Vol. 16 No.1 (January 2006), pp.11-16

           

A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW, by Mark Tushnet.  New York: W.W. Norton, 2005.  416pp. Hardcover. $27.95. ISBN: 0-393-05868-9.  Paper (2006). $15.95. ISBN: 0-393-32757-4.

 

Reviewed by Donald P. Kommers, Joseph and Elizabeth Robbie Professor of Political Science and Professor of Law, Notre Dame Law School, University of Notre Dame

           

In A COURT DIVIDED, Mark Tushnet sets out to describe the divisions on the Rehnquist Court and to speculate what these divisions might mean for the future.  Its main claim is that the Supreme Court’s liberal-conservative divide under Chief Justice Rehnquist has been overlaid by a more important rupture between what he calls “modern” and “traditional” Republicans, a schism, he argues, that mirrors the split among Republicans in the country at large. The modern Republicans include the late Chief Justice Rehnquist and Justices Scalia and Thomas, whereas Justices Stevens, Souter, Kennedy, and O’Connor fall into the traditional camp. The modernists represent the Goldwater-Reagan branch of the Republican Party – described as latter-day “movement” Republicans – based mainly in the southwest, whereas the traditionalists parallel the northeastern, liberal wing of the Party, although on some issues, as Tushnet notes, Kennedy defies easy categorization. Stevens, by contrast, although described as a “northeastern” Republican, seems more at ease with the Court’s Democratic appointees than with his “Republican” colleagues. In the author’s reckoning, finally, modern and traditional Republicans coincide largely with what he calls, respectively, “social” and “economic” conservatives.    

 

These broad categories are anything but tidy, however.  As explanatory devices, the labels “modern” and “traditional” apply, if at all, to a tiny fraction of the Court’s decisions and these are mainly high profile constitutional cases on abortion, gay rights, and some religious liberty issues where so-called “movement” conservatives have dissented from the views of their more “libertarian” colleagues. In the Supreme Court’s most recent term (2004), for example, the designated traditional Republicans split off from their modern counterparts to form the 5-4 majority in only 6 of 18 decisions, but in the overwhelming majority of non-unanimous cases – 49 out of 79 – traditional and modern Republicans were to be found voting together both in majority and dissenting opinions.  But even as the author italicizes the relevance of the distinction between kinds of Republicans on the Supreme Court – and in the country – he simultaneously disdains, rightfully, the all-too common tendency of scholars and journalists to shoehorn the justices into fixed ideological cubicles or to label decisional outcomes simplistically as “conservative” or “liberal.” He also questions, again rightfully, the utility of the oft-drawn distinction between judicial “activism” and “restraint,” telling his audience that today “[e]veryone [of the justices] is a judicial activist.” [*12]

 

As for his audience, Tushnet has written A COURT DIVIDED for the general reader. Accordingly, there is very little in this book’s account of the Rehnquist Court that the constitutional specialist would find surprising, exceptional, or original.  (If the book were written for constitutional scholars, it would have dealt with far more than a handful of “hot-button” constitutional cases.)  As the author notes early on, this book grows out of his “frustration with most of what constitutional scholars have written for readers who [are not] specialists in constitutional law.” It seeks mainly  to explain the divisions on the Rehnquist Court rather than to “cheer” or “boo” – the author’s words  – decisional outcomes, whether one would wish to describe them  as  “liberal” or “conservative,” or even as “right” or “wrong.”  The author allows what political scientists discovered long ago, namely, that the Supreme Court follows the general election returns. More specifically, the division within the Rehnquist Court is said to reflect the uneasy alliance within the country’s governing coalition of modern and traditional Republicans, more so, it would appear, than any explanation rooted in ideas, moral principles, or interpretive approaches to constitutional meaning.

 

Division and fragmentation among the justices are leading themes in much popular writing on the Supreme Court, the kind of writing that revels in explaining judicial outcomes by reference to the backgrounds, experiences, and even the foibles and quirks of particular justices.  A COURT DIVIDED fits squarely into this genre. In fact, the biographies of the justices as well as their relationships to one another, including their writing styles, loom large in this account of the Court’s internal divisions.  So it is no surprise to find the chapters of this book organized around sensational titles such as “Clarence Thomas’s Constitution” (Chapter 3); Ruth Bader Ginsburg’s Equal Protection Clause” (Chapter 4); “Anthony Kennedy and Gay Rights” (Chapter 5); “Antonin Scalia’s First Amendment” (Chapter 6); “The Religious Right’s Agenda: Symbols and Money” (Chapter 7); and “Big Business’s Constitution” (Chapter 12).  Related chapters on abortion (Chapter 8), affirmative action (Chapter 9), federalism (Chapter 10), and property rights (Chapter 11) are equally scintillating for their stress on political divisions within the Court.

 

After reading these chapters, the general reader may well wonder whether constitutional law is little more than politics by a grander name.  There is, of course, something to be said for the view that law is a subset of politics if “politics” is understood in the Aristotelian sense of providing for the common good and maximizing human happiness in accord with reason.  (We live, however, in an age of rational calculation and self-indulgent subjectivism.) But when, for example, four or more of the nine justices stake out their own largely personal views about the meaning, say, of the Free Exercise or the Establishment Clause, and do so in language more querulous than persuasive, not to mention their shifting views over time, what possibly could be going on here – from the perspective of general readers – except political decision-making of the most blatant – and embarrassing – kind. One may legitimately wonder whether the rule of law, its clarity and predictability [*13] in particular, is advanced or hindered by the fiercely personalized jurisprudence featured in this book.

 

A COURT DIVIDED is nonetheless a delectable reading experience.  It will appeal to inquisitive readers who relish spicy biographical tidbits interlaced with serious – and razor-sharp – constitutional commentary.   Mark Tushnet is one of this country’s leading constitutional scholars and what he has – and has had – to say about the Supreme Court, usually in sparkling prose, is almost always, and in equal measure, insightful and provocative. Each of the topical chapters contain incisive restatements of the Court’s jurisprudence prior to the Rehnquist Court’s emergence. The author’s analysis of later decisions under Chief Justice Rehnquist’s leadership is equally pungent – and accessible to the general reader – although several chapters are unpersuasive in tracing the main political division on the Rehnquist Court to the postulated divide between modern and traditional Republicans. Beyond the inclusion of useful biographical information on each justice who has served on the Rehnquist Court, the general reader gets a vivid and sometimes disquieting portrait of the interpersonal relationships among the justices, including allegedly snappish behavior that has soured the bond of friendship between particular members of the Court, even to the extent, in the author’s account, of influencing judicial outcomes.

 

Justice Scalia turns out to be the villain in this judicial drama.  Scalia is the object of more potshots than any other justice, probably because he is in fact the most colorful person on the Court as well as its sharpest wordsmith.  Several of the volleys are unflattering, quotable, and culled from secondary sources infested with the vice of rumor and chitchat. The author himself refers to Scalia’s “failure of good judgment” and his tendency to engage in the “sound bite [reasoning] style of Crossfire.” He also allows – some readers will say gratuitously – that “Antonin Scalia isn’t as smart as he thinks he is.”  Many informed observers, among them Justice Scalia’s former clerks, would dissent from these hostile “verdicts.”  Nor would they find instructive or illuminating the highly speculative “aside,” drawn from a questionable secondary source, that the key to “Scalia’s affection for rules rather than standards” is “said to be the catechism as taught in the Catholic schools Scalia attended, supplemented by dinner table conversation with his father.” Nor would all impartial observers brand Scalia’s dissents as “venomous.”  Of course, this is an easy game to play.  Blistering dissents reviling the logic of majority opinions have been scrawled by liberals as well as conservatives. (Consider, for example, Justice Blackmun’s emotion-laden partial dissent in WEBSTER v. REPRODUCTIVE HEALTH SERVICES (1989) or Justice Brennan’s withering sideswipes at the majority opinion in NATIONAL LEAGUE OF CITIES v. USERY (1976). A truly rounded-out  portrait of Justice Scalia’s intellectual contributions would  embrace an analysis of his strong dissents and concurrences in cases involving separation of powers, religious liberty, criminal procedure, and political patronage, most of which are barely mentioned in this book.

    

Although A COURT DIVIDED tries not [*14] to “cheer” or “boo” but merely explain decisional outcomes on the Rehnquist Court, the author’s personal views strongly emerge in some chapters.  Describing the church-state cases in terms of an “agenda,” for example, implies that those opposed to the religious right do not have an agenda of their own.  For most general readers, the linguistically loaded terms “religious right” conjure up an uncomplimentary image of religious conservatives hell-bent on imposing a theocracy on America.  But one need not be conservative or religious to conclude that cases such as LEE v. WEISMAN (1992) and WALLACE v. JAFFREE (1985) have inappropriately curtailed the rights of religiously minded people in the United States. Similarly, commentators unaffiliated with the “religious right” – whatever these terms really mean – would have every reason to defend decisions such as MITCHELL v. HELMS (2000) and ZELMAN v. SIMMONS-HARRIS (2002) as correctly decided, reflecting, as they do, the principle of equal justice under law.  Indeed, strong liberal arguments can be – and have been – marshaled in support of neutral statutes that do not discriminate against students merely because their parents have chosen to send them to religious schools.

 

Justice Scalia takes still another beating in the chapter, “Anthony Kennedy and Gay Rights,” particularly in the discussion of LAWRENCE v. TEXAS (2003), in which Kennedy’s opinion is described as “robust” and Scalia’s dissent as “splenetic,” although Kennedy himself takes a hit for his “pomposity” – that is, for his admittedly exalted rhetoric about the mystery of human life – which, unlike Scalia’s spleen, turns out to be “mostly harmless.” In an otherwise equally piquant chapter on the Court’s abortion jurisprudence, Scalia’s bitter dissents against the retention of ROE v. WADE (1973) are attributed to his moral opposition, as a “devout Catholic,” to abortion.  Scalia’s dissents, however – in both the gay rights and abortion fields – belie any such thesis, for they are rooted in his federalist and majoritarian commitments, ones incidentally with good pedigree in American constitutional law.  At the same time, lest we forget the main thesis of A COURT DIVIDED, the Rehnquist Court’s divisions on gay rights and abortion cannot really be traced to the difference between modern and traditional Republicans.  The conflicting judicial positions seem more consonant with the division on these issues among Americans generally.    

 

The chapter entitled “The Federalism Revolution” merits a brief comment.  Tushnet notes that “[t]he court’s traditional Republicans believed that the exigencies of the modern economy and the needs and desires of the American people required more of the national government than its modern Republicans did.”  Yet, in almost all of the major federalism decisions discussed in this chapter, O’Connor and Kennedy were aligned with Scalia, Rehnquist, and Thomas.  And what these justices as a unit have created, however, is far less than a revolution.  As the author himself concedes, “[n]ot a single central feature of the New Deal’s regulatory regime was overturned in the revolution, nor were central elements of the Great Society’s program displaced.”  But the statement that “no one besides the justices really cares about federalism” is surely mistaken.  Many Americans still believe [*15] that the states remain important laboratories of social policy formation and that the principle of subsidiarity associated with a system of state and local governments has more than a little to do with the scope and quality of liberty in America.

           

Concluding his thoughts, the author wonders whether “the divided Supreme Court [can] become united.” His musings here focus mainly on the probable jurisprudential outcome of a court dominated by conservative or modern Republicans.  Such a tribunal, reckons the author, would be inclined to overrule ROE v. WADE, nullify local gay rights laws, overturn America’s commitment to anti-discrimination policies, and  invalidate “state constitutional provisions that limit the power of state legislatures to make vouchers available to parents who send their children to religious schools” and perhaps even “require governments to create voucher programs.” Yet these views do not uniformly divide liberals from conservatives or traditional from modern Republicans. In addition, as the author makes clear by his constant reference to what a united conservative court might do, his parade of “horribles” is a matter of sheer speculation. He is quite right to suggest, however, that at the end of the day, the future of the Supreme Court will depend on the politics of judicial nomination and confirmation. 

 

In turning to the politics of judicial recruitment, Tushnet notes that judicial nominations have always been driven by partisan politics.  But with the defeat of Robert Bork’s nomination in 1987, the process has taken on the character of ideological warfare inflamed by “interest group mobilization” designed to pressure U.S. Senators into either affirming or rejecting a nominee.  Tushnet seems not to deplore this development.  But in this reviewer’s estimation – and in that of other advanced constitutional democracies that have declined to follow the American model of judicial selection – extravagant lobbying for and against judicial nominees by ideologically driven interest groups has had a corrupting influence on the process of judicial confirmation.  For one thing, Senators surrender their independence when paying heed to interest group demands that often descend into threats of retaliation at the polling booth if they vote the wrong way.  For another, judicial nominees surrender their independence when badgered to commit themselves to particular judicial policies or philosophies of constitutional interpretation. The real problem here seems to be a design flaw in the United States Constitution.  Foreign models of selecting constitutional court justices suggest two ways out of the current mess; namely, to allow the legislature to choose justices by a two-thirds vote or, alternatively – which would not require a constitutional amendment – to impose term limits on Supreme Court justices.

 

Finally, and contrary to the thesis of this book, the real problem on the Supreme Court has little to do with the division on the Court between traditional and modern Republicans or, for that matter, between the tribunal’s “liberal” Democrats and “conservative” Republicans.  This reviewer is inclined to believe, along with Benjamin Wittes, that the “problem is not the Supreme Court’s politics but the depressing quality of its work.”  Writing in THE ATLANTIC MONTHLY (September 2005), [*16] Wittes remarked that what is “most striking is a basic unhappiness with the Court’s quality and integrity – a sense from the left, right, and center alike that the Court blithely ignores its own principles and precedents when they’re inconvenient; rul[ing] on matters not properly before it to reach the result the majority seeks; mistakes facts, and issues shoddy opinions that give insufficient guidance to lower courts.” 

 

ROE v. WADE, authored by a member of the Court described by Jeffrey Rosen as a “failed justice” (THE NEW REPUBLIC, October 6, 2005), is not the least of the Court’s shoddy opinions. THE ECONOMIST, the highly esteemed international  magazine that describes itself as socially libertarian, recently described ROE as having “established a cycle of attack and counter-attack that has debased everything that it has touched, especially the judiciary” (December 8, 2005). Perhaps, as Judge Richard A. Posner underscores in his recent “Foreword” to the HARVARD LAW REVIEW’s analysis of the Supreme Court’s 2004 term, the Court is in fact, as Professor Tushnet suggests, little more than a political tribunal, that it “roam[s] free” and “exercis[es] discretionary power as capacious as a legislature’s.”  The author of this commendable book would presumably agree with Posner’s view that judicial opinions in cases rooted in the broad language of the Constitution can only be decided “on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”

REFERENCES:

THE ECONOMIST.  2005.  “A Heretical Proposal.” (December 8, 2005).

 

Posner, Richard A. 2005. “Foreword: A Political Court.” 119 HARVARD LAW REVIEW 31-102.

 

Rosen, Jeffrey.  2005.  “Judge Not: What it Takes to be on the Court.” THE NEW REPUBLIC (October 6, 2005).

 

Wittes, Benjamin.  2005. “Without Precedent.” THE ATLANTIC MONTHLY (September 2005).

 

CASE REFERENCES:

LAWRENCE v. TEXAS, 539 US 558 (2003).

 

LEE v. WEISMAN, 505 US 577 (1992).

 

MITCHELL v. HELMS, 530 US 793 (2000).

 

NATIONAL LEAGUE OF CITIES v. USERY, 426 US 833 (1976).

 

ROE v. WADE, 410 US 113 (1973).

 

WALLACE v. JAFFREE, 472 US 38 (1985).

 

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

 

ZELMAN v. SIMMONS-HARRIS, 536 US 639 (2002).

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© Copyright 2006 by the author, Donald P. Kommers.