THE SUPREME COURT REVIEW: 2002

Vol. 13 No. 12 (December 2003)

THE SUPREME COURT REVIEW: 2002, edited by Dennis J. Hutchinson, David A. Strauss, and Geoffrey R. Stone. Chicago: The University of Chicago Press. 494 pgs. Cloth $54.00. ISBN 0-226-36319-8.

Reviewed by Richard L. Pacelle, Jr., Georgia Southern University. Email: rpacelle@georgiasouthern.edu

Having annually read selected chapters from THE SUPREME COURT REVIEW, I always assumed that it was a compilation of articles about important decisions from the most recent term. The opportunity to read the 2002 volume in its entirety suggests that is not the case. Three of the nine articles do not concern the recent term at all. One article and a significant part of another involve the Supreme Court only tangentially. Instead, it reads like a bound journal of recent, separate articles with no discernible theme. This is not to diminish this edition or the series or to demean its contributions.

Rather than lament what the volume is not, let's examine what it is-nine interesting articles that examine a variety of topics, like freedom of religion and search and seizure, that typically get a great deal of attention and issues, like patent law, that get decidedly less. The decisions range from a landmark decision (ZELMAN v. SIMMONS-HARRIS (2002)) to a case the authors concede will soon be relegated to a footnote (VERIZON COMMUNICATIONS v. FCC (2002)). This is not your mother's SUPREME COURT REVIEW. The standard fare doctrinal analyses have been replaced by essays that combine the best features of legal analysis with social science research and attention to the attitudinal and strategic models of decision making. The authors ground their doctrinal and case analysis within the legal, political, and institutional constraints the Court encounters. For the most part, the articles place particular Supreme Court decisions in context and examine how those decisions contributed to broader doctrinal development. What makes most of the articles particularly interesting is that the analysis does not stop with placing the decision in the doctrinal context. Rather, it gathers momentum to head in a number of different and provocative directions.

The nine articles can be placed into three different categories. Three articles focus on doctrine, a recent case or trend of cases and examine potential effects. Four articles explore the relationship between the Supreme Court and some other actor in its environment. The final two articles, written by two of the editors, involve historical analyses of the judiciary in times of war.

Mark Tushnet begins his analysis of ZELMAN with quotes from the forces supporting school vouchers comparing their victory to the NAACP's breakthrough in BROWN v. BOARD OF EDUCATION. Tushnet does not dispute the comparison, but argues that the similarities may be found not so much in the symbolic importance of the victory as in the traps that were laid in the wake of BROWN. His multi-layered examination of the case starts with the decision, moves to the questions that are certain to arise in future litigation, and then analyzes the evolving political and legal strategies of the participants. In the end, Tushnet concludes that, like BROWN, ZELMAN may not deliver what its proponents had hoped.

Janice Nadler's examination of bus searches takes a totally different tack. In UNITED STATES v. DRAYTON (2002), the Supreme Court ruled that the failure to advise passengers of their rights to refuse a search on a bus was not coercive. Nadler discusses the stated rationale for the decision-that passengers welcomed such searches, that it rewarded reasonable police behavior, and that granting the request was, in effect, voluntary consent. Marshalling the implications from an impressive battery of psychological tests and articles, Nadler suggests the evidence decisively refutes the Court's conclusion. She argues that "the Court's Fourth Amendment consent jurisprudence is either based on serious errors about human behavior and judgment, or else has devolved into a fiction of the crudest sort-a mere device for attaining the desired legal consequence" (p.156).

Elizabeth Garrett's article is a critique of the Supreme Court's capacity to understand political parties. She urges the Court to adopt judicial restraint when considering such issues. But her analysis begs the question of how parties could protect themselves. She appears to have invested too much in the belief that parties have a self-regulating mechanism. But does a party have the ability to "heal thyself?" The history of the major parties suggests this is rare and a short-term fix when it does occur. Rather it is something from the genus realignment, spawned from some external events, that is typically needed to alter the political universe. Judicial restraint would open the policy process in some ways, but it would also further expose parties to the forces that continue to weaken them. Garrett focuses on three decisions. In one (TASHJIAN v. CONNECTICUT (1986)), the state's dominant party tried to impose rules on the minority party. In another (CALIFORNIA DEMOCRATIC PARTY v. JONES (2000)), the Court considered whether parties could close their primaries to their own registered members. The implications of judicial restraint in either case would have been to weaken the parties still further. The Court's first major foray into defining political parties in the first half of the twentieth century came in the wake of the preferred position doctrine and the stated need to keep open political channels, and it seems that any analysis of the role of the judiciary in matters of political parties and elections needs to begin with those principles.

Four of the articles deal with the relationship between the Court and other institutional actors. Susan Klein and Jordan Steiker compare sentencing reform in capital and non-capital cases. In its decisions in capital cases, the Supreme Court has tried to reduce discrimination and disparity in sentencing. Congress tried to do the same thing in non-capital cases in passing the Federal Sentencing Act. The authors argue that the Court's decision in APPRENDI v. NEW JERSEY (2000) threatened the administrative model that the Federal Sentencing Commission had developed for noncapital cases. APPRENDI was a landmark decision that was short-circuited by HARRIS v. UNITED STATES (2002) when the Court appeared to recognize the decision was a referendum on the sentencing guidelines. However, the Court followed the logic of APPRENDI in a capital sentencing case, RING v. ARIZONA (2002). The authors conclude, as the Court apparently did, that fairness may be more important than equality in capital sentencing, even if the opposite is true for non-capital cases.

The relationship between the Court, Congress, and the Federal Communications Commission is the subject of the Lichtman and Picker article, in which the authors try to unpack the Court's interpretation of the Telecommunications Act of 1996. A key provision requires existing utilities to share their networks with new rivals, and, written in vague language, the act promises to spawn a great deal of litigation. Lichtman and Picker examine two of the first skirmishes. The Court's two decisions, AT&T v. IOWA UTILITIES BOARD (1999) and VERIZON COMMUNICATIONS v. FCC (2002) demonstrate varying degrees of judicial activism and restraint. The Court second-guessed the FCC and asked it to revisit its regulations, but was unwilling to expand the scope of the analysis to consider takings clause issues. The authors are critical of the Court's reticence, given the inevitability of the questions and their view that the justices are competent to assess the costs. The article is less about the Supreme Court and more about regulation in the industry, but it is a revealing look at the dynamics of the interactions between Congress, a rule making agency, and the judiciary.

John Duffy analyzes significant changes in patent law as a means of exploring the relationship between a generalist Supreme Court and an expert tribunal, the Federal Circuit. In FESTO CORP. v. SHOKETSU KINZOKU KOGYO KABUSHIKI CO. (2002), Duffy argues that the Supreme Court served notice that it intends to return to the patent law area. The Court used oral arguments and the decision to chastise the Federal Circuit. To Duffy, the decision was a symbol that the system worked. The Federal Circuit issued seven opinions totaling over 80 pages, "brimming" with citations, footnotes, and a menu of approaches to the law, a reflection of its expertise. The Supreme Court's opinion was brief, unanimous, and cited fewer than a dozen precedents, the product of a generalist institution. The Supreme Court was not the central actor in the dispute, rather it resolved a conflict between the Patents and Trademark Office (PTO) and the Federal Circuit. Without the need to attend to circuit conflicts, the Supreme Court can intervene when the policy issue is important. But in a sense, the conflict between the Federal Circuit and the PTO was the functional equivalent of a circuit conflict. Duffy elevates concerns with the individual case into a broader analysis of the supervisory role of the Supreme Court and its need to check the institutional biases that may develop in a specialized tribunal. But FESTO was an unusual decision in which the Federal Circuit overstepped its bounds, making it a difficult vehicle for explaining more general relationships between specialist and generalist courts.

Daniel Meltzer uses preemption and regulation cases to develop a provocative argument that the Supreme Court has adopted judicial passivity in dealing with Congress on sub-constitutional matters. He contends that the Court has sounded the theme that its power is and should be sharply limited in regulatory cases, finding that the Court increasingly argues that Congress has the primary, if not the exclusive, responsibility to flesh out federal regulations. Meltzer argues that this passivity deprives the nation of an important source of lawmaking, undermines coherence in the law, makes it more difficult for Congress to legislate, and represents a dramatic departure from Anglo-American legal tradition. But as Meltzer notes, the Court is inconsistent in its selective passivity. In preemption cases, the Court often renders the opposite decisions and does not revert to the passivity of the regulation cases. The author dismisses, perhaps too readily, the attitudes of result-oriented justices as the cause. The argument turns traditional notions of activism and restraint on their heads and argues that the capacity problems lie not with the courts, but with Congress-which has limited foresight and cannot monitor implementation. Finally, he argues that policymaking is a long-term iterative process, and Congress not only permits judicial intervention, but welcomes it.

The last two articles in the volume are authored by two of the editors and seem out of place. One concerns the rise of the Bad Tendency Test, and the other, Justice Robert Jackson's reaction to the internment of the Japanese in World War II. The former, authored by Geoffrey Stone, argues that the Espionage Act was a product of the times, but it was made worse by judicial development of the Bad Tendency Test. Dennis Hutchinson's article examines drafts that Justice Jackson wrote but did not release, showing the evolution of his thinking about presidential power and the Court's responsibility in wartime. These are interesting articles, but what is puzzling about these historical analyses of free speech and racial profiling in very difficult historical circumstances is why they were not tied to modern realities. Both deal with the role of the courts in an environment of hysteria. How easy it would have been to tie them to current racial profiling practices and to the Bush Administration's use of the Patriot Act and argument that a bad tendency test is sufficient justification for aggressively rooting out suspected terrorists and plots. One is tempted to blame the editors rather than the authors, but in this case, they are the same. Some bridge to the obvious questions that animate public debate today would have connected these two pieces together and tied them both to a volume that is curiously entitled THE SUPREME COURT REVIEW 2002.

CASE REFERENCES:

AT&T v. IOWA UTILITIES BOARD, 525 US 366 (1999).

APPRENDI v. NEW JERSEY, 530 US 466 (2000).

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

CALIFORNIA DEMOCRATIC PARTY v. JONES, 530 US 567 (2000).

FESTO CORP. v. SHOKETSU KINZOKU KOGYO KABUSHIKI CO., 122 S.Ct 1831 (2002).

HARRIS v. UNITED STATES, No. 00-10666 (2002).

RING v. ARIZONA, 536 US 584 (2002).

TASHJIAN v. CONNECTICUT, 479 U.S. 208 (1986).

UNITED STATES v. DRAYTON, 536 US 194 (2002).

VERIZON COMMUNICATIONS v. FCC, 535 US 467 (2002).

ZELMAN v. SIMMONS-HARRIS, 122 S.Ct. 2460 (2002).

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