Vol. 13 No. 7 (July 2003)
REHNQUIST JUSTICE: UNDERSTANDING THE COURT DYNAMIC by Earl M. Maltz
(Editor). Lawrence, KS: University Press of Kansas, 2003. 352 pp. Cloth $35.00. ISBN: 0‑7006‑1243‑2. Paper $19.95. ISBN: 0‑7006‑1244‑0.
Reviewed by Kevin Scott, Department of Political Science, Texas Tech University. Email: kevin.scott@ttu.edu .
As Mark Silverstein notes in the conclusion to REHNQUIST JUSTICE: UNDERSTANDING THE COURT DYNAMIC, encomia to the Rehnquist Court prove problematic because ever‑circling retirement rumors concerning the Chief Justice (or any of his colleagues) are yet to prove true. Nonetheless, attempts to assess the constitutional legacy of the nine justices who have served together since 1994 are certainly overdue, and this work is an important piece of the larger picture that will be drawn of the current justices’ contributions.
Each chapter devotes itself to the work of one of the nine justices, an approach that is simultaneously the book's greatest strength and its greatest limitation. The chapters all cover some of the major issues and assess the justices' respective contributions, as well as providing brief background sketches of each of the justices and the process by which they were nominated and confirmed. But each justice clearly has different interests in constitutional jurisprudence—to that extent, the chapters reflect the diversity of the justices and their interests.
Keith Whittington's chapter on William Rehnquist notes the transformation from dissent to majority that the Chief Justice has enjoyed during his long career. Whittington highlights the tension between Rehnquist's approach to individual rights cases and those presenting questions of governmental power. Whittington observes that Rehnquist "believes the Court is better able to play the role of a neutral arbiter and legal interpreter in the context of disputes over the structural features of the Constitution" (p.19). Why this is the case, however, does not clearly emerge from Whittington's essay. But Whittington's comparison of Rehnquist to Taney at the end of the chapter seems particularly apt. And, for Rehnquist, the transition from Associate to Chief Justice has been a successful one, at times moderating his conservatism where his colleagues remained unmoved.
Ralph Rossum's assessment of Antonin Scalia focuses on the justice’s desire to protect the textual integrity of the Constitution and the tradition that the document embodies. But Rossum rightly points out that Scalia is not as consistent as he might claim, as evidenced by his decisions on freedom of speech, acceptance of the incorporation doctrine, and his use of the Eleventh Amendment to shield states from liability to their own citizens. Rossum's chapter is an insightful exploration of the strengths and weaknesses of Scalia’s originalism—in particular, how that philosophy guides his separation‑of‑powers opinions, perhaps this justice's greatest contribution to the Rehnquist Court. On the other hand, Scalia has not been a major contributor to the Court's federalism jurisprudence. According to Rossum, even his majority opinion in PRINTZ saw the Brady Bill's commandeering of state officials more a violation of separation of powers than of federalism (p.55).
Mark Graber's chapter suggests fundamental contradictions in Clarence Thomas' originalist jurisprudence and observes that Justice Thomas' effect on his colleagues is so limited that he "writes for majorities only when he abandons originalist logic for more conventional doctrinal rhetoric" (p.70). Thomas' approach emerges largely in concurring and dissenting opinions, and his vision of constitutional law may mark this justice as having the least regard for history among the Supreme Court membership. Were Thomas to have his way, Graber observes, people might feel free to create white‑only political parties. Moreover, the scope of Congress' Commerce power would be severely restricted, because Thomas rejects the New Deal revolution in the Court's Commerce Clause jurisprudence. Indeed, Graber contends, the precedents Thomas would reject go much further back—to 1819!
Nancy Maveety's assessment of Justice O'Connor takes a slightly different tack than that of the other chapters. Maveety argues that the 2002 term, where O'Connor was the only person in the majority of all 13 of the Court's 5‑4 decisions, is not an aberration, and those observers who view her as the pivotal vote are, of course, on target. But to Maveety, O'Connor is not only the justice at the ideological center, but the justice responsible for crafting compromise on the Court. For O'Connor, "jurisprudential flexibility...is both a philosophy of judging and a strategy for collective bargaining" (p.115). Maveety describes how O'Connor uses her position at the center to round off the edges of some of the Court's more rule‑oriented members, pointing out her use of balancing tests on issues like abortion, freedom of religion, and affirmative action, where some of her colleagues would like to undo many of the Court's decisions of the past thirty years. The tradeoff for this reliance on accommodation and aversion to bright‑line rule making is that it may force judges to monitor the policy choices of elected officials more closely than they might prefer.
Earl Maltz's contribution, beyond the introductory chapter, is to examine the jurisprudence and role of Justice Anthony Kennedy. Indeed, the only disappointment of this chapter is its brevity. If Kennedy has had, as Maltz claims, "more influence on the Court's jurisprudence than any other justice of the Rehnquist era" (p.140)—a claim that is certainly defensible—then an analysis of his contributions should be as thorough as those of the other justices. That said, Maltz does an impressive job of summarizing Kennedy's most important efforts, demonstrating that the federalism revolution probably owes more to O'Connor and Kennedy than to Scalia and Thomas, as well as discussing Justice Kennedy's continued commitment to rights not enumerated in the Constitution. One issue that probably merits more attention is his role in developing the Rehnquist Court’s approach to the Free Exercise and Establishment Clauses (e.g. his opinion in LEE v. WEISMAN).
The author facing perhaps the greatest challenge is Ward Farnsworth, whose mission is to untangle the role Justice John Paul Stevens has played on the Court. Farnsworth is very much up to the task, and reminds us that the facility with which we label justices conservative and liberal might be frustrated by someone like Stevens, whose approach to judging is not easily pegged. Like many other jurists, Justice Stevens eschews bright‑line rule making. At the same time, his continued opposition to the Supreme Court's federalism decisions demonstrates his readiness to spar with a conservative majority on these issues. To Farnsworth, Stevens is the model of a common‑law judge, who assesses the facts surrounding individual cases and weighs the relative costs of creating inflexible rules against having judges play a prominent role in policy decisions. To Farnsworth, Stevens' apparent liberalism may stem from his reluctance to make absolute rules, compared to the conservative majority’s interest in doing so.
Thomas Keck paints David Souter as the bridge between the liberal justices (Stevens, Breyer, and Ginsburg) and the more moderate members this bloc needs to win cases. Indeed, Souter's first few terms on the Court demonstrated this potential. Opinions joined by Souter, Kennedy and O'Connor in 1992, LEE v. WEISMAN and PLANNED PARENTHOOD v. CASEY, could have established a locus of power for the ensuing decade. But Souter has proven to be more reliably a member of the liberal wing than a justice who frequently sides with Justices Kennedy and O'Connor. Keck highlights both tendencies in Souter's work. On the liberal side, he devotes attention to the Court's Free Exercise and Establishment Clause jurisprudence (both receive more coverage in this chapter than any other), as well as Souter's role in providing a counter‑weight to the Court's jurisprudence on affirmative action, federalism, and property rights. Keck makes a compelling case that Souter is a worthy successor to Brennan in his vision of the function of the Constitution and the Court as defenders of liberty. The evidence is somewhat mixed, however, regarding the notion that Souter courts, with some degree of success, centrists Kennedy and O'Connor.
Judith Baer's chapter on Ruth Bader Ginsburg focuses largely on the justice's contribution to gender discrimination litigation, which played a defining role in her pre-Court career. Ginsburg's approach has been one of recognizing the differences between men and women, which means that some distinctions between the two can be justified. Justice Ginsburg's critics may argue that men and women should be treated the same—different treatment inevitably leads to discrimination. In one respect, Ginsburg's approach may be attributable to what some observers consider setbacks in MILLER v. ALBRIGHT and INS v. NGUYEN, but in another, allowing men and women to be treated differently may lead to better treatment of pregnant women, for example. Baer nicely illustrates the strengths and weaknesses of both approaches from the Ginsburg perspective.
To Ken Kersch, Stephen Breyer embodies many movements in legal scholarship. He is a product of legal realism—but the version that developed in the wake of the civil rights movement. This means that Breyer generally prefers to defer to the expertise of the other branches; however, he also demonstrates commitment to the protection of civil rights, a commitment not always evident in earlier legal realists appointed to the Court. In most cases, though, Justice Breyer is sensitive to the changing needs of society, and he recognizes (no doubt to Justice Scalia's chagrin) that American governance evolves within a global context.
Perhaps influenced by the debate over the merits of "judicial minimalism" (Sunstein 1999), the contributors to this book make some of their greatest contributions when assessing the justices' relative desires to craft rules or to decide cases relying heavily on facts. The current Court certainly contains exemplars of both methods, and this book highlights the technique of each justice on this issue as nicely as they discuss the justices' specific doctrinal contributions. The only flaw with this approach is that the book's subtitle tends to prove a misnomer—this book is not as much about the Court's dynamic (by which I take to mean how the justices interact to produce decisions) as it is about its personalities. With the exception of Silverstein's conclusion, connecting the justices together as products of a selection process that has made uncontroversial appointments preferable to controversial ones, none of the chapters focus on how the justices might be tied together. In the end, this is a limitation but not a weakness—individual personalities can be obscured by the nature of the Court's collective decision‑making process and the justices' traditional avoidance of the spotlight. REHNQUIST JUSTICE represents an invaluable contribution to our understanding of how the Court works and resolves a deficit one might find in other assessments of the Rehnquist Court. Here the justices are treated as individuals, which will no doubt ensure the relevance of its work to future scholarship.
REFERENCES:
Sunstein, Cass. 1999. ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT. Cambridge: Harvard University Press.
CASE REFERENCES:
INS v. NGUYEN, 533 US 53 (2001).
LEE v. WEISMAN, 505 US 577 (1992).
MILLER v. ALBRIGHT 523 US 420 (1998).
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 US 833 (1992).
PRINTZ v. NEW YORK, 521 US 98 (1997).
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Copyright 2003 by the author, Kevin M. Scott.