The University of Kansas press has long punched above its weight. Lately, it has been publishing books concerning the “political” (that is, non-judicial) Constitution by political scientists, political theorists, and constitutional theorists. Many of these are part of a sort of judicial restraint revanchism, which is itself largely out of vogue among many constitutional theorists. Here’s another book that fits into this general category: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (Kansas Press), by Louis Fisher.

“Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the “unalterable fact,” as Chief Justice Rehnquist once remarked, “that our judicial system, like the human beings who administer it, is fallible.” And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions.

In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court’s decisions have, of course, been challenged and reversed in numerous cases—involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings—and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Courts decision in Citizens United, Fisher’s work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history.

The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court’s nine justices as democracy’s last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government—and, finally, to the American people.”

An area of law and religion that has gotten a bit of attention relatively recently is the so-called “government speech” doctrine, which concerns the fairly liberal (in the non-political sense) rules about what the government may express about religion. So, for example, Summum v. Pleasant Grove City, in which a municipality rejected a privately donated monument by a religious group for display in a public park alongside several other monuments, including a Ten Commandments monument, was decided in favor of the municipality on the basis that the government has considerable latitude in deciding how to speak.

Here is an interesting new book that focuses on the doctrine of government speech in the law and religion context and elsewhere: The Government’s Speech and the Constitution (Cambridge University Press), by Helen Norton.

“When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government’s expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us? In The Government’s Speech and the Constitution, Professor Helen Norton investigates the variety and abundance of the government’s speech, from early proclamations and simple pamphlets, to the electronic media of radio and television, and ultimately to today’s digital age. This enables us to understand how the government’s speech has changed the world for better and for worse, and why the government’s speech deserves our attention, and at times our concern.”

Here’s a new book by Slate magazine writer Mark Joseph Stern about the Roberts Court. He seems to have some criticisms, and I have no doubt that some of them concern the Court’s religion clause jurisprudence. The book is American Justice 2019: The Roberts Court Arrives (University of Pennsylvania Press).

“Following the retirement of Justice Anthony Kennedy and the controversial confirmation of Justice Brett Kavanaugh, the Supreme Court plunged into a contentious term that featured divisive cases involving abortion, immigration, capital punishment, and voting rights on the court’s docket. In American Justice 2019, Mark Joseph Stern examines the term’s most controversial opinions and highlights the consequences of Chief Justice John Roberts stepping into a new role as the court’s swing vote.

No longer bound by Kennedy’s erratic moderation, Roberts has begun doling out victories to both Democrats and Republicans, albeit with a clear rightward tilt. Early in the term, Roberts delivered a public rebuke to Trump’s attacks on the judiciary, foreshadowing his refusal to tolerate some of the president’s most extreme contortions of the law. Stern tracks the chief justice’s evolution from staunch conservative to part-time centrist. Along the way, he details the term’s blockbusters and surprises, including an unlikely alliance between Justices Neil Gorsuch and Sonia Sotomayor on criminal justice, and an especially radical ruling on the death penalty that overturned decades of precedent. Stern’s account depicts a court sharply divided over its role in American democracy, with the man at its center striving to stay above the political fray without abandoning his conservative instincts.”

I’m delighted to announce the publication of this new volume of collected essays on the history, political theory, and law of religious freedom, co-edited by my friend Michael Breidenbach and Owen Anderson: The Cambridge Companion to the First Amendment and Religious Liberty (Cambridge University Press). It won’t be out for a few more months, and I’ll mention it again closer to the date of release. But it’s loaded with interesting pieces by the likes of John Finnis, Steve Smith, Don Drakeman, Zoë Robinson, Phillip Muñoz, Jonathan Den Hartog, and many others. I’ve got a piece in there as well.

“This book is an interdisciplinary guide to the religion clauses of the First Amendment with a focus on its philosophical foundations, historical developments, and legal and political implications. The volume begins with fundamental questions about God, the nature of belief and worship, conscience, freedom, and their intersections with law. It then traces the history of religious liberty and church-state relations in America through a diverse set of religious and non-religious voices from the seventeenth century to the most recent Supreme Court decisions. The Companion will conclude by addressing legal and political questions concerning the First Amendment and the court cases and controversies surrounding religious liberty today, including the separation of church and state, corporate religious liberty, and constitutional interpretation. This scholarly yet accessible book will introduce students and scholars alike to the main issues concerning the First Amendment and religious liberty, along with offering incisive new insights into one of the most important topics in American culture.”