THE REHNQUIST COURT AND THE CONSTITUTION by Tinsley E. Yarbrough. New York: Oxford University Press,
2000. 306 pp. Cloth $35.00.
Reviewed by Elliot E. Slotnick, Department of Political Science and The Graduate School, The Ohio State University.
In THE REHNQUIST COURT AND THE CONSTITUTION, Professor Tinsley Yarbrough offers up an impressive work of research and scholarship. Aimed at assessing the Supreme Court and its work in the period since William Rehnquist was appointed to the Court's center chair in 1986, the study is, in reality, two somewhat different books delivered under one cover. Consequently, this is a book of unusual scope. In "Book One," comprised of chapters labeled "The Justices" and "The Court," the reader encounters a primer in Supreme Court processes with a central focus on a number of issues of contemporary concern to both a lay and professional readership. The book opens with an excellent capsulated discussion of nomination processes and the controversies over judicial selection for each Supreme Court appointment from the Rehnquist elevation to the appointment of Stephen Breyer. Included are a series of thumbnail sketches of nomination politics as well as of the nominees themselves.
In a sense, the chapter sets the "scene" for the narrative to follow through drawing a portrait of the Supreme Court's cast of players as played out through their nomination processes. "The Court" chapter takes the next step of giving the reader an insider's view of the Court at work, focusing on a number of prominent themes such as the role of law clerks in the Court's processes, the importance of oral argument, and the oft -debated concern of cameras in the courtroom and media coverage of the Court. Clearly based on an exhaustive research effort utilizing an extraordinary amount of both primary and secondary source material, the substance of these chapters (albeit not their methodology) recalls the territory covered in earlier works focused on the Court such as THE BRETHREN (Woodward and Armstrong 1979). Yet, unlike the very popular Woodward and Armstrong narrative, Yarbrough relies virtually exclusively on documented sources to make his arguments and to back them up.
These chapters remain lively and engagingly written throughout. At times, they reveal the author's wit and, occasionally, his point of view. Witness, for example, Yarbrough taking note that, "As the author of ROE v. WADE (1973), Justice Blackmun was a frequent object of death threats, presumably from anti-abortion extremists zealously, but selectively, committed to the sanctity of life" (p. 56). Although these chapters are the proverbial "good read" for all audiences, there will be junctures where some will take issue with the author's conclusions. Thus, for example, Yarbrough tends to invest more heavily than warranted in the argument once associated with Supreme Court law clerk William Rehnquist and, more recently, with former clerk Edward Lazarus (1998) that the Court's work as well as its output have become unduly dominated by and associated with its clerks. Still, whether or not one agrees with this analysis or, for that matter, several other positions taken throughout these two chapters, they make for provocative, instructive, and satisfying reading.
The "second" book included in this volume (comprising chapters 3-9) delves deeply into the domain of substantive case law and its development in a number of critical areas of constitutional adjudication during the Rehnquist era. Included are chapter length concentrations on Governmental Power, the status of the "Double Standard" of review, Unenumerated Rights, the Religion Clauses, Freedom of Expression and Association, Criminal Justice, and Equal Protection. The focus of these chapters tends to center much more on the substance of the Court's decisions and the policy ramifications of what the Court has done, as distinct from a focus on questions of abstract constitutional theory or debates about judicial activism, judicial self-restraint, and the Court's "role" in the American system of governance. The overarching theme of these chapters, writ large, is a conventional one. As Yarbrough states, "The Reagan-Bush judicial choices have had an undoubted influence on the direction of constitutional law, but not, to date, the sort of fundamental impact for which the Reagan White House had hope" (p. x). The burden of the main body of the book is to prove this point through the documentation of decision-making trends in the identified issue areas. The one major exception to this thesis where the Court may be fostering radical (and regressive) changes in the law may be found in matters of federalism and economic regulation where, as in the past, substantive due process is rearing its judicial head.
As a general matter, this "second" book, while more voluminous and "scholarly" than the first, is considerably less satisfying. For one, Yarbrough provides no real linkage between the first two chapters and the seven that follow. If the detailed introductions to the justices that are provided in chapters one and two were meant to provide a context and understanding for how these justices "behave" in the later chapters, Yarbrough has fallen a good deal short of this goal. No explicit linkages are drawn between what we learn about the justices early on and what we subsequently see them "do." It is, indeed, this disjuncture that has led me to conceptualize the Yarbrough book as, in reality, two books in one. If the answer to my criticism is that the linkages I am seeking are implicit and should be recognized by the reader, while the "fault" may lie in the pastiche of decisional positions taken by the Rehnquist Court justices and not Yarbrough, I don't think such linkages are there to be found.
On another dimension, as "readable" as the first two chapters are, those that follow will be considerably less accessible to other than the most prepared readers. The reasons for such difficulty are easy to comprehend. There is simply so much ground to cover and so much detail to document that, particularly for those not well versed in the state of the law prior to the Rehnquist Court, much of this volume will not be fully or satisfyingly digested. Perhaps this is most evident in Chapters Seven (Freedom of Expression and Association) and Eight (Criminal Justice). In both of these chapters, the reader is confronted with a staccato like rendering of case law in numerous "related," yet, still, somewhat distinct issue areas falling within the chapters' broad domains. What results from Yarbrough's efforts to be inclusive and thorough is more a recitation of doctrinal development than an integration of the Court's work.
This is not to suggest that the strengths of the book and its successes can be found only in its initial chapters. Thus, for example, there remain elements of engaging writing seasoned with all due sarcasm and cynicism interspersed in the ensuing chapters. Further, Yarbrough is not reticent to "take sides." In discussing an exchange of opposing opinions in a death penalty case between Justices Blackmun and Scalia he notes, for example, "Justice Blackmun might have replied that government should be held to higher standards than its most despicable citizens. But lacking Justice Scalia's certitude and gift for invective, Blackmun did not respond" (p. 242). Unfortunately, such observations tend to be overwhelmed throughout the chapters on substantive case law development where the emphasis, perhaps appropriately, is on detail and documentation of an overwhelming amount of emerging case law.
Additional observations can be made of the multiple chapters that focus on substantive case law development. Chapter Three on Governmental Power is noteworthy for its strong analysis of the wrong-headedness of the Court's allowing the Paula Jones litigation against President Clinton to proceed and forward looking in projecting the mischief this decision could portend. Chapter Four's focus on the Double Standard underscores a tendency in the book to underemphasize the interpretive changes that have occurred in the area of federalism during Rehnquist's reign, while dwelling more on the demise of an interpretive approach that draws distinctions between judicial solicitousness to economic versus non-economic rights. Yarbrough portrays an activist court resurrecting substantive due process as a basis for subjecting economic regulation to stringent judicial review. His interpretation, in the mainstream of contemporary constitutional analysis, is clearly stated and to the point. "[R]ecent economic decisions have provided a basis for the meaningful erosion, if not demise, of the double standard, signaling a major rebirth of Supreme Court solicitude for propertied and commercial interests that may await only the election of another Republican president" (pp. 103-04). Here, as elsewhere, only time will gauge the accuracy of Yarbrough's prediction.
Throughout the substantive chapters, Yarbrough tries to "make clear," what might be best characterized as the Court's lack of clarity. This is, indeed, a difficult, perhaps impossible, task. While generally critical of the generally conservative meandering of the Court across a number of issue areas, Yarbrough's posture changes somewhat only in the chapter on Unenumerated Rights (Chapter 5). He appears somewhat sympathetic to the Court's judgment in BOWERS v. HARDWICK (1986) and to the Scalia dissent in ROMER v. EVANS (1996), two rare instances where the Court addressed matters touching upon questions of gay rights. Save for this striking deviation, Yarbrough's heart, throughout the book, generally aligns clearly with the liberal interpretive line as the preferential approach to the Court's cases.
Perhaps the chapters where the clearest doctrinal themes emerge in Yarbrough's analysis are Chapter Six's focus on the Religion Clauses and Chapter Nine's analysis of Equal Protection. Well documented in Chapter Six are the Court's curtailment and, perhaps, ultimate abandonment of the Lemon test with a move towards a "non-preferentialist" approach to the Establishment Clause. It is suggested that this development, coupled with greater restrictions being placed on the scope of the religious freedom offered by the Free Exercise Clause, may offer the worst of both constitutional worlds. Perhaps the doctrinal "logic" of this chapter is a bit easier to follow than several others because a greater amount of attention is paid here to the pre-Rehnquist history in this decisional area. Still, the chapter will remain somewhat of a challenge to those lacking substantive expertise in this area of case law. Even more successful is the book's final chapter on Equal Protection where Yarbrough documents the irony in the Court's constitutional logic in this realm, one buttressed by a misplaced sense that racial concerns are no longer central ones in the American legal realm and that this country's greatest historic social problem is, somehow, a thing of the past. As Yarbrough presents the chapter's thesis, "an unduly wooden commitment to a 'color blind' (or 'gender blind') Constitution in the near term, combined with a naive faith in the adequacy of negative rather than affirmative remedies for racial and related forms of discrimination, may obstruct the worthy principle's [equal protection's] ultimate triumph." (p. 253)
Yarbrough's study closes with an unduly brief Epilogue that, in its brevity, underscores my ambivalence about this book. Frustrated by a lack of integration throughout, and my inability to make systematic "sense" of the constitutional makeup of the individual justices on the Court based on their proffered opinions, I felt that a synthetic concluding chapter might valiantly ride in to save the day. Unfortunately, the author's Epilogue does not even attempt that task. In the final analysis, I remain torn between holding the author accountable for a fundamental failure to "make sense" out of the Court's output (nonsense?) of the past decade and a half or, perhaps more appropriately, recognizing that, in many respects, Yarbrough has done the best that could be done with the material that he has been given. In this scenario, it is not the book that has "failed" but, rather, the Rehnquist Court itself. What we are left with, in either case, is a volume of sound scholarship and good writing, but one, however, that offers the reader two books to ponder. The first, widely accessible to a broad audience, engagingly portrays the derivation of the Rehnquist Court and details the Court's operation as a working part of our governmental system. The second book, much less accessible and, often, rough going, documents a drifting Court that, a decade and a half after the seating of William Rehnquist in its center Chair, remains in search of a constitutional identity and a lasting legacy.
Lazarus, Edward. 1998. CLOSED CHAMBERS: THE FIRST ERYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT. New York: Random House.
Woodward, Bob and Scott Armstrong, 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon and Schuster.
BOWERS v. HARDWICK, 478 U. S. 186 (1986).
ROE v. WADE, 410 U. S. 113 (1973).
ROEMER v. EVANS, 517 U. S. 620 (1996).
Copyright 2000 by the author.