A Year at the Supreme Court.

Vol. 15 No.2 (February 2005), pp.131-134

A YEAR AT THE SUPREME COURT, by Neal Devins and Davison M. Douglas (eds.). Durham: Duke University Press, 2004. 256pp. Cloth $74.95. ISBN: 0-8223-3437-2. Paper $21.95. ISBN: 0-8223 3448-8.

Reviewed by Elizabeth Ellen Gordon, Department of Political Science and International Affairs, Kennesaw State University. Email: egordon@kennesaw.edu

A YEAR AT THE SUPREME COURT is an accessible and lively collection of articles examining the work of the U.S. Supreme Court during 2002-2003, a term editors Neal Devins and Davison Douglas depict as extraordinary for its far-reaching decisions and sharp internal divisions. The authors of this assortment of essays come from a variety of perspectives and include law professors, litigators, and journalists/commentators writing for leading journals. Even though not written by political scientists, the pieces explore many themes of perennial interest to political scientists who study the Court, such as the role of swing justices, the impact of public opinion and amici curiae in the Court’s decisions, and whether the justices make their rulings based on ideology or pragmatism, on the long-view of precedent or fairness to individuals in the case at hand.

The book opens with a pair of essays by Dahlia Lithwick and David Savage on the so-called swing justices, Sandra Day O’Connor and Anthony Kennedy. Although commentators have identified these two as swing justices for years, the 2002-2003 term cemented this assessment. O’Connor voted with the majority in all 13 cases decided by a 5-4 vote. Also, O’Connor and Kennedy authored several of the most visible, controversial and surprising decisions from this term—dealing with cross-burning, three-strikes sentencing, affirmative action and sodomy laws. For this reason, their judicial philosophies and swing voter status seem appropriate material for this volume. Both essays are well-written and enlightening.

Next are two contrasting essays on LAWRENCE v. TEXAS. The first, by David J. Garrow, focuses on the legal implications of the sodomy case, especially the expansive nature of Kennedy’s majority opinion, which relies on the broad basis of privacy rights rather than the narrower (and safer) ground of equal protection. In the second essay, Jeffrey Rosen examines the political ramifications of the case, as signaling the next phase in the culture wars. His prediction that Kennedy’s opinion went so far that the gay rights movement will suffer from a powerful (even overwhelming?) backlash from social conservatives is interesting, if a bit exaggerated.

Two essays focus on the affirmative action cases from the University of Michigan. The first is a harsh critique of the decisions, which Stuart Taylor describes as encouraging institutions to “hide the ball”—i.e., to rely on racial preferences that are not so blatant as to offend the majority of Americans who oppose them. He argues that Justice O’Connor wrote the majority opinion more in response to elite opinion on affirmative action than any actual trends in the academic performance of minority [*132] students. Next, litigator Carter G. Phillips, author of an amicus brief on behalf of retired military leaders favoring Michigan’s racial preferences, muses about the circumstances under which amici influence Supreme Court decisions. His approach is admittedly anecdotal and based on years of experience with amicus briefs. As such, his essay is of limited use from a political science perspective. Additionally, he gives the reader precious little insight into the strategy of the military officers or in-depth analysis of the impact of this particular brief. The section devoted to the military brief is a scant three pages long.

Erwin Chemerinsky’s contribution on the three strikes case LOCKYER v. ANDRADE is unusually personal, in that the reader becomes privy to the author’s thoughts and feelings on the night before oral argument, while waiting for his turn at the Court, and upon receiving the bad news of the decision going against him. He discusses at length his legal analysis of the case and his side’s arguments, which are presented clearly and convincingly. What Chemerinsky does not really do is analyze what went wrong, why the other side’s arguments prevailed. Perhaps as an advocate in the case, he is not in a position to undertake such an analysis, but as the only essay on this important case, his work left the reader mostly at sea regarding the decision. Even he seems baffled by the decision.

“Cross Burning: Virginia v. Black” was another illuminating personal account from the perspective of a litigator. Here, Rod Smolla explores not only the complexities of the two cases challenging the Virginia cross burning statute but also discusses the classic lawyer’s dilemma of representing an unsavory cause or client. Furthermore his piece deals with the issue of appropriated symbols and the power of speech accompanied by action. He goes beyond Chemerinsky in explaining the Court’s ruling, even though he admits bafflement on the issue of whether his side “won.” In contrast, Chemerinsky knows he lost, but does not really tell us why.

Two more essays round out the volume. One is “Glasnost at the Supreme Court,” an essay by Tony Mauro on the increasingly open Court culture, and the other is Ramesh Ponururu’s consideration of the Rehnquist Court’s jurisprudence of federalism entitled “The Court’s Faux Federalism.”

A YEAR AT THE SUPREME COURT can succeed as a pedagogical tool, suitable as a supplemental reader for an upper-level course on judicial process, or perhaps constitutional law. Most of the essays are accessible to undergraduates, although the tone varies tremendously throughout the book. Students would probably appreciate the bite-sized chunks of information these essays represent. Furthermore, by offering pairs of essays on the same or related topics –two on the swing justices, two on LAWRENCE, and two on the affirmative action cases – the book offers instructors a ready-made opportunity to have students compare and contrast articles written from different perspectives. On the other hand, the book does not offer a coherent overarching message about the Court’s work, nor does it really answer the question the editors pose in the introduction: whether the 2002-2003 [*133] term was “upending expectations or business as usual.” Students will need background on the Court’s procedures and on the Rehnquist Court’s history to appreciate these essays fully. For example, the book leaves the reader with a sense of surprise over the breadth of the sodomy decision without pointing out that the precedent it overturned (BOWERS v. HARDWICK) was not particularly strong. Indeed, the fifth vote in that 5-4 decision was cast by Justice Lewis Powell, who in retirement admitted that his vote with the majority was probably a mistake. The Georgia sodomy statute upheld in BOWERS was subsequently overturned by the Georgia Supreme Court. BOWERS was ripe to be overturned, yet none of this context is mentioned.

Nevertheless, a theme that does emerge from the collection is that the Court restricts itself in order to protect its prestige, reputation, and power. Taylor claims that the affirmative action decisions came out as they did because O’Connor feared damaging her own reputation and the Court’s. He argues that if the Court dismantled affirmative action in higher education, the justices, and by extension the institution, would be perceived and portrayed as racist. Ponururu contends that arguments about the Rehnquist Court’s states’ rights agenda miss the point. In federalism cases, the Court’s focus is really on judicial supremacy, with the Court pulling back from the abyss – from dismantling civil rights precedents or the New Deal – to protect their legitimacy while at the same time striking down Congressional actions. Mauro explains the Court’s new openness as needed image repair in the wake of BUSH v. GORE, a decision widely perceived as illegitimate and baldly political.

Ultimately, the book succeeds best when it focuses more narrowly – on a particular justice or a particular case. The two least successful essays – Ponruru’s and Mauro’s – attempt to draw trends in the Rehnquist Court without adequately tying these trends into the topic at hand, i.e., the 2002-2003 term. One might even question whether the diverse (and sometimes minor) developments Mauro cobbles together even indicate a “trend.” Is the increase in hiring minority law clerks really related to the decision to allow spectators to take notes in the Court? Are these developments sufficiently important to include in this volume, especially in light of the omission of 2002-2003 cases on such hot topics as sex offender registration, children’s access to online pornography, and using RICO laws to prosecute anti-abortion demonstrators? Understandably, not every development in this eventful term can be covered, but there is disconnection among the pieces in the collection. Perhaps A YEAR AT THE SUPREME COURT might best be viewed as a colorful collage of snapshots taken within a single term, an assemblage most fruitfully interpreted by a reader with some background knowledge of the institution.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BUSH v. GORE, 531 U.S. 98 (2000).

LAWRENCE v. TEXAS, 539 US 558 (2003). [*134]

LOCKYER v. ANDRADE, 538 US 63 (2003).

VIRGINIA v. BLACK, 538 U.S. 343 (2003).