A Court Divided: The Rehnquist Court and the Future of Constitutional Law

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9780393327571: A Court Divided: The Rehnquist Court and the Future of Constitutional Law
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"An incisive consideration of the Supremes, offering erudite yet accessible clues to legal thinking on the most important level."--Kirkus Reviews

In this authoritative reckoning with the eighteen-year record of the Rehnquist Court, Georgetown law professor Mark Tushnet reveals how the decisions of nine deeply divided justices have left the future of the Court; and the nation; hanging in the balance. Many have assumed that the chasm on the Court has been between its liberals and its conservatives. In reality, the division was between those in tune with the modern post-Reagan Republican Party and those who, though considered to be in the Court's center, represent an older Republican tradition. As a result, the Court has modestly promoted the agenda of today's economic conservatives, but has regularly defeated the agenda of social issues conservatives; while paving the way for more radically conservative path in the future.

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About the Author:

Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School and the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law. He divides his time between Washington, DC, and Cambridge, Massachusetts.

From The Washington Post:

If there is one question about the Rehnquist court that maddens conservatives and titillates liberals, it's this: Why can't a Supreme Court with seven Republican appointees reverse the Warren court revolution once and for all? Why are affirmative action and abortion still the law of the land?

No one truly understands it, but partial explanations abound: Perhaps it's that jurists grow more liberal as they age; perhaps Chief Justice William H. Rehnquist (or alternatively Associate Justice Antonin Scalia) didn't have the acumen or temperament to truly steer the court the way Earl Warren or even William Brennan did; maybe failures in the judicial selection process led to "Borkings" (wherein great conservative jurists' nominations were quashed) and their inevitable by-product, "Souter-ings" (wherein sneaky liberals slunk through confirmation dressed as great conservative jurists). But perhaps the most widespread theory about the failure to roll back the legacy of the Warren court touts the hegemonic control exercised by the court's two "swing voters" -- Anthony Kennedy and Sandra Day O'Connor, frequently portrayed in the media as "swingers," both in the sense of being utterly unpredictable and of being wildly subject to external influences.

The legal scholar Mark Tushnet has another, more nuanced spin on the court's ideological inconsistency: A Court Divided attributes the failure of the Rehnquist court to act as a monolithic counterweight to the excesses of the 1960s and '70s to the fact that the court's conservatives are far from monolithic in their own ideology. Instead, they embody an unhappy marriage of "two types of Republican": those "speaking for the modern Republican Party, transformed by Barry Goldwater and Ronald Reagan" and more traditional Republicans sympathetic to the cultural and social issues "represented [by] an older Republican tradition."

This analysis is stated several times throughout the book, but never quite unpacked: Instead, A Court Divided is itself essentially divided into two books. The first half offers incisive and frank case studies of several (mostly conservative) jurists on the court, braided with lucid explanations of their key innovations. We are treated here to clear and revealing mini-essays about Scalia's views on free speech and Clarence Thomas's take on "originalism."

The second half of the book explores Rehnquist court advances (or retrenchments) in important areas of the law -- including abortion, affirmative action and federalism -- with Tushnet generally arguing that rumors of a Rehnquist revolution are greatly exaggerated. In his conclusion, Tushnet again takes up the question of the division among the court's conservatives to suggest that future vacancies may not provoke apocalyptic confirmation battles. The court, as he sees it, is essentially a moderate institution that -- with rare exceptions -- follows the policies and preferences of the elected branches of government and the electorate.

It's hard to agree completely with Tushnet's thesis about the reason Rehnquist -- who ascended to the chief's spot deeply disgusted with what he saw as the excesses of the Warren court -- failed to ignite a counter-revolt. Tushnet's claim that the rift behind the stalled revolution is a product of a culture clash between "old" and "new" Republicans can strain credulity. (For instance, it's hardly clear that "country club" Republicans like O'Connor and David Souter are benignly predisposed toward gay sodomy.) Nevertheless, A Court Divided is everything a book about the Supreme Court ought to be: clear, engaging, laced with gossip and mercifully uncluttered by footnotes, endnotes or string citations. It is, in short, a brisk ride through 30 years of high-court jurisprudence with a slightly mussed constitutional law professor in an open Jeep. Tushnet, who teaches at Georgetown University and clerked for Thurgood Marshall, makes the perfect tour guide through this sometimes dusty terrain.

For example, the radical shift in the court's federalism doctrine -- its counterrevolution against congressional overreaching in federalizing local law -- is clearly presented through the case of the alleged rape victim Christy Brzonkala, which led a divided court in 2000 to strike down portions of the Violence Against Women Act. Tushnet's gift lies in narrating from the ideal middle distance, making even four-part balancing tests accessible to the lay reader.

To be sure, he has made some odd stylistic choices, both in terms of organization and substance. The thematic division of the book into justices and areas of law obscures some fascinating implicit truths -- for instance, that so many of the Rehnquist court's key strikes against Warren court precedents have involved framing civil rights issues (including commercial regulation or government funding for religion) as simple free-speech contests. And Tushnet talks about the justices and their writings in an awkward past tense -- as though he couldn't trust that some, or even all of them, won't have keeled over between delivery of his final manuscript and his publication date. Moreover, his choice to focus in the first half of the book on the personal psychologies and preferences of the justices he profiles overemphasizes a point he downplays later: that for many of these jurists, personal preferences, experiences and predilections really do overwhelm their stated legal philosophies.

But A Court Divided is a brave book. As Tushnet goes out of his way to say in his introduction, too much lay writing about the court involves either "cheering or booing" its decisions, and such endeavors do little to help the public understand how the court works. Tushnet doesn't pull punches, stating flatly that "Antonin Scalia isn't as smart as he thinks he is" and even loosely ranking those justices who might give Scalia a run for his money in terms of sheer brainpower ("Rehnquist, Stevens, Breyer, Souter, and Ginsburg"). Tushnet is pitiless when it comes to condemning Scalia's abrasive, often abusive personal attacks, which he dismisses as "the sound bite style of Crossfire" and as less than intellectually persuasive to boot. But lest you suspect that he's advancing a canned liberal agenda, it's worth noting that Tushnet's most generous portrait by far is of Clarence Thomas -- a man whose legal work he characterizes as "more interesting and distinctive than what Scalia has done" and with "a greater chance of making an enduring contribution to constitutional law."

Mostly, this is a brave book because Tushnet isn't afraid to challenge the conventional wisdom, emanating now from both sides of the political spectrum, about the excessive powers of the high court and the doomsday that will follow any new appointments. Instead, he advances the notion of a "collaborative Court" in which "who is on the Court may matter less than what's going on in the political process." Perhaps the court is not driving national policy after all but taking its cues from the elected branches. Tushnet concludes that the Rehnquist court's "division between economic issues and social issues mirrored what was happening in politics generally: Conservatives were winning the economic war" but losing the culture war. (Indeed, they're losing that war because the country club Republicans won't stay on the reservation.) All of which means that recent efforts to remove the power of constitutional review from the courts, impeach "activist judges," limit judicial terms or exercise the "nuclear option" at confirmation hearings are misguided and unnecessary.

Whether, as Tushnet contends, the court is divided into old and new Republicans, into conservatives, liberals and swingers, into pragmatists and idealists, or into lovers of firm rules or squishy standards, the fact is that the Supreme Court is human, not divine. It need not be feared, bound or gagged in order to play out its constitutional role. A Court Divided goes a long way toward illuminating that truth.

Reviewed by Dahlia Lithwick
Copyright 2005, The Washington Post Co. All Rights Reserved.

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