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A VETERAN LIBERAL TRIAL LAWYER'S VIEW OF THE HIGH COURT:
A Review of Attorney Martin Garbus's Courting Disaster


By KEVIN DOYLE


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Friday, Nov. 15, 2002

Martin Garbus, Courting Disaster: The Supreme Court and the Unmaking of American Law (Times Books, 2002)

In his new book Courting Disaster, well-known New York attorney Martin Garbus offers a liberal's appraisal of the current Supreme Court. Not surprisingly, he is deeply dismayed.

Garbus's book is a polemic, albeit one that raises interesting questions about the process of constitutional adjudication. As such, it will appeal to those Court watchers who are interested in the relationship between law and society, and who desire a legal system reflective of liberal values.

Other readers, however, will be left wanting a more balanced consideration of the issues than Garbus provides.

An Acknowledgment of Bias Undermines Any Hope of Objectivity

Garbus, a veteran trial lawyer, makes his position unequivocally clear at the start of the book. Early in the first chapter, he proclaims, "I acknowledge my bias as to what the law is, and what our Constitution stands for." That bias, clearly, is a liberal one - and it inevitably shades Garbus's examination of the Justices and of the opinions they deliver.

As a result, Courting Disaster has the inevitable feel of preaching to the converted. Predictably, Garbus dismisses a Scalia opinion as hopelessly antiquarian, but lauds a Ginsburg one on the ground that it promotes social justice. There are few surprises here, and the book is unlikely to change anyone's view; liberal readers will nod their heads enthusiastically, while conservative readers mutter in annoyance.

A Portrait of An Influential and Increasingly Conservative High Court

Garbus's spirited attack on the Supreme Court, while not a scholarly work, effectively serves to remind us that "the least dangerous branch" exerts a powerful influence in our political life and daily affairs.

Stressing the Court's power, the author structures the book around the broad subject areas the Court considers - each of them significant in itself. These areas include criminal law, abortion, federalism, free market economics, race, gender, affirmative action, and religion.

Within each of these chapters, Garbus examines the most significant opinions in that subject area. He also contrasts the Rehnquist Court's decisions with the decisions of earlier (and to him, clearly more enlightened) New Deal and Warren era Courts.

Garbus includes provocative quotes from both the case law and the Justices themselves in support of his positions. Unfortunately, the lack of clear attribution in the Notes section can be a distraction to the reader wishing to explore a given topic further.

Garbus on the Federalism Debate: It's Really About Much More, In His View

The chapter on federalism and states' rights provides a useful introduction to the contemporary debate. It surveys a broad range of Supreme Court decisions on these topics, from Gibbons v. Ogden to U.S. v. Lopez.

In discussing these cases, Garbus takes a pragmatic view. The Court's federalism opinions, he contends, are not really about competing theories of national power and state sovereignty - as they purport to be and as legal academics tend to take them to be. Instead, he bluntly asserts, they mask a wider "battle over race, class, religion, money, and power."

Garbus's point is well taken: Shifts in constitutional jurisprudence not only produce law review articles, they also fundamentally affect individual rights. Unfortunately, however, his partisan appraisal of the Court renders him unwilling to consider seriously the arguments in favor of state power, as opposed to federal power - or at least in favor of some limits to federal power.

Caricaturing Conservative Justices' Positions Instead of Confronting Them

In the section on capitalism and the free market, Garbus advances the theory that - consistent with its efforts to restrict the expansion of personal rights during the Warren years - the current Court adheres faithfully to its laissez-faire philosophy, under which markets will supposedly take care of themselves. The result, he concludes, is to lessen protection for individuals, and to place a disproportionately high value on property rights.

In this section, Garbus lays bare the current Court's apparent willingness to emphasize doctrine to the detriment of individual claims for redress. He is at his best when he is reducing abstract judicial ideologies to their practical consequences, as he does here.

At the same time, however, Garbus is perhaps too quick to discard the conservative Justices' philosophies, often sketching what amounts to caricatures of their views. Consider Scalia's originalism - the theory that the meaning attached to the Constitution by the Framers at the time of ratification can shed significant light on its meaning today. Garbus simply lampoons this influential jurisprudential theory as if it were merely an unreflective adherence to the past.

As usual, Garbus takes issue not only with the theory, but also with the politics of the Justices who espouse it. And as usual, he interprets everything through the lens of politics and subjective preference - paying far less attention to the role of precedent and other factors in the decisionmaking process.

Calling on Readers to Have A Voice In Future Confirmation Fights

Like Justice Breyer at his Senate confirmation hearings, Garbus seems to take seriously Oliver Wendell Holmes' aphorism that "law reflects not so much logic, as history and experience." To that end, he intersperses throughout the book short biographical outlines of the Justices, and suggests that their experiences prior to joining the Court are indicative of their approach to decision-making.

If one believes Garbus, one can predict a Justice's inclinations long before he or she reaches the bench - at the confirmation stage, or long before. Thus, it is not surprising that Garbus uses Courting Disaster to implore the public to use its voting power to elect representatives who will balance the Court more evenly.

Concerned that the Court wields "an immense and frightening antidemocratic power," Garbus asks readers, as voters, to intervene at the only times they can: during the confirmation process, or in the elections for the Senators who will control that process.

In the end, Courting Disaster calls upon readers to use the political process to help create a High Court reflective of the popular will. For Garbus, the law is decidedly political. Thus, the people must employ politics to change it, by changing the composition of the Court.


Kevin J. Doyle is a freelance writer living in New Jersey.

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