Vol. 11 No. 2 (February 2001) pp. 77-79.

"THE SUPREMES": ESSAYS ON THE CURRENT JUSTICES OF THE SUPREME COURT OF THE UNITED STATES by Barbara A. Perry. New York: Peter Lang Publishing, 1999. 159 pp. Paper $24.95. ISBN: 0-8204-4046-9.

Reviewed by Joyce A. Baugh, Department of Political Science, Central Michigan University.

In the acknowledgments to "THE SUPREMES," Barbara A. Perry describes her fascination with the Supreme Court and constitutional law as stemming from her experience in an undergraduate constitutional history course. It is clear throughout this book that Professor Perry hopes to stimulate a similar reaction in today's students. She has written a brief, engaging description of the nine justices currently serving on the high court. Drawing upon her firsthand interactions with the justices, including a year as a Judicial Fellow at the Court, journalistic accounts, academic writings, Court opinions, and other sources, Perry does an excellent job portraying each of the justices from both personal and professional perspectives.

An introductory chapter provides a brief overview of the justices that focuses on their 1) educational and socioeconomic backgrounds, 2) political, governmental, and judicial experience, 3) ideological perspectives, and 4) general impact on issues concerning civil rights and liberties, federalism, and legislative and executive powers. It is obvious that Perry is impressed with the justices' educational backgrounds. She emphasizes both their undergraduate studies and their legal training at the nation's most elite institutions. The current justices also had considerable judicial experience before their appointments to the high court, as the majority of them had served previously on the lower federal bench or in state courts. Although the justices by and large are from middle and upper class backgrounds and hence do not reflect the composition of American society, Perry stresses that this Court is "far more 'representative' than in the past" (p. 3). Her overview is helpful in two ways. First, it prepares the reader for the essays that follow on the specific justices. Second, it helps the reader to understand that while the justices are unique individuals, they do not function simply as individual decision makers but also as members of a collegial body.

Professor Perry devotes a separate chapter to each of the nine justices, beginning with Chief Justice Rehnquist and following in order of seniority. In each of these chapters, she offers detailed biographical information. She informs readers about the justices' family backgrounds, their formative childhood experiences, and their educational backgrounds from elementary school through completion of their law degrees. Also important are descriptions of the justices' career paths before they ascended to the high court, the circumstances surrounding their nominations, and their subsequent confirmation hearings. After providing this background information, Perry characterizes each justice's judicial philosophy and voting record, including

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highlights of their written opinions in selected cases.

Throughout the book, Perry provides anecdotes that capture the distinct personalities of each of the justices. Although most of these stories are probably not new to scholars and Court experts, they will be interesting to undergraduate students and to laypersons. They will be fascinated by some of the tidbits and ironies, including O'Connor's and Rehnquist's brief courtship while the two were at Stanford Law School, Kenneth Starr's role in O'Connor's nomination, Breyer's swearing-in of Souter to the First Circuit Court of Appeals, and the close friendship between the moderately liberal Ginsburg and "archconservative" Scalia. Most importantly, Perry's focus on the justices' personal as well as professional lives is critically important in demythologizing the Court and the human beings who serve on it.

Overall this is a very good book, but a few minor criticisms need attention. For example, in the chapter on Rehnquist, Perry appears a little too eager to defend him against his critics. In discussing his confirmation to become Chief Justice, she writes, "Critics scoured his personal and professional record for any shred of evidence that might derail the nomination" (p. 20). The tone of her discussion allows the reader to infer that the concerns and criticisms expressed by his opponents were completely unfounded or off-target. Similarly, Perry downplays the controversy surrounding Thomas's confirmation hearings before the Anita Hill situation erupted. Although noting that the Senate Judiciary Committee vote on confirmation was 7-7, Perry refers to his initial appearance before the Committee as an "undistinguished hearing" (p. 107). This characterization is curious, given the intense and sometimes contentious questioning from several Senators as well as the extensive testimony from groups opposing Thomas's confirmation. Again, her description could lead uninformed readers to assume that there was little problem with Thomas's confirmation until Anita Hill came forward with her allegations of sexual harassment.

A few other concerns involve Perry's brief analyses of the justices' votes and opinions in particular areas or cases. At times her characterization of the justices' positions appears to be incomplete. For example, she uses Stevens's record on civil rights issues involving race to illustrate his case-by-case approach to constitutional and statutory interpretation, with particular emphasis on his positions in affirmative action cases. She notes his adamant opposition to affirmative action in early cases like REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE (1978) and FULLILOVE v. KLUTZNICK (1980), and she indicates that in the 1986-87 term he voted "to support affirmative-action programs then under attack by the Reagan administration" (p. 33). She does not, however, adequately explain the reasons that Stevens's votes appear to be inconsistent. It would be helpful for the reader to know that the particular fact patterns influenced his positions in these cases, particularly the UNITED STATES v. PARADISE (1987) ruling. Later, she acknowledges the influence of fact patterns on Stevens in her discussion of his vote in METRO BROADCASTING v. FCC (1990).

In reporting on O'Connor's important role in abortion policy in general and PLANNED PARENTHOOD v. CASEY (1992) in particular, it would have been helpful to point out that her refusal to overturn ROE notwithstanding, she generally has voted to uphold restrictive

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regulations that have made it increasingly difficult for women to obtain abortions. In addition, her "undue burden" standard for examining abortion regulations, which has supplanted ROE's trimester framework, increases the likelihood that most abortion regulations will withstand the Court's scrutiny. On another note, Perry's discussion of Scalia's majority opinion in EMPLOYMENT DIVISION OF OREGON v. SMITH (1990) neglects to mention that this was a major departure from over 25 years of longstanding precedent in Free Exercise jurisprudence. It also was surprising that in pointing to Kennedy's membership in the trio that uphold ROE in the 1992 CASEY decision, she failed to note that three years earlier in WEBSTER v. REPRODUCTIVE HEALTH SERVICES, Kennedy had joined Rehnquist's plurality opinion which severely criticized and undercut ROE. Kennedy's position in CASEY was striking in large part because of this. It was also a bit curious that in discussing Thomas's position on affirmative action in ADARAND CONSTRUCTORS v. PENA (1995), Perry chose to cite his joining of Scalia's opinion rather than Thomas's own equally strident concurrence.

These few criticisms of the book, however, do not detract from its overall quality. It is well-organized and written in a lively and engaging style. In addition to the sources cited at the end of each chapter, Professor Perry provides an extensive bibliography to assist readers in further exploration of the justices and their work on the Court. This book will prove useful as a supplemental reading for undergraduate courses in judicial process and constitutional law and as a primary text in a special topics course on the Supreme Court. It is also very accessible to lay readers who are interested in public affairs but who have little specific knowledge about the Supreme Court. This is especially true, given the Court's prominent role in determining the outcome of the 2000 presidential election.

Finally, one cannot help but speculate about the impact of the decision in BUSH v. GORE (2000) on Perry's description of the justices' views on federalism. In light of their positions in this case, it would be interesting to see whether she would continue to characterize Rehnquist and the other conservatives as strong advocates of states' rights.

REFERENCES:

ADARAND CONSTRUCTORS v. PENA, 515 U.S. 200 (1995).

EMPLOYMENT DIVISION v. SMITH, 494 U.S. 872 (1990).

FULLILOVE v. KLUTZNICK, 448 U.S. 448 (1980).

METRO BROADCASTING, INC. v. FCC, 497 U.S. 547 (990)

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

UNITED STATES v. PARADISE, 480 U.S. 149 (1987).

WEBSTER v. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989).


Copyright 2001 by the author, Joyce A. Baugh