Is the High Court Too High and Mighty?

By Dan Carney


The Supreme Court in American Life

By Kenneth W. Starr

Warner -- 320pp -- $26.95


The Supreme Court and the Unmaking of American Law

By Martin Garbus

Times Books -- 322pp -- $25

Until the night of Dec. 12, 2000, books on the Supreme Court were a tough sell. Occasionally, a work such as Bob Woodward's 1979 The Brethren: Inside the Supreme Court would crack the best-seller ranks, thanks to the author's inside access. But most books dissecting the court's rulings attracted a largely academic audience. Then came the bombshell known as Bush vs. Gore, and the publishing world, like the rest of us, started taking a new interest.

Two prominent authors have taken advantage of this. Kenneth W. Starr, the conservative former U.S. Solicitor General, best known as Bill Clinton's onetime nemesis, now offers up First Among Equals: The Supreme Court in American Life. Martin Garbus, a prominent New York trial lawyer and First Amendment activist whose clients have ranged from comedian Lenny Bruce to author Salman Rushdie, has penned Courting Disaster: The Supreme Court and the Unmaking of American Law.

As one might expect, the two books are polar opposites. In First Among Equals, Starr is largely sympathetic to the court's conservative majority, led by Chief Justice William H. Rehnquist. Nevertheless, Starr adopts an objective approach that makes his the more engaging volume. Courting Disaster, on the other hand, is 300 pages of liberal fury directed at a court that's more and more willing to strike down acts of Congress, shield business from litigation, and undercut the liberal jurisprudence of the 1960s and '70s. Barely having cracked the book, one is confronted with the declaration that the court "is taking the republic away from us."

Yet for all of the differences between Starr and Garbus, a reader is struck by one glaring similarity. The authors both agree that the Rehnquist court has quietly amassed awesome power. This, after all, is a court that insists on being the final arbiter of all things large and small. From the powers of Congress vis-à-vis the states to the PGA's rules governing the use of golf carts in competition, the Rehnquist court has intervened often and with gusto. Perhaps it should be no surprise that the court would get into arbitrating contested elections, but even Starr finds this development a bit hard to stomach. The court, he says, "remains aloof from the strong sense that it had usurped power" in Bush vs. Gore.

Starr's title understates his case. The judiciary is not merely first among three equal branches of government. There's nothing equal about it: The Supreme Court reigns supreme. Much of this is due to the policymaking void the court finds itself in. Since Ronald Reagan's landslides of 1980 and 1984, the electorate has been loath to hand either party much of a mandate in the elected branches. The winning candidates in the past three Presidential elections all failed to win a majority of the popular vote. President Bush did not even win a plurality. Meanwhile, in the past two decades, voters have opted for divided government, allowing the President's party to control Congress for only slightly more than 10% of this period. Each time, the result has been a period of modest legislative accomplishment, measured mostly in adjustments in taxation and spending policy.

Into this void have stepped nine unelected jurists who have profoundly shaped national policy. Many things can be said of the conservative Rehnquist court: It has nibbled away at the scope of affirmative action programs. It has frequently thrown out regulations written by federal agencies. And--in its most profound body of rulings--it has greatly circumscribed the power of Congress to act, in fields ranging from crime-fighting to nuclear-waste disposal, on the grounds that these issues should be left to the states.

What it hasn't done, however, is trample on the sacred cows of more liberal eras. Roe vs. Wade, the controversial ruling creating a right to an abortion, still stands. So does much legislation of the 1960s. The court's vigorous interest in bolstering states' rights could be used to strike down laws as far-reaching as the Civil Rights Act of 1964. But so far, it has shown no interest in reversing such laws.

To Starr, this is evidence of restraint on the part of the court. While it is perfectly willing to assert primacy over other branches of government, it picks its shots carefully, he says. Garbus' reply is: Just wait. The conservative members, he asserts, have been quietly building up a head of steam to attack liberal achievements dating from the New Deal and Lyndon Johnson's Great Society. "They are creating a strong foundation for doing so through a steady accumulation of self-reinforcing and self-perpetuating precedents," he writes. With just one, or maybe two, more GOP appointments to the court, the nation's whole political landscape will shift, he predicts.

Garbus' book represents something of a trial run for liberal strategists. For years, conservatives have been more focused on the politics of judicial selection than have liberals. Republicans have been able to rally the faithful and raise money by railing against "activist" judges appointed by President Clinton. Liberals, in contrast, have been less successful at using the issue of judicial power as an organizing and fund-raising tool. Although Democrats have been able to block nominees, including Robert H. Bork in 1987, judicial politics has not resonated as much with the party faithful. Courting Disaster is an attempt to emulate the conservatives' tactics. As a polemic, it is highly readable. But anyone not interested in answering its clarion call will have a hard time believing many of its claims.

Garbus presents the court as a kind of unelected parliament, rather than a bench of jurists. Majority rulings these days, he says, are "based more on political power and less on legal reasoning." How, one wonders, does he know? Does he have secret meetings with the court's conservatives who tell him their rulings are a ruse for advancing their political agenda? He's particularly scornful of the court's states' rights rulings. "The new federalism is politically motivated," he declares. Its prime function is not to limit federal power but to insert the court into such legislative issues as crime-fighting, education, and abortion. These are suspicions widely held among the court's critics. But Garbus offers no evidence to bolster his assertions.

First Among Equals also has an agenda, even though it's somewhat hidden. From the outset, one is struck with an obvious question: Why is Ken Starr writing about the Supreme Court? True, he was Solicitor General--the government's advocate before the court--in the first Bush Administration. But here is a man at the center of a giant impeachment struggle--and his first book since could have been written by any law professor.

The measured tone of First Among Equals hints at an answer to this question. For the past three-and-a-half years, Starr has been trying to put the Clinton experience behind him. He has quietly resumed his appellate law practice, he teaches a course at George Mason University, and he says little more of his years as Independent Counsel than that he's glad they're over. This book is an attempt to show he is a thoughtful advocate, not merely a zealous prosecutor. That may be an impossible task, given the intense feelings that surround him. But he has at least produced a thoughtful account of the Rehnquist court. He actually makes a better and more believable case than Garbus for why liberals should be worried. Starr paints a picture of an assertive, audacious, even imperious court--and he's a guy who presumably agrees with many of its substantive rulings.

Other than thoughts about Bush vs. Gore and Roe vs. Wade (which he calls "unspeakably unacceptable"), Starr voices few opinions on individual rulings. Instead, he uses them merely to show how the court has asserted its dominance. Garbus would benefit from a little of Starr's approach. The Rehnquist court has clearly become a potent, even forbidding, force. That point is best made in a dispassionate fashion.

Carney covers the Supreme Court from Washington.

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