Politics by Other Means

By

First Among Equals:

The Supreme Court in American Life

by Kenneth Starr

(Warner Books, 320 pp., $26.95)

Click here to purchase the book.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."; "Nobody was asking the Court to rule that
homosexuals have a constitutional right to be free from
discrimination...."

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.

By Cass R. Sunstein

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