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Is the Supreme Court the Sum of Its Parts?


A Review of the Recent Nine-Essay Collection Rehnquist Justice

By DAVID LUNDSGAARD


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Friday, Sep. 26, 2003
Earl M. Maltz, ed., Rehnquist Justice: Understanding the Court Dynamic (University Press of Kansas 2003)

Rehnquist Justice: Understanding the Court Dynamic is a loosely organized, interesting, and occasionally fascinating collection of essays on the present Supreme Court. It doubtless will be required reading in numerous political science graduate seminars, but it also has much to recommend it to the casual reader interested in the Court.

Adopting the perspective that the behavior of the Supreme Court can be usefully (or perhaps even best) understood by an examination of its constituent parts, Rehnquist Justice presents nine essays, each by a different author, each evaluating the background, politics, judicial philosophy, and written opinions of an individual Justice.

This approach is a refreshing and useful way to look at the Court, although the nine essays in Rehnquist Justice do display a number of the standard misconceptions about Supreme Court judging.

One of the most interesting features of the collection is how much of it is written by non-lawyers. Only three of the nine writers have law degrees, with the remainder being primarily political science academics.

Somewhat surprisingly, this is a good thing. These authors are more sensitive to non-legal considerations, such as personal and psychological forces, and the "power" relationships on the Court, than a more lawyerly group probably would be.

Strong Descriptions But Weak Criticism

Rehnquist Justice is strongest when it sticks to analyzing how the various Justices act and interact. The major thesis of the book is that, for the most part, the swing votes of Justices O'Connor and Kennedy "have determined the outcome of the ideological struggle between the two opposing factions on the Court." It is a convincing thesis, if not particularly novel, and emerges effectively through the nine essays.

The collection is also strong in its objective descriptions of individual Justices' specific viewpoints. For example, Thomas Keck's discussion of Justice Souter's unique commitment to stare decisis (the rule that the Court must follow its own prior decisions) is especially provocative and illuminating. And Ward Farnsworth's analysis of the interaction between Justice Stevens' generally progressive constitutional politics and his relatively narrow vision of the role of judges provides a new appreciation of Stevens' important role on the Court.

Rehnquist Justice is weakest when its authors try to attack their subjects' opinions and judicial philosophies. There simply isn't enough space in these short essays to do a decent job critiquing Chief Justice Rehnquist's revival of federalism (the principle that the federal government is limited to specific enumerated powers) or Justice Scalia's doctrine of constitutional originalism (the idea that constitutional interpretation should be limited to how the text was understood when it was written).

Thus, the "critical" sections of Rehnquist Justice have a superficial and disappointing sound-bite quality that clashes with the better, more descriptive passages of the essays.

The Supreme Court is Not Merely a Court of Constitutional Review

Despite its numerous strengths, Rehnquist Justice falls prey to two of the most common misconceptions about the Court. The first of these is that the work of the Court can be understood principally through its written opinions in a limited number of "high profile" constitutional areas. With few exceptions, Rehnquist Justice evaluates the justices by looking at their written opinions in the controversial areas of abortion, race and gender relations, criminal due process, federal-state power, and religion.

This focus is limiting, however, because the work of the Supreme Court is much more than its decisions on these hot-button constitutional questions. The views and perspectives of the justices on other key issues are as important - or, indeed, sometimes more - important to the Court and the life of the country than their views on some of the controversial constitutional disputes.

There is, for example, virtually no discussion of opinions in recent important antitrust cases, such as State Oil v. Khan and California Dental Association v. FTC, or property "takings" cases, such as Lucas v. South Carolina Coastal Council and Palazzolo v. Rhode Island. Yet these decisions have much more effect on how people actually live their lives in the United States than do, for example, the Court's numerous and inconsistent rulings about what sort of holiday displays are permitted or prohibited by the Establishment Clause.

Happily, not all of the essays focus exclusively on constitutional issues to the exclusion of other important subjects. For instance, Ralph Rossum provides an enlightening examination of Justice Scalia's views on textual interpretation and the use of legislative history generally. And Nancy Maveety provides a careful, statistical examination of Justice O'Connor's voting patterns in all Court cases, not just the high-profile constitutional decisions.

The Justices Are Human Beings, Not Oracles

Most of the essays in Rehnquist Justice also fall prey to a second common misconception of the Justices: the erroneous view of high-court judges as monolithic, almost machine-like oracles announcing previously formed and unchanging positions.

The error in this viewpoint is vividly illustrated in several discussions in Rehnquist Justice of alleged "inconsistencies" between different opinions written by an individual Justice. When such an "inconsistency" is identified, even in opinions written decades apart, the Rehnquist Justice authors either strain to reconcile the opinions or explain them as part of a political compromise to gain votes in a particular case.

These efforts miss the fact that the nine Justices are human beings who are themselves evolving and learning in their jobs. Thus, the normal human explanations of inconsistencies, such as "I changed my mind," or "I don't remember what I wrote about that issue twenty years ago," are as likely to be true as the theory that some Machiavellian switch of position took place. These simpler explanations are largely lacking in Rehnquist Justice.

The other critical facet of Court life that this approach overlooks, and which is also almost entirely missing from Rehnquist Justice, is the role of the Justices' law clerks. The importance of law clerks can be overstated, but there is little doubt that clerks frequently can and do have a significant influence - for good or for ill - on both the votes of individual Justices and the specific content of opinions.

It is understandable that the Rehnquist Justice essayists may have avoided the law clerk question, because it is extremely difficult to determine what role any particular law clerk is having on any particular Justice at any given time. Prior attempts to gather that information have foundered for a variety of reasons, including the fact that many clerks are required to take a confidentiality vow.

Still, the law clerk question is an issue that doesn't go away simply because it is difficult to evaluate, and it is disappointing to see it ignored.

Notwithstanding these problems, Rehnquist Justice's approach to analyzing the Supreme Court as the sum of its Justices is an intriguing and illuminating one. Rehnquist Justice's execution of its plan is far from perfect, but there is plenty for both lawyers and non-lawyers to learn and benefit from in this collection of essays.


David C. Lundsgaard, a 1992 graduate of The Yale Law School, is a partner with the Seattle law of Graham & Dunn.

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