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Thursday, December 12th, 2002


 

First Among Equals: The Supreme Court in American Life

by Kenneth Starr

Politics by Other Means

A review by Cass R. Sunstein

Kenneth Starr is most famous for his role as independent counsel in the investigation of President Clinton. But Starr had a distinguished public career before he assumed that somewhat notorious position. In the first two years of the Reagan administration, he worked as a counselor to Attorney General William French Smith. In 1983, he was appointed to the second most important court in the nation, the United States Court of Appeals for the District of Columbia Circuit, where he earned a solid reputation for moderate and well-reasoned opinions. Starr had life tenure as a federal judge, but President George H.W. Bush convinced him to resign from the bench in 1989 to serve as solicitor general, representing the United States before the Supreme Court.

Under Starr's leadership, the Office of Independent Counsel was overzealous, to say the very least. This came as a big surprise to those who knew Starr's earlier work, or who knew the man personally, because Starr's performance showed so little of the caution and the good judgment that previously marked his career. Since resigning as independent counsel, Starr has, in his writings and his public statements, acted in the measured and responsible way that he did as a judge and as solicitor general.

Starr's new book is intended as a simple descriptive account of the Rehnquist Court, a kind of spectators' guide. It does not press its author's own views, but instead it depicts, in mostly neutral terms, what has been happening. As Starr describes it, his goal is "to introduce many of the key decisions of the modern Supreme Court; to describe the legal tools the justices have used in interpreting the law and deciding cases; to explain the big ideas that have moved the justices; to identify the sharpest divisions among them; and to show the difference that the vote of a single justice has so frequently made." But Starr has a broader ambition. He attempts to provide an evaluation of the modern Court, one that inevitably embeds his own views.

Starr presses two general points. The first is a claim of continuity between the Rehnquist Court and what preceded it. Starr urges that the Court has not abandoned the central role in American life that "was established so firmly by the Court under Earl Warren." In our system of government, the Supreme Court is "first among equals." Starr's second and contrasting theme involves what he sees as a change for the better. Compared to the Warren Court, he contends, the Rehnquist Court "has evolved into a more lawyerly tribunal," one that "has become increasingly dedicated to stability and moderation." Thus the current Court has been "self-consciously struggling for greater rigor and persuasiveness in its doctrine." The justices are "more and more lawyerly," paying close attention to "text, structure, constitutional history and precedent." Hence "none of the current justices would be inclined to say, as Thurgood Marshall reportedly did when asked about his judicial philosophy, 'I do what I think is right and let the law catch up with me.'" (Having clerked for Marshall, I doubt that he made this statement, except perhaps in jest or as an ironic response to a ridiculous question. Starr offers no citation for the statement.) Starr thinks that this is "a judge's Court, a court of lawyers," one in which history is "treated with genuine respect," one that favors "stability, not change; moderation and incrementalism, not liberalism or progressivism."

To this end, Starr stresses what he sees as the Rehnquist Court's reluctance to overrule the most controversial decisions of its predecessors. Miranda v. Arizona has been a long-standing target of the political right, partly because the Constitution does not seem to require Miranda's system of mandatory warnings for those in custody. But the Rehnquist Court conspicuously declined an opportunity to overrule Miranda. Even more than Miranda, conservatives (along with many liberals) have sharply criticized Roe v. Wade, which created the right to choose abortion on the basis of the "right to privacy." But the Rehnquist Court has accepted the idea of a right to privacy, and it has refused to overrule the basic holding in Roe. Starr emphasizes that political struggles have produced this stability: "There would not have been as much continuity had the composition of the post-Warren Court been different. As recent confirmations have reminded the nation, it matters, fundamentally and decisively, who serves on the Court." While emphasizing continuity, Starr does not make the absurd claim that the Rehnquist Court is doing what the Warren Court would have done. Consider the area of affirmative action, where the Court has, in Starr's view, "proved more restrained than the Warren Court would have been," because it has "backed away from the kind of law that was countenanced during the 1980s," that is, laws that "allocate opportunities with race in mind."

Starr believes that "the current Court is moved by large ideas, such as equality." He thinks that some of these ideas "cut across ideological and philosophical lines to a considerable degree, if only imperfectly." Hence in Bush v. Gore, about which Starr seems ambivalent, the justices sought "common philosophical ground, identified at a high level of generality — say, all voters should be treated equally, just as speakers should likewise be treated." In addition to stressing equality, Starr thinks that the Rehnquist Court is interested in two other ideas: the principle of individual conscience and the "grand tradition of 'restraint,' the principle that unelected judges should be highly deferential to the judgments of the political branches." We shall see that Starr's invocation of these large ideas creates real trouble for his claims about the distinctiveness of the Rehnquist Court, if only because almost all courts are, in one or another sense, committed to them.

Starr's treatment of particular areas of the law begins with freedom of speech. He explores the Supreme Court's controversial decision to strike down a federal law forbidding flag-burning. Starr emphasizes the fact that Justice Antonin Scalia joined the Court's majority. He finds Scalia's vote to be an important demonstration of judicial neutrality, which he celebrates throughout. Flag-burning was undoubtedly "anathema to Justice Scalia the person. As a patriotic citizen, the justice warmly embraced traditional American values of love of country and respect for its great symbols, above all the flag." But Scalia voted as he did because "his oath was to the law." In Starr's view, if "the judge honestly votes against the friends who put him on the bench, then the judge is reaching the goal of being genuinely disinterested and dispassionate — as a truly honorable judge should be." Starr also uses the flag-burning case as an example of a general movement within the federal judiciary toward extending the range and the level of the protection of speech.

For the Rehnquist Court, a "strongly unifying principle" under the First Amendment involves equality. This principle forbids the government to discriminate against either speech or speakers. In 1993, for example, the Court ruled that a Long Island school district could not exclude leaders of an evangelical church from its facilities. In the Court's view, school districts must treat all speakers in the same way; they cannot exclude religious speakers if they are including everyone else. Starr argues that the equality principle has been supplemented by a ban on coercion. In a representative case, the Court ruled that the California bar association could require lawyers to pay dues, but it could not use those dues for political activities that go far beyond what bar associations are organized to do. When dues are used to support efforts to obtain a freeze on nuclear weapons, some people are being coerced to support ideas of which they disapprove. This, the Court ruled, is constitutionally intolerable.

In Starr's account, an anti-coercion principle also explains the Supreme Court's controversial, five-four decision in the Boy Scouts case, in which the Court struck down a New Jersey law forbidding the Boy Scouts to discriminate against homosexuals. For the Court, the problem with the New Jersey law was that it coerced an organization to act in a way that was inconsistent with its basic commitments. Starr strongly approves of this decision, which he sees as emblematic of the Rehnquist Court. He urges that "this was the cautious prudent Court unwilling to rock the boat" and unwilling to "bring about a fundamental change in American traditions." Starr argues that "trampling over venerable organizations such as the Boy Scouts would have been viewed in much of the country as unwarranted and unwise. Where the stakes were high, the Court would show restraint." Here as elsewhere, Starr praises "restraint" and approves of decisions that respect "traditions."

Starr also devotes a chapter to campaign finance legislation. He offers a clear and straightforward account of the leading decision, Buckley v. Valeo. There the Court offered two major rulings. First, it ruled that Congress could, without offense to the First Amendment, impose limits on contributions to political campaigns. Second, the Court ruled that Congress could not limit expenditures, in which people spend money on their own rather than give it directly to candidates for their own use. The Court reasoned that campaign contributions risk the appearance and reality of corruption, in the form of a "quid pro quo": dollars in return for favors. But with expenditures, the Court said, there is no such risk, simply because the money does not go directly to candidates. In the years since Buckley, the Court has issued a number of complex rulings, and several of its members have argued that the basic holding in that case should be re-thought. Justices Scalia and Clarence Thomas seem to think that the Constitution might also protect campaign contributions, whereas Justices Stephen Breyer and Ruth Bader Ginsburg have suggested that the Constitution might not protect campaign expenditures. But the Rehnquist Court has shown a determination to "stay the course," continuing in the basic path set out by its predecessor.

With respect to privacy, Starr's basic message is that while the Rehnquist Court has not overruled the particular decisions of its predecessors, it has refused to go beyond those decisions or to build on them to create rights that are not rooted in long-standing traditions. This Court is not "anxious to announce some new constitutional right that pitches the nation into another lengthy and bitter debate over the decision's consequences and legitimacy." Starr plainly does "not admire" the outcome in Roe v. Wade. (As solicitor general, Starr filed briefs calling for Roe to be overruled, and a widely held view has it that it was in part owing to those briefs that he was not a serious contender for either of the Supreme Court vacancies under President George H.W. Bush.)

Yet his most fundamental objection is to the Court's "methodology" in that case, in which, he thinks, the Court paid too little attention to the text, structure, and history of the Constitution. Hence Starr is critical of the Rehnquist Court's refusal to overrule Roe. He urges that "the Court ought to be more willing to reassess its prior constitutional decisions." This is because the Constitution is so hard to amend, and because "the Court itself is unelected yet enjoys broad power to issue rules that affect the culture." But Starr is glad that the Court's middle-of-the-road decision, limiting without overruling Roe, "did not, in the end, portend a revival of Roe's discredited methodology." In the most prominent case, the Court refused to use the idea of "privacy" to create a right to physician-assisted suicide. With an air of celebration, Starr writes that "restraint, more than two decades after Roe, was finally the order of the day."

His mostly critical attitude toward the Warren Court notwithstanding, Starr supports that Court's treatment of racial issues. Starr thinks that "equality triumphed" when the Court struck down official segregation on the basis of race. In his view, this was all to the good. Starr insists that equality has also triumphed on the Rehnquist Court, which has been increasingly skeptical of affirmative action programs. In its first confrontation with affirmative action in the famous Bakke case, which was decided in 1978, the Court refused to rule that such programs were always unconstitutional. The deciding vote, on the badly split Court, was cast by Justice Lewis Powell. Powell concluded that rigid quota systems were invalid, but that universities could nonetheless use race as a "plus" in admissions so as to promote the goal of diversity. In recent years, the Rehnquist Court has frequently struck down affirmative action programs, insisting that courts should apply to them the same "strict scrutiny" applied to other kinds of racial discrimination. Starr applauds this development. He urges that the Court has showed evenhandedness "in applying the equality principle" and has been "framing doctrine that could guide the lower courts — doctrine that clearly threatened racial preferences." Starr likes the Court's "demanding standard," which he sees as "the rigor of a lawyerly Court of lawyers."

It is in the area of federalism that the Rehnquist Court has been most aggressive. Since 1995, the Court has struck down at least nine acts of Congress on federalism grounds. In the most visible of these cases, the Court invalidated the Violence Against Women Act, concluding that Congress lacked the power to allow victims of sex-related violence to bring suit in federal court. Now the Constitution expressly authorizes Congress to regulate commerce among the states, and Congress expressly found that such violence has a clear connection to interstate commerce. But the Rehnquist Court was not convinced. "It surely appears to the Rehnquist majority," Starr observes, "that Congress acts as though its powers were not limited by the Constitution, as though it could legislate on any subject it chose."

Starr seems enthusiastic about the development of greater limits on the powers of the national government. He refers with apparent approval to Chief Justice William Rehnquist's concern "that the modern Congress often rushes to pass a law in order to appear responsive to whatever problem seems to have caught the public's attention." As Starr notes, the pivotal votes on the Court are provided by Justices Sandra Day O'Connor and Anthony Kennedy, who qualify, in his account, as moderates who seek "the protection of the federal structure ordained at the founding."

This, then, is Starr's portrayal of the Rehnquist Court — as a set of cautious, incremental, lawyerly judges, very different from their more willful and reckless predecessors on the Warren Court. The portrayal is not entirely groundless. And of course fidelity to the law matters a great deal. But something is missing. The most obvious difference between the Warren Court and the Rehnquist Court is that the former was liberal and the latter is conservative. With his celebratory references to "restraint," "rigor," "equality," and the "lawyerly court of lawyers," Starr obscures this difference. There is something mildly Orwellian about all this.

Consider some examples. Starr thinks that with respect to affirmative action the Rehnquist Court has "proved more restrained than the Warren Court would have been," because the Rehnquist Court has generally struck down laws that "allocate opportunities with race in mind." This is very odd. In almost all of the relevant cases, affirmative action programs have been devised and approved not by courts but by Congress, state legislatures, or the executive branch of government. When the Rehnquist Court invalidates programs that require affirmative action, the Court is rejecting the views of the elected branches of government. What is "restrained" about that? Sensibly enough, Starr defines restraint as "the principle that unelected judges should be highly deferential to the judgments of the political branches." Then how can it be "more restrained" to strike down laws than to uphold them? Of course it is possible to think that affirmative action programs are bad, but the Constitution does not clearly outlaw them; on the contrary, the relevant history strongly suggests that those who wrote and ratified the Fourteenth Amendment did not mean to prohibit race-conscious programs designed to benefit African Americans. If the Warren Court were to have allowed such programs, it would have been far more "restrained" than the Rehnquist Court, which consistently strikes them down.

The same problem infects Starr's discussion of the Boy Scouts case. Recall that in that case the Court invalidated a New Jersey law forbidding all organizations, including the Boy Scouts, to discriminate against homosexuals. Starr reports that "this was the cautious prudent Court unwilling to rock the boat." He adds, with an evident sense of celebration, that because "the stakes were high, the Court would show restraint." This is almost comically sloppy. Nobody was asking the Court to rule that homosexuals have a constitutional right to be free from discrimination. Nobody claimed that the Constitution requires the Boy Scouts not to discriminate against homosexuals. On the contrary, it was the Boy Scouts who were asking the Court to intervene, to use the Constitution to strike down a law enacted by the elected representatives of New Jersey. In invalidating the New Jersey law, the Supreme Court might have been right; but it is ludicrous to say that the Court showed "restraint." Here, as in the context of affirmative action, Starr uses the word "restraint" as a kind of all-purpose word of approval, a guaranteed applause line for decisions that he likes.

Starr is right to say that in an important sense the Rehnquist Court does consider itself "first among equals." The Court does not like to defer to other branches of government. Bush v. Gore is only the most visible example of the Court's readiness to step into the political domain. In fact, Starr understates the Court's self-confidence. On an annual basis, the Rehnquist Court has struck down more federal laws than any other Court in the last half-century — and very possibly more than any other Court in the nation's history. So much for restraint. This is a remarkably bold Court.

But Starr also insists that, compared with the Warren Court, the Rehnquist Court is moderate, cautious, and lawyerly, and here things are more complicated. To be sure, the Rehnquist Court, led here by Kennedy and O'Connor, does tend to issue narrow rulings, usually limited to the facts of the particular case. But a skeptic would emphasize another point. Key decisions of the Warren Court fit with the agenda of the moderate (and sometimes not so moderate) left; key decisions of the Rehnquist Court fit with the agenda of the moderate (and sometimes not so moderate) right. Where the Warren Court struck down school segregation, the Rehnquist Court strikes down affirmative action programs. Where the Warren Court vindicated the rights of political dissenters, the Rehnquist Court protects commercial advertisers and strikes down campaign finance regulation. Where the Warren Court authorized Congress to enact civil rights acts, the Rehnquist Court strikes down the Violence Against Women Act and the Religious Freedom Restoration Act. Where the Warren Court protected the associational rights of the National Association for the Advancement of Colored People by forbidding Alabama to require disclosure of the names of its donors, the Rehnquist Court protects the associational rights of the Boy Scouts by forbidding New Jersey to ban discrimination against homosexuals. Where the Warren Court invoked a principle of political equality to forbid poll taxes and to require "one person, one vote," the Rehnquist Court invokes a principle of political equality to forbid manual recounts (and thus to ensure the election of George W. Bush).

Looking just at results, the skeptic might find it revealing that while Warren Court decisions often resembled Democratic Party platforms in the late 1960s and early 1970s, Rehnquist Court decisions are not infrequently in line with Republican Party platforms in the 1980s and 1990s. Certainly I do not claim that this kind of crude skepticism tells us all or most of the story. Law matters, and the decisions of the Supreme Court are not political in any simple sense. Sometimes justices do vote in a way that violates their ideological convictions. But in many significant cases, the Constitution and judicial precedents are ambiguous, and hence justices have room to maneuver. In such cases, even the most lawyerly justices are likely to be affected by their general views about equality and liberty. Much of the time, conservatives and liberals are going to think differently. Yet Starr says remarkably little about the significant ideological differences between the Warren Court and the Rehnquist Court. His talk of "restraint" and "moderation" obscures those differences.

Would Starr argue that the Rehnquist Court is simply applying Warren Court decisions, and doing so neutrally? This would be a real stretch. In striking down affirmative action programs, the Rehnquist Court has re-interpreted the Warren Court's equality decisions; it has not merely applied them. In giving constitutional protection to commercial advertising, the Court has not applied but overruled Warren Court decisions. And in striking down acts of Congress on grounds of federalism, the Rehnquist Court has repeatedly deviated from the Court's own precedents. Indeed, the Court's new federalism decisions suggest a project as ambitious, in its way, as many of the projects of the Warren Court itself.

Perhaps Starr would respond that the Court's decisions are not only incremental but also carefully reasoned. Here, too, there is a great deal of truth. It is certainly true that the conservatives on the Rehnquist Court, more than the liberals on the Warren Court, usually attempt to ground their decisions in the text and the original understanding of the Constitution. The difference should not be overstated, because text and history mattered to the Warren Court too; but the difference is real. Should we conclude, then, in line with Starr, that the Warren Court was a bit reckless and a bit lawless, whereas the Rehnquist Court is lawyerly and cautious? Would it be more illuminating to emphasize this difference rather than the simple fact that the Warren Court was dominated by liberals and the Rehnquist Court by conservatives? I don't think so. To its credit, the Rehnquist Court does emphasize text and history, but this emphasis does not fully explain the pattern of decisions that I have described. When text and history are ambiguous, political convictions matter too.

Starr insists that the Rehnquist Court is dedicated to three general principles: equality, individual conscience, and judicial restraint. There are big problems with this claim. Couldn't the Warren Court, no less than the Rehnquist Court, be said to have been dedicated to equality, respect for individual conscience, and judicial restraint? The Warren Court tried to promote equality by invalidating racial segregation and promoting the rights of the poor. By consistently protecting political dissenters, the Warren Court showed respect for individual conscience. By allowing Congress a great deal of room to maneuver, by upholding restrictions on commercial advertising, and by allowing a great deal of government regulation, the Warren Court showed restraint. Any Supreme Court within the last hundred years can be shown to have respected, at least some of the time, the principles of equality, individual conscience, and judicial restraint. In suggesting that respect for these principles makes the Rehnquist Court distinctive, Starr is unconvincing.

Yet the most serious problem goes deeper. Simply as a matter of logic, a court cannot be consistently committed to equality, individual conscience, and judicial restraint. A Supreme Court that insists on judicial restraint will generally uphold duly enacted laws. It will uphold them even when people complain that they violate equality or intrude on individual conscience. A Supreme Court that insists on equality, or on respect for individual conscience, will strike down a lot of laws, and hence refuse to show restraint. In any case the relevant ideals are contested; is equality promoted or undermined by affirmative action programs? It is worse than unhelpful for Starr to try to explain the work of the Rehnquist Court by invoking these vague and contradictory ideals.

Writing in the early part of the twentieth century, the American legal realists argued that general principles do not decide concrete cases; that what judges say is less important than what they do; that it is necessary, much of the time, to ask whose interests are served by one or another set of outcomes. By treating legal reasoning as a mere facade, the legal realists overdid it. And the Rehnquist Court is certainly far from lawless. But Starr's charitable and cheerful account, emphasizing the "lawyerly" qualities of the current justices, obscures a disturbing point. Too much of the time, there is an unmistakable connection between the Rehnquist Court's reading of the Constitution and the political commitments of the Court's most conservative members.


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