Vol. 2 No. 8 (August, 1992) pp. 109-110
TURNING RIGHT: THE MAKING OF THE REHNQUIST SUPREME COURT by David
S. Savage. New York: John Wiley & Sons, Inc. 1992 473 pp.
Cloth $22.95.
Reviewed by Saul Brenner, Department of Political Science,
University of North Carolina, Charlotte.
The timing of this book is unfortunate. A year ago, when this
book was written, we would want to hear the story of why the
Supreme Court turned to the Right. Now, however, after LEE V
WEISMAN and after PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA
V CASEY, in which justices O'Connor, Kennedy, and Souter formed a
center coalition and dominated the Court, it is problematic
whether the Court has turned to the Right. See generally Dworkin
NY REVIEW OF BOOKS, August 13, 1992.
David Savage, who covers the Court for the LOS ANGELES TIMES,
nevertheless, has written a good and clever book. He summarizes
many of the salient cases during the Rehnquist Court era until
the end of the October 1990 term (which he mistakenly calls the
1990-1991 term). Savage presents a portrait of each of the people
nominated by the President and tells us the story of their
appointments, including the events at the Senate Judiciary
Committee hearings, if such hearings took place. Regarding the
cases, he tells us about the strategies of the justices and
extensively covers oral arguments. Both the strategy and oral
argument material is new. Most of the other material can be found
in other sources.
This book is based, in part, on personal interviews with the
justices and their law clerks. In some respects it is the
successor to THE BRETHREN. But it is more professional and more
restrained than the latter book. It contains less gossip as well.
Savage does not explain the justices' voting behavior in simple
liberal-conservative terms. Although he recognizes these
tendencies, he also indicates that the justices are influenced by
their role perceptions and by their commitments to certain legal
positions. He tells us, for example, that Justice Stevens always
voted against religion whether the religious position was being
supported by an established religious group or by a minority
religion. He, of course, does not offer any systematic evidence
in support of this conclusion. Savage is not, after all, a social
scientist. The book is well written, informative, usually
accurate, at times dramatic, and always fun to read. I couldn't
put it down.
I once told the late and wise George Kaufmann who wrote a large
number of briefs in Supreme Court cases (one of his briefs is
mentioned on p. 160), that the most profound analysis of Supreme
Court decisions was presented by philosophers; not by law
professors. He replied, "I don't know who is the most
profound, but I do know who is the least profound - political
scientists." As a political scientist (and, therefore, at
risk of being superficial), here are some of the mistakes or
misinterpretations I believe that were made by Savage.
1. p. 10. Savage states that "Through 14 years as an
associate justice, he [Rehnquist] ...never deviated from the
conservative side." Segal and Spaeth (JUDICATURE,
August-September 1989) tell us that when Rehnquist was an
associate justice he voted in favor of the civil liberties
position 19.6% of the time and in favor of the economic liberal
position 40.6% of the time.
2. p. 11. Savage states that "The Court ... proudly ignores
the public's reaction once it has decided." he relationship
between the Supreme Court and public opinion is not that simple.
At times, the Court pays a great deal of attention to public
opinion and, at times, it ignores it. See generally Caldiera in
THE AMERICAN COURTS edited by Gates and Johnson (1991).
3. p. 13. He states that "The Supreme Court does not try
cases." How, then, can we explain MARBURY V MADISON and the
other
Page 110 follows:
original jurisdiction cases?
4. p. 27. Savage states that the authors of the 14th amendment
said that "the privileges and immunities" clause
includes all the Bill of Rights. I'm not sure who are the
"authors" of the 14th amendment. In any event, this is
a curious statement because throughout this book Savage
criticizes original intent arguments.
5. p. 45. He states that the Court used the "due
process" clause of the 14th amendment to incorporate ALL the
provisions of the Bill of Rights. The correct statement is that
it used this clause to incorporate MOST of the provisions of the
Bill of Rights. The states, for example, are still not required
to employ a grand jury indictment, despite the Fifth Amendment.
6. pp 142-143. He criticizes Bork's defense of the BROWN case.
But Bork's argument regarding BROWN is much more subtle than that
stated here. See Bork THE TEMPTING OF AMERICA (1990) pp 74-84.
7. p. 145. Savage states that the Connecticut anti-birth control
law was unenforced in that state. Justice Douglas disagrees. See
GRISWOLD V CONNECTICUT.
8. p. 146. He states, "For millions of Americans who believe
that human life begins at conception, the ROE decision was
morally wrong and a constitutional abomination." It is
logically possible to believe that human life beings at
conception and still defend the ROE decision. One can believe,
for example, that even though the fetus has the right to life,
the woman does not have the obligation to carry her for nine
months. See Judith Jarvis Thomson, PHILOSOPHY AND PUBLIC AFFAIRS
(1971).
9. p. 220. Throughout this book Savage looks upon "original
intent", in part, in terms of the practices at the time the
specific constitutional provision was adopted. Bork would,
instead, focus on the public understanding of the language of the
provisions. Here, although the "equal protection
clause" might have been intended to apply to Blacks only,
the public understanding of the language can reasonably be
interpreted to apply to all groups that are denied the equal
protection of the laws.
10. p. 261. When life begins, contrary to Savage, is not a
scientific question; it is a philosophical one.
11. p. 372. It is not true that the federal government got a free
hand to regulate the economy after 1937 because Roosevelt was
able to replace the "nine old men." Rather, the federal
government got a free hand because two of the justices (Hughes
and Roberts) switched sides. As a consequence, Roosevelt had a
5-4 majority in support of his New Deal legislation.
12. p. 390. The "cert pool" procedure usually involves
a law clerk of each justice "marking up" the petitions
(i.e., indicating whether he agrees with the recommendation of
the cert pool clerk or not).
13. p. 452. Savage states that until the Carolene Products case
of 1938 "the Bill of Rights and the Fourteenth Amendment's
guarantee of equal treatment under law had been little more than
a set of paper platitudes." This is too strong. A number of
pre-1937 Supreme Court decisions, for example, upheld the rights
of Black criminal defendants. See POWELL V ALABAMA (1932), NORRIS
V ALABAMA (1935), and BROWN V MISSISSIPPI (1936).
Copyright 1992