Vol. 11 No. 1 (January 2001) pp. 17-19.

MORALITY IMPOSED: THE REHNQUIST COURT AND LIBERTY IN AMERICA by Stephen E.Gottlieb. New York: New York University Press, 2000. 342 pp. Cloth $40.00. ISBN: 0-8147-3128-7.

Reviewed by Martin Edelman, Department of Political Science, The University at Albany (SUNY).

A funny thing happened on the way to my writing the review of Stephen E. Gottlieb's MORALITY IMPOSED -- the U. S. Supreme Court decided BUSH v. GORE (2000). For the first time in American history, the Supreme Court selected the President rather than the President selecting the members of the Supreme Court. Nothing in the Court's annals, or the scholarly literature, better illustrates the author's argument. The conservative members of the Rehnquist Court, according to Stephen Gottlieb, have rejected the basic principles of previous post-1937 Courts whose members created a sustained individual rights jurisprudence. The current majority has substituted their own conceptions of moral character for those fundamental principles.

Gottlieb's argument develops in both a conventional and unconventional manner. He approaches each of the nine justices of the current Court by first summarizing their personal and professional backgrounds and then closely examining the decisions they have authored or joined. However, rather than seeking to explain their positions in conventional public law categories, Gottlieb seeks to analyze them in philosophical and moral categories: "whatever else may steer their opinions, there is a division among the justices that they do not discuss but that is so basic to their thought that it comes out as a set of implicit assumptions that drive a very large proportion of what they do" (pp. xiv-xv).

For Gottlieb, then, all the arguments about the proper way to interpret Constitution and about the constitutionally correct way to understand federalism, separation of powers, free speech, abortion (privacy), etc., are essentially smoke screens. Therefore, he does not spend much time examining judicial rhetoric. He is more concerned with the actual decisions and their consequences. Gottlieb is interested in a justice's opinions only insofar as they may provide clues about the type of society that justice is seeking to shape through his/her decisions. Gottlieb accepts as a given that the justices function as conscious policymakers.

Although he accepts their premise, Gottlieb is unhappy with the liberal-conservative dichotomies utilized by social scientists employing attitudinal models. Those models are not philosophically nuanced enough. They don't capture the differences within the "conservative" and "liberal" camps. Only a detailed exploration of each justice's philosophical premises, he insists, can account for both the similarities and differences on the Rehnquist Court.

In Gottlieb's account, what unites the five conservative justices - Chief Justice William Rehnquist and Associate Justices

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Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas-is their rejection of two major assumptions of the Anglo-American tradition since the 18th Century. One is freedom of conscience (or moral autonomy)-the belief that people are entitled to make their own moral choices unless they would injure others. The other is that people and institutions should avoid unnecessarily harming others. "For the conservative justices, moral autonomy is more aptly called relativism, and they reject it categorically." (p. 25). Rejecting moral relativism gives the conservative justices the freedom to define right and wrong, and those definitions become, in Gottlieb's account, more important than a concern for avoiding harm.

The four "liberals" on the Court - Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Steven Breyer - still operate, for one reason or another, from within the tradition. Professor Gottlieb is at great pains to indicate that the tradition itself has at least two distinct, sometimes conflicting sources. Western liberal thought attaches an almost sacrosanct quality to each human being. The utilitarian strand emphasizes the importance of maximizing pleasure and minimizing pain for all members of society. Either alone or in combination, post-New Deal justices utilized liberalism and utilitarianism to interpret the Constitution so as to provide increasingly greater protections for individual rights.

That is why, according to Gottlieb, CAROLENE PRODUCTS (1938), most especially including footnote 4, became the paradigm case in American constitutional law until the Rehnquist Court. Because it stressed the need for judicial protection of human rights within a system of electorally accountable policymakers, CAROLENE PRODUCTS served as the rallying point for judicial compromises favoring individual claims against the government. The paradigm's ambiguity committed no justice to any position other than recognizing that in a particular case the particular right asserted was more important than the opposing governmental interest. In other cases, a justice could always distinguish the circumstances. The CAROLENE PRODUCTS paradigm often served as the lowest common denominator for a judicial majority wishing to uphold individual rights. [See, for example, the per curiam opinion of the Court in the PENTAGON PAPERS CASE (1971).]

As illustrated by the per curiam opinion in BUSH v. GORE (2000), the Rehnquist Court majority has jettisoned the CAROLENE PRODUCTS paradigm. Those justices no longer see the Court as the ultimate protector of the individual right to vote. In REYNOLDS v. SIMS (1964), Chief Justice Warren's opinion for the Court saw "the right to vote freely for the candidate of one's choice [as] the essence of a democratic society," and recognized that it is "equally unquestionable that the right to have one's vote counted is as open to [judicial] protection as the right to put the ballot in the box." The Rehnquist Court majority elevated the need to meet a "safe harbor" deadline over "the political franchise of voting," "the fundamental political right because preservative of all rights" in a democracy. YICK WO v. HOPKINS (1886).

As indicated above, Professor Gottlieb locates the paradigm shift in the majority's conservative and moral and political philosophies. The bulk of the book contains his efforts to spell out the differences and similarities in the justices' positions. It is a fascinating, if complex,

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presentation, for the members of the Court do not fit any single conservative tradition, nor are they committed to any consistent set of values. What unites the majority's efforts to remake American constitutional law is their rejection of "liberal tolerance, realism, and functionalism" (p. 197) and their concern to entrench conservative values.

This conclusion is based upon Gottlieb's detailed analysis. The justices have never said it. In fact Gottlieb claims, "they can't say it" (p. 197). It is based upon Gottlieb's sophisticated imputation of judicial motives and policy concerns from his examination of the likely consequences of Court decisions and his impressive knowledge of political and legal philosophy. The linkages made by the author may not persuade the reader. Until BUSH v. GORE came down, that is why I remained skeptical about how much was to be gained by abandoning more conventional doctrinal analysis.

Yet, the reader cannot fail to be rewarded by close attention to MORALITY IMPOSED. Whether the reader is persuaded by Gottlieb's imputations or not, he or she will gain innumerable insights into legal and political philosophy as well as American constitutional law. It is, for example, by far the best work to explain why, in the context of the American legal and political tradition, the Rehnquist Court "liberals" are really moderates. They only appear as liberals when contrasted to the radical conservatism of the likes of Rehnquist, Scalia and Thomas. In short, Gottlieb illuminates all that he covers.

REFERENCES

BUSH v. GORE, 531 U.S. ___ (2000).

NEW YORK TIMES CO. v. UNITED STATES (PENTAGON PAPERS CASE), 403 U.S. 670 (1971).

REYNOLDS v. SIMS, 337 U.S. 533 (1964).

UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938).

YICK WO v. HOPKINS, 118 U.S. 356 (1886).