Vol. 7 No. 12 (December 1997) pp. 554-557.

UP AGAINST THE LAW: AFFIRMATIVE ACTION AND THE SUPREME COURT by Lincoln Caplan. New York: The Twentieth Century Fund Press, 1997. 75 pp. $9.95 Paper. ISBN 0-87078-409-9.

THE SUPREME COURT EXPLAINED by Ellen Greenberg. New York: W. W. Norton and Company, 1997. 208 pp. $12.95 Paper. ISBN 0-393-31638-6.

Reviewed by Elliot E. Slotnick, The Graduate School and the Department of Political Science, The Ohio State University.
 

While these brief books by Lincoln Caplan and Ellen Greenberg will both be of interest to the readers of this list, and while both may have some classroom utility, there are few additional common threads that link these volumes together. Indeed, while both efforts are primers of a sort, they are fundamentally different in their focus, scope, intellectual thrust and purpose.

Caplan’s UP AGAINST THE LAW is a Twentieth Century Fund Report that joins advocacy with introduction in examining the issues unleashed by the ongoing debate over affirmative action in America. In many respects, the subtitle for Caplan’s book (AFFIRMATIVE ACTION AND THE SUPREME COURT) is a misnomer, since this is a broadly focused examination of affirmative action and American society that travels through extensive terrain well beyond the Court itself.

The starting point for Caplan’s essay is the recognition that most Americans have little or no knowledge about what, broadly speaking, affirmative action "is" and, correspondingly, about what its beneficial societal consequences have been. Data are brought to bear in support of Caplan’s position yet, the author laments, debate about affirmative action has focused too often on concerns about mandatory results instead of the more salutary concern of fostering opportunity. At bottom, the actions of the Supreme Court are characterized as flying in the face of the nation’s experience, hence the book’s primary title, UP AGAINST THE LAW. The Court’s problems in dealing effectively with affirmative action have been joined by the sound bite over-simplicity of media attention to the issue and the demagoguery of politicians. The collective consequence of these problems is that the case "against" affirmative action is rarely answered by a case "for." Common perceptions remain at odds with reality in a Lewis Carroll world where proponents remain on the defensive and no meaningful engagement takes place across the issue’s divide.

Caplan’s analysis underscores both the divisiveness and precariousness with which the Court has addressed affirmative action. He highlights the fact that no affirmative action case has been decided unanimously and that the Court’s majorities and pluralities have generally held a one vote margin -- despite the fact that no race-conscious affirmative action program has been upheld since 1991. Currently, five justices on the Court have never voted to uphold an affirmative action plan.

The greatest value of Caplan’s book lies in its portrayal of affirmative action in its true complexity. Not often about quotas or even results, affirmative action is more broadly revealed to include an eclectic range of approaches to addressing multiple societal problems. In presenting the affirmative case FOR affirmative action, Caplan relies on the inherent pragmatism of the construct as well as Justice Brennan’s majority opinion in the 1991 case, METRO BROADCASTING V. FCC.

The critical core of Brennan’s argument was that inclusion and exclusion on racial grounds are fundamentally different in kind, and that efforts to pursue affirmative action warrant the Court’s confidence and a restrained judicial hand. Caplan contends forcefully that affirmative action programs are pursued out of self-interest and bear results. Rhetorical debates about the issue do not square with reality. In the wake of his effort to refute wide-ranging criticisms of affirmative action, Caplan concludes "the mandate for affirmative action in widespread spheres and different guises is evidence of its appeal as a versatile, flexible, and resilient means to important, disparately framed, national ends." Along the way, Caplan manages to explain the importance of the constitutional versus statutory basis of the Court’s rulings, the level of judicial scrutiny debate and other complex legalisms in a manner that will be accessible to a lay (or student!) readership.

The weaknesses of Caplan’s effort stem from the book’s brevity. At 60 pages in length, it cannot do justice to the Court’s rulings, particularly those beyond BAKKE, in explicating their meaning and complexity. In addition, while I find much of Caplan’s analysis persuasive, the book remains, nevertheless, somewhat of a "hurray for our side" argument. While it is commendable that Caplan is not apologetic in his support for affirmative action, there is little here that will prove compelling for the non-believer. At bottom, while it is good to be reminded of the verses, Caplan is, nevertheless, preaching to the choir.

Ellen Greenberg’s volume, THE SUPREME COURT EXPLAINED, is both broader in scope and, simultaneously, less ambitious than Caplan’s effort. The work is advertised on its back cover as "the only book to get at the basics of the Court...in brief and accessible fashion." Were that true, and were the book not only accessible but fully accurate in its detail, I would heartily recommend it to a lay and, perhaps, an introductory college readership. Yet, while there is much that is good and useful here, this is clearly a case of caveat emptor. Just as clearly, Baum, O’Brien and others have little to fear from this quarter. Interestingly, there is considerable information in this volume that may serve as source material for readers of this list. Ironically, however, there is too much that is "wrong" here to recommend the book to those who won’t "know it when they see it!"

As with Caplan’s study, Greenberg’s primer is too narrowly named in placing its focus exclusively on the Supreme Court. At the outset it should be noted that the book’s lengthiest chapter is an extended glossary of law-related terms and phrases that goes well beyond the vocabulary of the Supreme Court per se and the reader’s gaze is extended broadly to trial court and criminal justice processes.

The book’s virtues are easily noted and, indeed, they are substantial. The reader is offered an excellent presentation of source tips revealing how one could obtain more information about the Court through numerous Web sites, visits to the Court, phone inquiries to the Public Information Office, etc. The book reprints sample Court documents that are rarely seen by students or their teachers including an abbreviated Orders List and a very welcome and useful complete copy of the Supreme Court’s internal rules. Charts and figures clearly denote the composition of federal districts and appeals court circuits, and we are introduced to all the justices, their tenure on the Court, their political party, the president who appointed them, and the identity of the Senate’s majority party. Chapter one sets the stage for the Court and its players through a diagrammatic presentation that goes well beyond any available in our standard references and texts. Where else, for example, do we get detailed descriptions of the Court’s clocks and red drapes, and who else has told us that the Court’s food service personnel now double as the institution’s seamstresses? In the broad scale glossary we learn that to "Dig" a case means to dismiss certiorari as improvidently granted. We are introduced to the NARA (National Archives and Records Administration), informed that the justices robes used to be scarlet with gold piping, and told that one definition of the Supreme Court Bar refers to the bronze railing in the courtroom that separates the public from the courtroom proper.

If such arcane information is as appealing to you as it is to me, where then does Greenberg go "wrong?" For one, such tidbits are served up alongside a good deal of overstatement and hyperbole. It is, perhaps, better to write about Supreme Court processes occurring beyond the public eye rather than continually referring to the Court as acting in secret. It is better not to suggest that we all have a chance to be heard as witnesses by the Judiciary Committee when a new justice is appointed, although when we do seek to be put on the witness list we are at least warned to "be sure to send a follow-up letter confirming your request." In writing about the Chief Justice’s opinion assignment power it is better not to suggest that, in designating assignments, the Chief "can be assured of [the opinion’s] content, style and slant," or that the Discuss List is "another example of the Chief Justice’s ability to control the Court."

If Greenberg, at times, simply goes too far, at other junctures she gets it clearly wrong. Some of her errors of fact (such as giving the wrong location for the Federal Judicial Center, labeling Lewis Powell a Republican, and asserting that "justice" is a title commonly given to judges on appellate courts) are quite harmless. Others, however, would lead the unschooled reader to reach more seriously erroneous misunderstandings about the American judiciary. Thus, despite Greenberg’s assertions to the contrary, per curiam opinions are not always unanimous (e.g., the Pentagon Papers case), plea bargaining is not being described accurately when it is characterized exclusively in terms of "prosecutor’s promises that a lighter sentence will be imposed," plurality opinions should not be defined as ones where "there are more justices issuing concurring opinions than there are justices signing on to the original opinion," and readers should never be told that "one thing is certain. All cases that have been argued during a term will be decided before the summer recess begins." Definitional problems are also exhibited when, for example, the Court’s "lineup" is characterized in a manner that demonstrates the complexity of judicial voting outcomes but, nevertheless, fails to develop the distinction between opinions of the Court and judgments. And, in another example, the definition of "mootness" fails to satisfy in characterizing moot issues as those "not yet settled by the Court and still arguable." Imagine the difficulties Greenberg has in reaching a satisfactory definition of "landmark decisions!"

Further, and somewhat surprisingly given the pronounced tendency to report "small" things about the Court, Greenberg displays little subtlety (or accuracy) in characterizing some "big ticket" items. The book offers the reader little sense of the enormity of federal court caseloads, particularly in the lower courts, while never giving the reader a feel for the relative rarity with which cases actually make their way to the Supreme Court. To the contrary, the upward movement of cases through our court systems, federal and state, to the Supreme Court is portrayed as a road with fairly smooth sailing, and the reader is even informed about a method for seeking a rehearing in the event that your petition for certiorari is initially denied. The closest one gets to the recognition that a case will not be heard by the Court is in the gross understatement that, "most of the hundreds of petitions for writs of certiorari are denied, but a few do go on to be heard by the full Court."

I have, undoubtedly, gone far enough in my criticism. Still, however, the reader should be forewarned that each chapter in Greenberg’s primer begins with a cartoon in the style of those in the NEW YORKER magazine. Alas, few reach the NEW YORKER’s level and even fewer are on the mark in relating to the chapter in which they appear. The bottom line, for me, in Greenberg’s book remains "caveat emptor." I yield to no one in my sense that the public is woefully misinformed and under-informed about the Court and that, surely, we can do better in disseminating information about the institution. I fear, however, that the average lay reader of this attempt to "explain" the Court will become better informed in some respects and less knowledgeable in many others.
 


Copyright 1997