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A COURT DIVIDED The Rehnquist Court and the Future of Constitutional Law By Mark Tushnet W.W. Norton & Co./$27.95 Chief Justice William Rehnquist in his early career was “simply indifferent to the situation of African-Americans.” Justice Anthony Kennedy displays “public pomposity.” As for Justice Antonin Scalia? He “isn’t as smart as he thinks he is,” comes up “short” in good judgment, was merely in the top of the “second rank” of law professors of his generation and writes opinions that don’t “improve the quality of public discourse.” So claims Mark Tushnet, a professor at Georgetown University Law Center, in “A Court Divided: The Rehnquist court and the Future of Constitutional Law,” a new book on the Rehnquist court. The book blends such juicy morsels with an academic analysis of the political split on the Supreme Court. It’s a tasty dish, even if occasionally thin on compelling evidence for some of its more controversial allegations. To Tushnet, the divided court of his book’s title is not split over whether it should be restrained or activist. Instead, everyone on the Rehnquist court is a judicial activist on a political court. Nor is the Rehnquist court truly divided between liberals and conservatives. In the Rehnquist court, says Tushnet, “liberals mostly sat on the sidelines.” Rather, the Rehnquist court is a Republican court that reflects a split between two types of Republicans. One type, more traditional and concerned primarily with the size of government, contains Justices Sandra Day O’Connor and Kennedy. The other wing of more “modern” Republicans includes Rehnquist, Scalia and Clarence Thomas and is more concerned about social issues. These divisions, says Tushnet, give the Rehnquist court its “distinctive combination” of decisions that invalidate laws disliked by economic conservatives but also decisions that invalidate laws favored by social conservatives. That conservative justices might produce conservative economic rulings is not a surprise, but consider the record of the Rehnquist court on social issues: On gay rights, Kennedy wrote the opinion striking down a Colorado anti-gay law in Romer v. Evans (1996). Seven years later, Kennedy wrote the opinion in Lawrence v. Texas that concluded that a state anti-sodomy law was unconstitutional. Scalia dissented, illustrating the split between “traditional” and “modern” Republicans. Similarly, on the establishment clause, Kennedy struck down prayer at high school graduations, ruling in Lee v. Weisman (1992) that such prayers subjected students to coercive pressures. Later, the court found that prayer at high school football games also was unconstitutional. Although the religious right won victories over funding for religious speech at colleges and the approval of school voucher programs that included religious schools, such victories rested on a claim of government neutrality toward religion, “thereby draining any specifically religious content out of the programs” that the religious right supported. And O’Connor, Kennedy and David Souter voted to preserve abortion rights in Planned Parenthood of Southeastern Pa. v. Casey (1992). To Tushnet, this opinion “succeeded as an act of statesmanship, no matter its deficiencies as a matter of legal analysis” and removed the abortion issue from the court’s agenda for more than a decade. In addition to this discussion of the different politics of conservatives, Tushnet explores the biographical background of many of the justices, adding human depth to their legal tendencies. Take Thomas, for example. Tushnet once thought that Thomas “probably lied” in denying at his Senate confirmation hearing that anything happened between himself and Anita Hill. But now, Tushnet says that he sees the issue as more complicated. Thomas was “a bit clumsy in approaching women for dates.” Whether his memory blurred about his interactions with Hill or Thomas was “trapped by the simplifications of the media story of his successes,” the truth about Thomas’ interactions with Hill “should not have been discrediting” for appointment to the court. Once on the court, Thomas developed a niche in handling complex regulatory cases, where he reportedly has a photographic memory of the record. Yet Thomas has had limited involvement in drafting majority opinions in constitutional law, allegedly because of his reluctance to accommodate concerns of other justices and a reduced number of conservative constitutional victories for Rehnquist to assign to Thomas. On the other end of the court’s political spectrum from Thomas is Justice Ruth Bader Ginsburg. Tushnet notes that Ginsburg helped create the first casebook on sex discrimination (published in 1974) and ran the Women’s Rights Project of the American Civil Liberties Union. As part of Ginsburg’s litigation plan in bringing sex discrimination cases, she used a psychological strategy of showing male justices that gender stereotypes hurt men as well as women. On the court, Ginsburg is a “sameness feminist,” which Tushnet defines as one who believes that the distribution of attributes between men and women is similar enough to make the differences unimportant. (This is contrasted with “difference feminists,” who think that the sexes differ in ways that could be material to law and policy.) Ginsburg is “a careful and meticulous liberal, fierce on issues of gender equality,” Tushnet writes. Apparently some of her law clerks found her “remote and opaque,” however, and she allegedly communicates displeasure to them with an “icy stare.” Ginsburg is friendly with Scalia, and their families regularly entertain each other at home and spend New Year’s Eve together. Tushnet suggests that this friendship may influence the tone of Scalia’s opinions. He points to a more restrained Scalia dissent in the Virginia Military Institute case where Ginsburg wrote the majority opinion striking down a male-only admissions policy. For Tushnet, the Rehnquist court, “divided on so many social issues, was entirely unified around women’s issues appealing to suburban women.” Perhaps the justices, like their elected counterparts in the political branches, also care about the issues of America’s soccer moms. So how does Tushnet’s book rate overall? The answer depends largely on which skills the author was using to prepare the analytical meal. Tushnet the court scholar is comprehensive and thorough. He addresses a slew of major constitutional issues, ranging from protection for commercial speech under the First Amendment to the toughening of the Fifth Amendment’s takings clause. Overall, Tushnet’s analysis is solid, and his distinction between traditional and modern conservatives provides a useful way of thinking about why Republican-appointed justices frequently reach opposite results. At times, his thinking becomes even greater by providing non-obvious insights that upon reflection become indisputable — the discussion of Boy Scouts of America v. Dale is a prime example. Tushnet is known as a liberal, and at times the book seems to view red ideas and justices through blue glasses. Nevertheless, he seems to have tried to be fair, and one can discount Tushnet’s apparent politics and still respect his reasonable analysis of a conservative court. Tushnet the court gossip is entertaining in discussing the justices’ quirks and foibles at oral argument. For example, the claim about O’Connor’s use of “my goodness” signaling doom for an advocate was delightful. After Tushnet’s book, people will be watching oral argument in a new light looking for those magic words. But when the issues become more weighty, Tushnet the court reporter occasionally makes serious allegations without sufficient support. To start, the personal attacks on many of the justices — Rehnquist’s alleged indifference to the situation of African-Americans, Scalia’s alleged intellectual limitations, Kennedy’s alleged pomposity — seem broader conclusions than Tushnet’s cited evidence would warrant. But at least in these instances, the reader can follow how Tushnet reached his judgments and give his evidence the appropriate weight. More serious is Tushnet’s claim about Justice Stephen Breyer’s alleged offer in Bush v. Gore (2000): “He [Breyer] would agree that the Florida recount procedure violated the equal protection clause if she [O'Connor] would agree to give the state more time to conduct a proper recount.” If Breyer was willing to swap his constitutional obligation to gain more time for the Florida recount, it is a serious matter. So how does Tushnet know if Breyer did this? No source for the allegation is given in the endnotes. Much of Tushnet’s unattributed information in the book seems to involve O’Connor, so perhaps Tushnet interviewed one of her past clerks who had direct knowledge of the events. On the other hand, Tushnet’s claims may be nothing more than unreliable, third-hand gossip inserted into a formal Supreme Court history. Readers have no clue which is the case, and they should. Reporters occasionally use unattributed sources, ideally under the careful scrutiny of editors. In doing so, they try to provide as much information as possible so that readers can assess the source’s potential bias. It’s a tricky task, and it requires a great confidence from readers that the reporter got it right. Here, Tushnet never achieves that overwhelming credibility that would let readers accept his claims on faith rather than evidence. On a charge of such significance involving a sitting justice, Tushnet’s readers — not to mention the accused Breyer — deserve more explanation. Robert L. Rogers, a Washington, D.C., lawyer, is the associate opinion editor of Legal Times , a Recorder affiliate.

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