Vol. 13 No. 5 (May 2003)
THE REHNQUIST COURT: A RETROSPECTIVE, edited by Martin Belsky. New York: Oxford University Press, 2002. $49.95 (hardback). 283pp. ISBN: 0-19-514839-8.
Reviewed by Cynthia L. Cates, Political Science Department, Towson University. E-mail: firstname.lastname@example.org
Tis the season for contemplating the Court. Justice O’Connor has just released her “reflections” (O’Connor, 2003) and Justice Thomas recently entered into a seven-figure agreement with Harper Collins to produce his memoirs (Lane, 2003). Barely predating these judicial self assessments, comes THE REHNQUIST COURT, a series of evaluative essays edited by Martin H. Belsky.
To begin, Belsky is to be applauded for soliciting a nice blend of scholars and practitioners: law professors, judges, even a journalist and a corporate litigator. The law professors are all familiar names to those interested in constitutional politics, e.g., Chemerinsky, Kamisar, Neuborne, Friedman. The judges are largely drawn from the Circuits, though both the New Jersey and Canadian Supreme Courts are represented. The litigator is the former president of the ABA and the journalist, David Savage of the L.A. Times, is one of the finest Court observers in the nation. Moreover, the book contains a good mix of ideological perspectives
THE REHNQUIST COURT is divided into two parts, “The Constitutional Corpus,” examining discrete constitutional issues, and “A Broader Perspective,” which, as the title implies, focuses more generally on jurisprudence a la the Rehnquist era.
“The Constitutional Corpus,” a collection of six essays, is heavily weighted toward First Amendment concerns. Burt Neuborne offers a broad critique of the Court’s speech jurisprudence, concluding that while it “has broken little new doctrinal ground . . . [i]t has . . . applied preexisting First Amendment doctrine vigorously. . . . (25).” Bruce Ennis takes a more narrow view of expressive concerns, concentrating on the Court’s seminal explorations into cyberspace. He notes the difficulty the Court encounters in the new communications cases, involving a multiplicity of interests, and requiring a constant balancing of interests, as opposed to the older style categorical analysis of speech. Finally, John T. Noonan, Jr. assesses the Court’s efforts in religious freedom cases, a surprisingly small part of this Court’s caseload, comprising only “about 1.6 percent of its published opinions” (69).
The remainder of the “Corpus” section covers race, criminal suspects, and economic rights. Chief Judge Wilkinson of the Fourth Circuit, an unabashed admirer of the Rehnquist Court’s nondiscrimination jurisprudence—“When our grandchildren celebrate the tricentennial, they will respect the Rehnquist Court for resisting the road to disunion” (62)—offers an overview and analysis of cases ranging from majority-minority districting, to jury selection, to the very timely topic of affirmative action. Yale Kamisar’s piece on Fourth and Fifth Amendment doctrine comes to the intriguing conclusion that the Court’s actual determinations are strangely at odds with its principles. Thus, for example, he notes
By disparaging the Miranda warnings, by viewing them as only second-class prophylactic safeguards and Miranda violations as only second-class wrongs, language in various Burger Court cases seem to have prepared the way for the overruling of Miranda itself. . . . But, the Rehnquist Court has yet to take the next step. . . . (105)
The section concludes with Lino A. Gragalia’s wide-ranging and provocative consideration of economic rights before the Court.
Lawrence Friedman, always a delight to read, kicks off Part II, “A Broader Perspective,” with “Some More or Less Historical Comments,” noting in particular the Court’s hugely reduced caseload and fractured decision making. David Savage’s “Journalist’s Perspective” is an amusing critique of three books written on the Court to date. Savage’s own TURNING RIGHT, he notes, was published just as the Court, after “steadily and confidently [stepping] toward the right, suddenly stopped, as if they had reached a cliff and seen the abyss below” (160). Similarly, James Simon’s THE CENTER HOLDS hit the market “just in time for a series of powerful conservative rulings” (161). And Ed Lazarus’ much ballyhooed CLOSED CHAMBERS, with its picture of a hopelessly divided Court, was just in time to see a series of important unanimous or near-unanimous rulings. Savage’s conclusion: “If one is upset about a trend seen in the current Court, write a book about it [and] bring about instant change” (164).
Attorney Jerome Shestack offers an interesting appraisal of each of the current Justices and their differing relationships to the organized bar. Erwin Chemerinsky tackles the question of constitutional jurisprudence, placing it aptly in the context of values choices. More narrowly, Justice Garibaldi of the New Jersey Supreme Court considers the Court’s approach to state constitutional law, advocating her Court’s approach to asserting “adequate and independent state grounds” as an effective way of avoiding U.S. Supreme Court review of state constitutional decisions.
The book segues nicely from the parochial to the global with an essay by Canadian Supreme Court Justice Claire L’Heureux-Dubé. She asserts “the importance of courts in the global dialogue on human rights and other common legal problems,” noting the failure, thus far, of “the Rehnquist Court . . . [to] tak[e] part in this dialogue” (247). Judge Robert Henry and Arthur LeFrancois critique both the current Court’s methodologies of originalism and cost-benefit analysis and the role of clerks. The book concludes with David Garrow’s generally admiring portrait of the Chief Justice himself.
THE REHNQUIST COURT is not without flaws. It was obviously author-driven and the editor’s attempt to place the pieces in thematic context is not altogether successful. The author-driven nature of the work is also responsible for some significant gaps in scholarship. It is, for example, rather stunning that “The Constitutional Corpus” contains not a single article on the Court’s federalism jurisprudence. While this is covered in bits-and-pieces throughout the “Broader Context,” it certainly merited discrete discussion.
Still, this is a fine work. Each of the essays is well-written and thought-provoking. And, while the book would make a nice supplement to an upper-division or graduate course on the Supreme Court, it is written and presented in such a way as to be very accessible to a lay public.
Lane, Charles. 2003. “Clarence Thomas Sells Memoirs,” THE WASHINGTON POST, 9 January.
Lazarus, Edward. 1998. CLOSED CHAMBERS : THE RISE, FALL, AND FUTURE OF THE MODERN SUPREME COURT. New York: Times Books.
O’Connor, Sandra Day (and Craig Joyce). 2003. THE MAJESTY OF THE LAW: REFLECTIONS OF A SUPREME COURT JUSTICE. New York: Random House.
Savage, David G. 1993. TURNING RIGHT: THE MAKING OF THE REHNQUIST SUPREME COURT. New York: John Wiley and Sons, Inc.
Simon, James. 1995. THE CENTER HOLDS: THE POWER STRUGGLE INSIDE THE REHNQUIST COURT. New York: Simon & Schuster.
Copyright 2003 by the author, Cynthia L. Cates.