Vol. 4 No. 4 (April, 1994) pp. 58-60

THE REHNQUIST COURT: IN PURSUIT OF JUDICIAL CONSERVATISM by Stanley H. Friedelbaum. Westport, Connecticut: Greenwood Press, 1994. 184 pp. Cloth $49.95.

Reviewed by Thomas R. Hensley, Department of Political Science, Kent State University.

Stanley H. Friedelbaum's THE REHNQUIST COURT: IN PURSUIT OF JUDICIAL CONSERVATISM is the latest in a series of books (e.g., Savage, 1992; Decker, 1992; and Domino, 1994) examining whether the Supreme Court has engaged in a conservative counterrevolution since William Rehnquist became Chief Justice in 1986. This is a central issue to students of the Supreme Court because of the dramatic changes in the Court's membership that occurred during the conservative Republican presidencies of Ronald Reagan and George Bush. Examining the Court's decisions through the 1991-1992 term, Friedelbaum provides a mixed answer to this question. He argues that a coalition of six or seven conservative members frequently dominate the Court's decision making, and in some areas this majority has produced dramatic, new conservative precedents. Friedelbaum also argues, however, that a more centrist coalition composed of Justices O'Connor, Kennedy, and Souter appears to have emerged to control the decisions in some important areas. Friedelbaum's brief but valuable book focuses upon the Court's civil rights and liberties decisions, although he devotes an initial chapter to federalism, a theme to which he returns throughout the book. In each chapter, he begins with a brief introduction and historic overview of the topic, and then he presents a more detailed description and analysis of the major decisions of the Rehnquist Court, concluding each chapter with an assessment of the extent to which the Court has become more conservative in its policies.

The strongest chapter in the book is the first chapter on federalism, an area in which Friedelbaum has written extensively. He provides a detailed analysis of the Burger Court's major cases on federalism, focusing upon the Court's decisions of NATIONAL LEAGUE OF CITIES V. USERY (1976), in which a majority of the justices gave substantial emphasis to states' rights, and GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY (1985), in which the Court overturned NATIONAL LEAGUE OF CITIES and embraced a predominant role for the federal government over the states. Friedelbaum then examines major Rehnquist Court cases dealing with federalism, arguing that no significant alterations of GARCIA have occurred. He does see the possibility of the Court eventually embracing a more balanced position between NATIONAL LEAGUE OF CITIES and GARCIA, but this development, like many others, may be determined by future personnel changes on the Court. The Court's treatment of liberty and privacy interests is the subject of Chapter Two. Friedelbaum gives primary attention to the abortion controversy, but he also focuses upon the topics of homosexuality, child abuse, paternity rights, and the right-to-die. In examining the subject of abortion, he presents interesting discussions of the Rehnquist Court's decisions in WEBSTER V. REPRODUCTIVE HEALTH SERVICES (1989) and RUST V. SULLIVAN (1991), but the analysis of PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY (1992) is disappointing. He gives only one paragraph to this important case, concluding that "a newly formed coalition, consisting of Justices O'Connor, Kennedy, and Souter, reaffirmed the essential holding of ROE V. WADE (p. 34). He makes no mention of the development of the "undue burden" standard and the repudiation of the trimester formula by this trio, nor does he discuss the deep and continuing fragmentation within the Court over the abortion issue. Given his emphasis in the concluding chapter on the importance of this case, it is surprising that so little attention was given to it in Chapter Two. In his conclusion to the chapter, Friedelbaum argues that the Court has been generally conservative in its decision making in this area, but he suggests that the Court is not likely to be able to resist societal pressures for greater liberty and privacy interests.

Freedom of speech issues are discussed in Chapter Three, with separate discussions given to the topics of speech by public employees, speech in

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public and non-public forums, symbolic speech and expressive conduct, and commercial speech. Brief consideration is also given in this chapter to freedom of association. Although Friedelbaum discusses many significant freedom of speech cases of the Rehnquist Court, he completely omits the important 1992 case of R.A.V. V. ST PAUL dealing with hate speech. Friedelbaum concludes the chapter by arguing, "On balance, the current state of expressive freedoms in the Rehnquist Court, though clearly not at the apex of libertarian activism, does not suggest any marked dilution of constitutional values" (p. 68). His analysis throughout the chapter provides convincing support for this assessment, although he recognizes that the Rehnquist Court does not seem as committed to commercial speech as was the Burger Court.

Chapter Four deals with various aspects of freedom of the press, with primary emphasis on the topics of libel, obscenity, the free press/fair trial controversy, and freedom of the press in the public schools. Friedelbaum sees a somewhat mixed pattern in this area, but he argues that "tenets of press freedom remain secure..." (p. 89). He believes that in the area of libel the Court has struck a workable balance between press freedom and the privacy rights of individuals. In regard to the difficult subject of obscenity, he argues that the Court has moved away from definitional approaches and is relying instead on states' traditional police powers to deal with the secondary effects related to issues of obscenity. Friedelbaum argues that the Court has emphasized the right of fair trial over freedom of the press, and he concludes that press freedom in the public schools is truncated at best.

Friedelbaum examines the Rehnquist Court's treatment of the religion clauses in Chapter Five, placing substantial emphasis on the tensions between the two clauses. Primary attention is given in the chapter to the Establishment Clause, and Friedelbaum's analysis is thorough and insightful. He emphasizes the lack of consistency in the Court's historic treatment of Establishment Clause issues, and he discusses the controversies within the Court over the approaches of strict separation, neutrality, and accommodation as well as the ongoing conflict over the utility of the three-part LEMON test. Strangely, however, Friedelbaum makes no mention of the important 1992 case of LEE V. WEISMAN, the case in which the Court surprised many observers by finding public school graduation prayers to be unconstitutional. Although the omission of this case does not undercut the validity of his generalizations about the Rehnquist Court's treatment of the Establishment Clause, a consideration of this case could have strengthened the entire book. LEE V. WEISMAN revealed the continuing controversy among the justices regarding the interpretation of the Establishment Clause, for Kennedy surprisingly bolted from the accommodationist camp in this case. Furthermore, Friedelbaum states that Souter's "views remain largely unknown with respect to the Establishment Clause..." (p. 100), but Souter provided a detailed statement of his neutralist Establishment Clause orientation in this case. Finally, this case provides support to Friedelbaum's thesis regarding the emergence of a centrist coalition of Kennedy, O'Connor, and Souter, yet it is only mentioned in a footnote in the final chapter. Friedelbaum's analysis of the Free Exercise Clause is rather brief, but he appropriately emphasizes the important case of OREGON V. SMITH (1990) in which the Court undercut the precedent case of SHERBERT V. VERNER (1963), where the Court set forth a strict scrutiny standard for judging free exercise cases. Friedelbaum concludes his discussion of the Free Exercise Clause by stating, "The status of free exercise as a preferred First Amendment freedom is not clear, and its future is increasingly dubious and precarious" (p. 109). Equal protection is the subject of Chapter Six, with the focus on educational desegregation, affirmative action, gender discrimination, and age discrimination. This is the shortest chapter in the book (13 pages), and it suffers somewhat from the cursory treatment given to these important and complex topics. In examining race discrimination in education, Friedelbaum focuses on the Rehnquist Court's two conservative decisions in BOARD OF EDUCATION OF OKLAHOMA

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CITY PUBLIC SCHOOLS V. DOWELL (1991) and FREEMAN V. PITTS (1992). Although these are certainly important cases, the Court's remarkable decision in MISSOURI V. JENKINS (1990) allowing a federal judge to order a school board to raise taxes to fund magnet schools was passed over in a brief sentence. In addition, the liberal decision in UNITED STATES V. FORDICE (1992), which dealt with the continuing racial segregation in Mississippi's colleges, was discussed at the end of the chapter rather than under the heading of educational desegregation. A more balanced assessment would have occurred if all of these cases had been given fuller consideration in the same section of the chapter. In discussing affirmative action, Friedelbaum places primary emphasis on CITY OF RICHMOND V. J. A. CROSON (1989) in which a Court majority for the first time placed affirmative action cases under suspect classification, and he concludes that "a return to strict scrutiny as the criterion of validity augurs a period of moderation, if not of cessation, in the development of programs explicitly designed to assist minorities" (p. 119). METRO BROADCASTING V. FCC (1990) resulted in a majority of the court applying an intermediate standard of scrutiny for federal affirmative action cases, however, and Friedelbaum only mentions this casually in a footnote. Shifting to an examination of gender and age discrimination, Friedelbaum argues that the Rehnquist Court has refused to extend protections beyond those established by the Burger Court, and he sees no likelihood that this will occur in the near future.

Although Friedelbaum devotes only one rather brief chapter to the subject of the guarantees of the criminally accused, he covers an enormous amount of ground in an effective manner. His focus is upon involuntary confessions, habeas corpus, probable cause and warrantless searches under the Fourth Amendment, and the Eighth Amendment death penalty cases with special attention given to PAYNE V. TENNESSEE (1991), in which a majority of the Court indicated a willingness to engage in a wholesale assault on Warren and Burger Court precedents. Friedelbaum argues that the Rehnquist Court has been notably conservative in this area of the law: "The Rehnquist Court, it seems, has embarked upon a studied, intentional course less attentive to broadening or substantially preserving constitutional safeguards long associated with the process of the criminal law" (p. 133). He does have doubts, however, that a majority exists to engage in the frontal assault on precedent suggested in PAYNE. Friedelbaum has written an insightful, readable analysis of the first seven terms of the Rehnquist Court. He provides strong support for his central thesis that the Rehnquist Court has not been as conservative as it initially appeared to be when Kennedy replaced Powell and as many predicted it would become when Souter replaced Brennan and Thomas replaced Marshall. His argument is somewhat less convincing that a more moderate coalition of Kennedy, O'Connor, and Souter has emerged as a major force on the Court, for Friedelbaum's primary evidence of this involves the 1992 CASEY abortion decision. This is an important possibility, however, and deserves close and continuing analysis by students of the Court. Thus, despite some relatively minor criticisms which can be raised, the book is recommended reading for anyone interested in the decisional patterns of the Rehnquist Court. It is a brief but rich doctrinal examination of many of the Rehn-

quist Court's major decisions, and it is also a good source of hypotheses for more empirically oriented studies of the Court.

REFERENCES

Decker, John F. 1992. REVOLUTION TO THE RIGHT: CRIMINAL PROCEDURE JURISPRUDENCE DURING THE BURGER-REHNQUIST COURT ERA. New York: Garland Publishing.

Domino, John C. 1994. CIVIL RIGHTS AND LIBERTIES: TOWARD THE 21ST CENTURY. New York: HarperCollins.

Savage, David G. 1992. TURNING RIGHT: THE MAKING OF THE REHNQUIST COURT. New York: John Wiley and Sons.