Vol. 2 No. 8 (August, 1992) pp. 109-110

TURNING RIGHT: THE MAKING OF THE REHNQUIST SUPREME COURT by David S. Savage. New York: John Wiley & Sons, Inc. 1992 473 pp. Cloth $22.95.

Reviewed by Saul Brenner, Department of Political Science, University of North Carolina, Charlotte.

The timing of this book is unfortunate. A year ago, when this book was written, we would want to hear the story of why the Supreme Court turned to the Right. Now, however, after LEE V WEISMAN and after PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V CASEY, in which justices O'Connor, Kennedy, and Souter formed a center coalition and dominated the Court, it is problematic whether the Court has turned to the Right. See generally Dworkin NY REVIEW OF BOOKS, August 13, 1992.

David Savage, who covers the Court for the LOS ANGELES TIMES, nevertheless, has written a good and clever book. He summarizes many of the salient cases during the Rehnquist Court era until the end of the October 1990 term (which he mistakenly calls the 1990-1991 term). Savage presents a portrait of each of the people nominated by the President and tells us the story of their appointments, including the events at the Senate Judiciary Committee hearings, if such hearings took place. Regarding the cases, he tells us about the strategies of the justices and extensively covers oral arguments. Both the strategy and oral argument material is new. Most of the other material can be found in other sources.

This book is based, in part, on personal interviews with the justices and their law clerks. In some respects it is the successor to THE BRETHREN. But it is more professional and more restrained than the latter book. It contains less gossip as well.

Savage does not explain the justices' voting behavior in simple liberal-conservative terms. Although he recognizes these tendencies, he also indicates that the justices are influenced by their role perceptions and by their commitments to certain legal positions. He tells us, for example, that Justice Stevens always voted against religion whether the religious position was being supported by an established religious group or by a minority religion. He, of course, does not offer any systematic evidence in support of this conclusion. Savage is not, after all, a social scientist. The book is well written, informative, usually accurate, at times dramatic, and always fun to read. I couldn't put it down.

I once told the late and wise George Kaufmann who wrote a large number of briefs in Supreme Court cases (one of his briefs is mentioned on p. 160), that the most profound analysis of Supreme Court decisions was presented by philosophers; not by law professors. He replied, "I don't know who is the most profound, but I do know who is the least profound - political scientists." As a political scientist (and, therefore, at risk of being superficial), here are some of the mistakes or misinterpretations I believe that were made by Savage.

1. p. 10. Savage states that "Through 14 years as an associate justice, he [Rehnquist] ...never deviated from the conservative side." Segal and Spaeth (JUDICATURE, August-September 1989) tell us that when Rehnquist was an associate justice he voted in favor of the civil liberties position 19.6% of the time and in favor of the economic liberal position 40.6% of the time.

2. p. 11. Savage states that "The Court ... proudly ignores the public's reaction once it has decided." he relationship between the Supreme Court and public opinion is not that simple. At times, the Court pays a great deal of attention to public opinion and, at times, it ignores it. See generally Caldiera in THE AMERICAN COURTS edited by Gates and Johnson (1991).

3. p. 13. He states that "The Supreme Court does not try cases." How, then, can we explain MARBURY V MADISON and the other

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original jurisdiction cases?

4. p. 27. Savage states that the authors of the 14th amendment said that "the privileges and immunities" clause includes all the Bill of Rights. I'm not sure who are the "authors" of the 14th amendment. In any event, this is a curious statement because throughout this book Savage criticizes original intent arguments.

5. p. 45. He states that the Court used the "due process" clause of the 14th amendment to incorporate ALL the provisions of the Bill of Rights. The correct statement is that it used this clause to incorporate MOST of the provisions of the Bill of Rights. The states, for example, are still not required to employ a grand jury indictment, despite the Fifth Amendment.

6. pp 142-143. He criticizes Bork's defense of the BROWN case. But Bork's argument regarding BROWN is much more subtle than that stated here. See Bork THE TEMPTING OF AMERICA (1990) pp 74-84.

7. p. 145. Savage states that the Connecticut anti-birth control law was unenforced in that state. Justice Douglas disagrees. See GRISWOLD V CONNECTICUT.

8. p. 146. He states, "For millions of Americans who believe that human life begins at conception, the ROE decision was morally wrong and a constitutional abomination." It is logically possible to believe that human life beings at conception and still defend the ROE decision. One can believe, for example, that even though the fetus has the right to life, the woman does not have the obligation to carry her for nine months. See Judith Jarvis Thomson, PHILOSOPHY AND PUBLIC AFFAIRS (1971).

9. p. 220. Throughout this book Savage looks upon "original intent", in part, in terms of the practices at the time the specific constitutional provision was adopted. Bork would, instead, focus on the public understanding of the language of the provisions. Here, although the "equal protection clause" might have been intended to apply to Blacks only, the public understanding of the language can reasonably be interpreted to apply to all groups that are denied the equal protection of the laws.

10. p. 261. When life begins, contrary to Savage, is not a scientific question; it is a philosophical one.

11. p. 372. It is not true that the federal government got a free hand to regulate the economy after 1937 because Roosevelt was able to replace the "nine old men." Rather, the federal government got a free hand because two of the justices (Hughes and Roberts) switched sides. As a consequence, Roosevelt had a 5-4 majority in support of his New Deal legislation.

12. p. 390. The "cert pool" procedure usually involves a law clerk of each justice "marking up" the petitions (i.e., indicating whether he agrees with the recommendation of the cert pool clerk or not).

13. p. 452. Savage states that until the Carolene Products case of 1938 "the Bill of Rights and the Fourteenth Amendment's guarantee of equal treatment under law had been little more than a set of paper platitudes." This is too strong. A number of pre-1937 Supreme Court decisions, for example, upheld the rights of Black criminal defendants. See POWELL V ALABAMA (1932), NORRIS V ALABAMA (1935), and BROWN V MISSISSIPPI (1936).