The book opens with a discussion of a case from Delaware challenging a long-standing requirement for partisan balance on state courts in the Delaware state constitution. The chapter goes on to note that substantively Marbury v. Madison (1803) was a case about the judicial appointment process. After a brief discussion of recent litigation over the appointment of federal administrative law judges, the chapter notes that litigation over judicial selection is consistent with Alexis de Tocqueville’s observation that “scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question.” The chapter identifies several expectations, describes the data collection process, and briefly outlines the chapters that follow.

The first part of Chapter 6 focuses on cases about the nomination process. A large percentage of these cases come from New York where party conventions are the primary method for nominating candidates. The chapter divides nomination cases into those concerning the initiation of candidacy (e.g., nominating petitions) and those concerning choosing nominees. Of more consequence are the cases concerning candidate speech and campaign finance, both of which led to major SCOTUS decisions. The speech cases focused heavily on codes placing limits on what candidates in judicial elections could say. In addition to speech code limitations, there were speech-related cases concerning defamation, misrepresentation, false statements or claims, impugning opponents, and improper promises or statements. In addition to speech issues, the chapter discussed other forms of improper candidate behavior (e.g., improper use of work resources by incumbents running for reelection). Campaign finance issues included those related to fundraising (e.g., solicitation by candidates, reporting requirements, requests for recusal due to parties or lawyers being involved in fundraising for the judge/s campaign), loans, expenditures, and public funding.

Chapter 4 discusses the types of cases that are the most consequential: those challenging the existing system of judicial selection and those concerning proposed or enacted changes to the system. The majority of challenges to systems were brought under the Voting Rights Act, which the US Supreme Court found to cover judicial elections, at least in certain ways. Efforts to challenge judicial elections under the one person, one vote doctrine were not successful because that doctrine applied only to “representatives,” a category not including judges. There were unsuccessful challenges brought on other grounds as well. The cases involving proposed and enacted changes covered a wide range of such changes.

The most glaring disparity in America’s search for equality has been and continues to be slavery and its legacy. In this chapter, we discuss the history of slavery, its purported elimination at the time of the Civil War and through the Reconstruction Amendments to the Constitution, then its reemergence through Jim Crow laws. The unfortunate reality is that the fight for equality is ever present. John Lewis, the long-serving member of the House of Representatives from Georgia, is emblematic of the importance and continuing nature of that fight. As a young man, he was nearly killed on the Edmund Pettus Bridge during the March on Selma. He continued to fight for racial equality throughout his life to the point of penning an op-ed published posthumously in the New York Times just days after his death. The federal government played an essential role in trying to advance the fight for racial equality, primarily through cases such as Brown v. Board of Education and legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Markets did not eliminate racial discrimination; they perpetuated and profited from it.

Donald Trump was not the first president to favor smaller government, but they understood and respected the need for government even as they favored an adjustment in the mix. Instead of a conversation about the mix, Trump made politics about the distrust and animosity of Americans toward other Americans. His efforts to retain the presidency even though he lost the election based on the “big lie” poisoned trust in elections that continues, and his plan to stop the election of Joe Biden discarded democracy altogether. These tactics made it more difficult to have a national conversation about a change in the mix of government and markets that could renew economic opportunity for those left behind by economic developments and previous decisions of government by both political parties. The government helped to unbuild the middle class when it borrowed money to fight the Vietnam War, ignored how globalization harmed many Americans even as it benefited others, and cut taxes in ways that mostly benefited the wealthy and robbed the government of needed resources.

The Deal New regulated banks, transportation, and energy among other industries, in the 1930s. In the 1970s, there was a mostly bipartisan effort to reduce regulation in those industries. Although Ronald Reagan is known as the deregulation president, it was Jimmy Carter that started deregulation in each of those industries. Alfred Kahn, whom Carter appointed to lead the Civil Aeronautics Board (CAB), together with recently retired Supreme Court Justice Stephen Breyer, advised Senator Ted Kennedy on how to deregulate airlines. The deregulation of truck, railroad, bus, and transportation, along with natural gas deregulation, followed. Deregulation was based on policy evidence that changes in those industries made it possible to lessen regulation and depend on markets to achieve greater efficiencies. By comparison, Congress decision to reduce regulation of savings and loan banks, based on industry lobbying, ended in disaster as S&Ls failed because of risky behavior and Congress had to bail them out. On balance, the regulation that occurred rebalanced the mix of government and markets in order to achieve a more robust economy.

This chapter brings readers’ attention to the fact that throughout United States history, government has been an active and necessary part of building the country. In the colonial period, for example, laws regulating taverns and other businesses proliferated. After the Founding, under the leadership of Alexander Hamilton and the federalists, the central government was seen as the necessary force needed to support an economy that then enabled the country to participate on the world economic stage. The anti-federalists, led by Thomas Jefferson and James Madison, aceded to the need for the government to support the economy in the ways proposed by the Federalists.

Understanding the government’s role in achieving the nation’s fundamental political values provides a roadmap for appreciating why time after time, the country has expanded government sometimes in bunches and sometimes in smaller batches. Government has been necessary to create, sustain, and expand markets, to protect people from economic loss and physical injury, and to maintain a social safety net for people mired in poverty due to age, health, or market conditions, not of their doing. History establishes that the defenders of government have a good story to tell. But they must tell it. The future of the country depends on appreciating what the government does and why it does it because the government remains essential to achieving our nation and its values.

After the Progressive Era of the late 19th century, the unregulated financial markets boomed, encouraging people to go into debt to buy stocks, and when an economic boom went bust, the Great Depression ensued. FDR’s New Deal was a response to the failure of markets to protect people that led to the government taking on the responsibility of preventing, or at least moderating, economic dislocations, regulating the financial and banking systems, providing jobs as an employee of last resort, and establishing a social security system to protect the elderly and disabled Americans. The missing link in these efforts was racial justice, which was largely overlooked for political reasons. While FDR’s critics accused him of betraying capitalism, he in fact saved the market system from destroying itself.

Andrew Jackson rejected a strong national government as well as national investments such as in roadways as he sought to bring power to the people. This message was popular among the relatively prosperous farmers, small merchants, and others, who did recognize the role of government in creating this relative equality. Despite his anti-government sentiments, Jackson and his successors continued existing and started new government programs to expand the economy. Abraham Lincoln, elected by anti-slavery voters, is best known for fighting the Civil War and eliminating slavery, but he also returned the federal government to more visible efforts to promote economic development and in the process committed the country to building a middle class. It was Lincoln’s idea that all Americans should have a fair chance in life. A key part of this program was the expansion of public education.

The history of government presents six lessons. Government has been crucial to building a nation truer to our nation, but it has taken both government and markets to do this. Government is big and complex in response to changes that were occurring in the economy which sent the country in directions inconsistent with its national values. Fourth, despite its size and complexity, government undertakes the same three essential functions it has undertaken over the history of the country. Government has been necessary to create, sustain, and expand markets, to protect people from economic loss and physical injury, and to maintain a social safety net for people mired in poverty due to age, health, or market conditions not of their doing. Finally, the pathway towards achieving America’s fundamental political values has been littered with mistakes and regrets. What makes us a nation has changed to encompass those who have been excluded and marginalized.

The United States Supreme Court, under the Constitution, is intended to be one of three coequal branches of government. Most recently, however, it has played an outsized role. Republican Senator Mitch McConnell from Kentucky has been the chief architect in pushing the federal judiciary in a more conservative direction and nowhere more so than on the United States Supreme Court. This chapter presents a view of how the Supreme Court is intended to operate and argues that today’s Court is exceedingly political. McConnell engineered the placement of three very conservative justices on the Court giving the Court its current 6-3 conservative majority. By reviewing key cases and arguing that the current Court is rejecting much of Supreme Court and constitutional law history, we demonstrate the Court’s rightward shift. As an ideal, we like the Court to be as politically neutral as possible, and we would like it to find and not make the law. However, as we discuss, given the role the Court plays in constitutional interpretation, it is inevitable that it will make the law and that politics will influence its decision-making. This chapter also argues that today’s Court may be the most politicized Court in our lifetimes, if not in our history.

The 1950s is known as a time of great prosperity as the gap between the richest and the poorest narrowed to its lowest point in history and as social mobility was at its highest. It was also a time in which an extraordinary array of commercial products entered our economy as the result of federal research and development programs. After America’s development of the atomic bomb, the Manhattan Project supported the transformation of the technology into more productive commercial uses. This role was repeated in the 1950s when the space race contributed to the federal development of the internet, together with a vast array of technologies such as cell phones and GPS services that we use today. However, there was a dark side to the 1950s. Racism was rampant and anxiety about nuclear disaster increased. In response to that anxiety, there were two movements in the United States. On the left there were movements for student democracy, civil rights, women’s rights, and the like. On the right, a new style of economics was emerging with great allegiance to markets and a commitment to reduce the size of government. Once again, we see the tension between markets and government which remains with us.