29: Against Constitutional Theory
Part IV: Our Dual Constitutional System: The Bill of Rights and the States
Hugo L. Black
Chapter 30: The Bill of Rights
William J. Brennan Jr.
Chapter 31: Guardians of Our Liberties - State Courts No Less Than Federal
Hans A. Linde
Chapter 32: First Things First: Rediscovering the States' Bills of Rights

The Logic of Federalism

Putting Principle into Practice

Jeffrey S. Sutton
Chapter 33: What Does - and Does Not - Ail State Constitutional Law
The Content and Length of State Constitutions

The Ease of Amending State Constitutions

Judicial Elections

Lockstep Interpretations


Judith S. Kaye
Chapter 34: State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions
Common Law Courts Construing State Constitutions

Common Law Courts Construing State Statutes


“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."

Mark P. Petracca
University of California, Irvine

“Of the books I use in the Judicial Process course, my students consistently rate Judges on Judging as their favorite and most interesting. The articles delve deeply into the Court's role in a constitutional republic and frequently lead to active student classroom debate. I’ve used O’Brien’s text for over a decade, and my students consistently come away with knowledge of the judiciary and its role in the American political system that is more sophisticated and nuanced.”

John Hermann
Trinity University

Judges on Judging is a comprehensive collection of essays with significant insights into the views of leading justices and judges on the judicial process, the dynamics of judicial interpretation, deliberation and decision-making, and the role of courts. O’Brien’s text offers students an extraordinary inside look at justices’ and judges’ thinking, their characters, judicial philosophies, and views of the judiciary in society. It is a practical and accessible resource for anyone interested in law and courts.”

Karen L. Owen
Reinhardt University

Judges on Judging is consistently rated by my students as their favorite book in my class. No other single volume provides them with such a clear and accessible sense of what judges do, what courts do, and the way judges think about their roles and their courts.”

Douglas Edlin
Dickinson College
Key features
  • New chapter: Justice John Paul Stevens on history and "originalism"
  • New chapter: Judge Judith Kayer on state courts in the 21st century
  • New chapter: State courts in the 21st century
  • More attention to rival theories of constitutional interpretation
  • Completely revised and updated introductory essays

Sample Materials & Chapters

Chapter 21

Chapter 24

Sage College Publishing

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