Tuesday, April 3, 2012

Thanks, and a Plug for a Podcast

Thanks, Mary, Dan, Tomiko, and Karen,

I am honored to join you as a guest blogger. I have been following the blog closely since Mary founded it. The LHB has been an outstanding resource for the most recent work in legal history, for reflecting on the classics and general historical themes, and for keeping up with events in the world of legal history. Just as importantly, it has fostered more of a sense of community among legal historians.

I will blog a bit about my new book, The People’s Courts: Pursuing Judicial Independence in America, on the history of judicial elections and judicial independence. But first, a brief note: I was on the Slate Gabfest last week talking about the Supreme Court ObamaCare arguments and about the book. A link to the Gabfest is here.

I talk about some commerce clause precedents, Wickard v. Filburn (1942) and Gonzales v. Raich (2005). I also highlight an interesting observation from the oral arguments by one of my colleagues, Einer Elhauge, that there may be a procedural compromise in the works between Chief Justice Roberts and Justice Kagan on this “facial” challenge (to uphold the individual mandate at this stage) vs. a later “as applied” challenge (to recognize the mandate’s unconstitutionality with respect to classes of citizens who will almost never be among the 95% of Americans who receive some kind of health care in any five-year period).

In the remaining part of the podcast, I summarize the book’s thesis, that judicial elections arose in America because of a widespread commitment to the idea of judicial independence, as much as the idea of judicial accountability. The book identifies reform movements in each generation (longer terms in the Reconstruction era, non-partisan elections in the Progressive Era, and merit selection during the Great Depression, the 1950s, ‘60s and ‘70s) that were also driven by the goal of judicial independence. The concept of judicial independence evolves over time in different political and legal contexts, just as the problem of corruption evolves along with the reforms.

This leads me to a question: Perhaps someone might be interested in starting a regular "Legal History Podcast," a spin-off from the Legal History Blog? It could be forum for legal historians to talk briefly about their works in progress and about recent publications.

A link to Einer’s commentary on ObamaCare and the Kagan-Roberts compromise is here.