The Supreme Court Review 2003.

Vol. 14 No.12 (December 2004), pp.976-980

THE SUPREME COURT REVIEW 2003, edited by Dennis J. Hutchinson, David A. Strauss, and Geoffrey R. Stone. Chicago: The University of Chicago Press. 2004. 458 pgs. Cloth $60.00. ISBN 0-226-36320-1.

Reviewed by Frank Colucci, Department of Political Science, Purdue University Calumet. E-mail: coluccif@calumet.purdue.edu

During its October 2002 Term, the Supreme Court decided important cases involving homosexual conduct, affirmative action, free speech, civil rights law and the scope of federal power. The ten essays in this edition of THE SUPREME COURT REVIEW examine the reasoning of the Court’s opinions and explore legal, political and historical implications of these decisions. Taken as a whole, these articles demonstrate the continuing relevance of elite law-review scholarship to the political scientist studying public law.

Two articles address LAWRENCE v. TEXAS, which struck a law criminalizing same-sex sodomy and overruled BOWERS v. HARDWICK. Both essays applaud the ruling but downplay its rhetoric and minimize its larger political and legal consequences. Cass Sunstein compares the outcome of LAWRENCE to that of GRISWOLD v. CONNECTICUT (1965), finding both decisions rooted in the common law concept of desuetude. He argues that the Court struck Texas’s law not out of an expansive ideal of liberty but because it “had become hopelessly out of touch with existing social conventions” (p.27). This interpretation is consistent with his larger advocacy of judicial minimalism (Sunstein 1999).

Mary Anne Case takes a pessimistic view of LAWRENCE’s implications, focusing on indefinite and obscure language in the various opinions. She finds “ambiguities and dangers” even in the majority opinion (p.77), and concludes “LAWRENCE may not turn out to be as good as many now hope” (p.83). Both essays should be contrasted with other articles that take a broader reading of the opinion (see, for example, Barnett 2003) and in light of the decision by the Massachusetts Supreme Judicial Court (GOODRICH v. DEPARTMENT OF PUBLIC HEALTH (2003)) which cited LAWRENCE to support construing the equality provision of its state constitution to require same-sex marriage. Given the political and legal developments of the past year, it may not be too early to begin assessing Case’s predictions.

Two articles analyze major free speech cases. Lillian BeVier assesses the opinions in UNITED STATES v. AMERICAN LIBRARY ASSOCIATION, where a fractured Court upheld a congressional law requiring public libraries that receive federal funding to install software to filter sexual material harmful to minors. BeVier argues that this was “an easy case, that the decision was correct as an application of existing doctrine, and that the doctrine it applied is defensible and coherent” in its categorical approach and [*977] substantial deference to legislative judgment (p.166). She defends the straightforward analysis of Justice Rehnquist’s plurality opinion; all other concurring and dissenting opinions “disregard well-trodden doctrinal paths in favor of their own preferred, and often idiosyncratic, methodologies” (p.184). BeVier finds these other opinions as expressing an “intellectual chaos” that is “profound and depressing” (p.195). Others may be encouraged that the growth of the Internet could force the Court to reconsider free speech doctrine, even if they disagree about what new direction to take.

Frederick Schauer uses VIRGINIA v. BLACK to assess the constitutional status of symbolic speech compared to conventional communication. He finds that the main opinions by O’Connor and Souter fail to address adequately the relationship between a speaker’s intent and a conventional understanding of speech as intimidating. He states that the Court never effectively solved the problem of what makes a threat a threat, a problem that arises from BRANDENBURG if not before. One may have hoped the Court would have used the anti-abortion poster case (PLANNED PARENTHOOD OF COLUMBIA/WILLAMETTE v. AMERICAN COALITION OF LIFE ACTIVISTS) to resolve this uncertainty, but Schauer implies that—given the result in BLACK—the Court would likely not have clarified a thing. Schauer persuasively argues that in many circumstances symbolic speech can be no less (or more) precise than linguistic communication, and concludes with a hope “for finally giving the idea of ‘symbolic’ speech the interment it so richly deserves” (p.230).

Two essays explore civil rights. Carolyn Frantz analyzes the decision in CHAVEZ v. MARTINEZ, which redefined the scope of the Fifth Amendment to protect only against compelled self-incrimination at trial. The Court also ruled, however, that a person who has testimony compelled from him can sue under substantive due process. Frantz considers this decision as constitutional “division of labor,” and she hopes CHAVEZ “might open a new debate about police interrogation” and about the cruelty of coerced confessions that are never used at trial (p.300).

George Rutherglen surveys the judicial and congressional history of Section 1981 of the Civil Rights Act of 1866, focusing on its changing relationships to the Fourteenth Amendment and to the state action doctrine. To Rutherglen, this history—from Reconstruction to JONES v. ALFRED H. MAYER CO. (1968) to the 1991 amendments—demonstrates a dialogue between the Court and Congress. He argues that court decisions “exercise a far more profound and pervasive influence over all of federal law, by articulating principles that find expression in judicial interpretation of statutes and in their enactment and amendment by Congress” (p.352). While Rutherglen’s article is the only one not connected to a case from the 2002 Term, it does address several past Supreme Court cases and builds upon articles in earlier editions of THE SUPREME COURT REVIEW—including one by Gerhardt Casper (1969) that inspires the title.

Two other articles arise from cases about the extent and limit of federal power. U.S. Court of Appeals Judge Richard Posner writes on ELDRED [*978] v. ASHCROFT, which challenged the federal extension of copyright. He engages in an economic analysis of the incentives of the law and finds the argument of Ginsburg’s majority opinion unconvincing. Although the dissenters had the stronger “technical case,” Posner argues that upholding this imperfect law is superior to the alternative. Striking it would have opened a “Pandora’s box,” perhaps provoking states to enact their own copyright laws and produced much legal uncertainty Posner categorizes this decision as falling into his larger ideal of pragmatism, “dictated by what the Justices consider best for society rather than by legal reasoning in some distinctive sense” (p.162).

Suzanna Sherry explores why the Court found an abrogation of state sovereign immunity in NEVADA DEPARTMENT OF HUMAN RESOURCES v. HIBBS but not in previous cases involving Congressional power under Section 5 of the Fourteenth Amendment. She states that the majority opinion made the same kind of arguments and accepted the same type of evidence regarding the Family and Medical Leave Act that had been rejected in earlier cases. Sherry claims that “the more apparent the dissembling . . . the clearer the conclusion that the precedent itself is flawed,” and concludes that “HIBBS demonstrates the Court’s state sovereign immunity doctrine is a mistake” (p.256). While Sherry’s assessment of the larger doctrine may well be true, her essay more clearly demonstrates that Justice O’Connor “seems particularly inclined to maintain a façade of adhering to precedent rather than straightforwardly acknowledging its limitations or weaknesses” (p.266).

Two other essays look specifically at the actions of individual Justices. Kenneth Karst takes O’Connor as the direct subject of his article.. Karst focuses on cases involving abortion, religious establishment, discrimination based on race, sex and sexual orientation, and affirmative action. He reads her opinions throughout her tenure on the Court as embodying a substantive ideal of equal citizenship. (For an analysis of fellow swing Justice Anthony Kennedy from the same perspective, see Amar (1997)). Karst at times stretches to fit all of O’Connor’s votes and writings under the umbrella of equality, and his project seems more suited to a book manuscript than to an extended law review article. All in all, however, Karst’s piece is a welcome attempt to examine O’Connor’s jurisprudence as more than strategic (c.f., Maveety 1996, Van Sickel 1998), and it should inspire closer study of her larger vision of the Constitution.

A more focused attempt at judicial biography produces the volume’s most rewarding essay. John Jeffries reassesses Justice Lewis Powell’s opinion in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE (1978) in light of the 2003 decisions in the two University of Michigan affirmative action cases—GRATZ v. BOLLINGER and GRUTTER v. BOLLINGER. Jeffries, author of a 1994 biography of Powell, argues that the history of BAKKE “challenges the way many of us think about constitutional law” (p.2). Powell’s solo opinion rejected the clear options of color-blindness and compensatory racial preferences—each taken by four other Justices—and “crafted an approach designed both to permit affirmative action and to constrain it” (p.7). To accomplish this [*979] result, Powell created two cases where only one existed and devised the concept of “genuine diversity,” which Jeffries considers an “analytic incongruity” (p.23). Jeffries admits that Powell stands “rightly accused of subordinating legal craft to outcome and of discharging the powers of his office with a bet on the future.”

Yet Jeffries defends the opinion, stating that Powell’s achievement “came despite, not because of, the constraints of legal reasoning” (p.23, emphasis in original). Powell’s diversity rationale became “the only game in town,” and it would shape both popular and legal debate over the constitutionality of affirmative action, a clear example of the power of courts to shape culture. Powell’s opinion succeeded because it “bought time, and in that time a position that had once been seen as eccentric came to be seen as wise” (p.22). And the practical influence of Powell’s work should receive greater credit. “For the occasional great case where there is much at stake and little is clear,” Jeffries concludes, “there is no easy melding of legal craft and political insight. The judge must choose between them” (p.25). Jeffries’s conceptualization of the role of justices in great cases suggests a re-evaluation—though perhaps a less charitable one—of the Court’s explicit effort in PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY (1992) to “call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution” (505 U.S. 833 at 867).

Although the essays in this volume make significant contributions, some do exhibit the pathologies of law review scholarship. The shorter essays tend to be more effective in raising precise questions; longer pieces such as Case’s (75 pages) and Karst’s (100 pages) try to cover too much ground for one article. Several authors engage in personal digression as well as in speculation—sometimes “unbridled,” other times more restrained—about the unknown and perhaps unknowable personal motivation behind actions taken (or not taken) by individual Justices. Such personalization and speculation detracts from the merit of the authors’ larger arguments. These shortcomings of the other essays further highlight the achievement of Jeffries’s article, which concisely presents documentary evidence about Powell’s deliberations in BAKKE and thus offers more persuasive conclusions.

At their best, all of these essays succeed in taking what the justices say seriously and attempting to situate the Court’s opinions within a larger legal, political and historical context. THE SUPREME COURT REVIEW 2003 demonstrates how law review scholarship can escape the limits of the legal model—even if the Justices themselves still claim to abide by it.

REFERENCES:

Amar, Akhil. 1997. “Justice Kennedy and the Idea of Equality.” 28 PACIFIC LAW REVIEW 515.

Barnett, Randy. 2003. “Justice Kennedy’s Libertarian Revolution: LAWRENCE v. TEXAS.” 2002-2003 CATO SUPREME COURT REVIEW 21.

Casper, Gerhardt. 1969. “JONES v. MAYER: Clio Bemused [*980] and Confused Muse.” 1968 SUPREME COURT REVIEW 89.

Jeffries, John C. 1994. JUSTICE LEWIS F. POWELL, JR. New York: Maxwell Macmillan.

Maveety, Nancy. 1996. JUSTICE SANDRA DAY O’CONNOR: STRATEGIST ON THE SUPREME COURT. Lanham, Md.: Rowman and Littlefield.

Sunstein, Cass. 1999. ONE CASE AT A TIME : JUDICIAL MINIMALISM ON THE SUPREME COURT. Cambridge, Mass: Harvard University Press.

Van Sickel, Robert. 1998. NOT A PARTICULARLY DIFFERENT VOICE: THE JURISPRUDENCE OF SANDRA DAY O’CONNOR. New York: Peter Lang.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BRANDENBURG v. OHIO, 395 US 444 (1969).

CHAVEZ v. MARTINEZ, 123 S.CT. 1994 (2003).

ELDRED v. ASHCROFT, 123 S.CT. 769 (2003).

GOODRICH v. DEPARTMENT OF PUBLIC HEALTH, 440 Mass. 309 (2003).

GRATZ v. BOLLINGER, 123 S.CT. 2411 (2003).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

GRUTTER v. BOLLINGER, 123 S.CT. 2325 (2003).

JONES v. ALFRED H. MAYER CO., 392 U.S. 409 (1968).

LAWRENCE v. TEXAS, 123 S.CT. 2472 (2003).

NEVADA DEPARTMENT OF HUMAN RESOURCES v. HIBBS, 123 S.CT. 1972 (2003).

PLANNED PARENTHOOD OF COLUMBIA/WILLAMETTE v. AMERICAN COALITION OF LIFE ACTIVISTS, 290 F3d 1058 (9TH Cir 2002), cert denied 123 S.CT. 2637 (2003).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 483 (1978).

UNITED STATES v. AMERICAN LIBRARY ASSOCIATION, 123 S.CT. 2297 (2003).

VIRGINIA v. BLACK, 123 S.CT. 1536 (2003).

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