A Court Divided: The Rehnquist Court and the Future of Constitutional Law [Hardcover]

Mark Tushnet (Author)

Book Description

ISBN-10: 0393058689 | ISBN-13: 978-0393058680 | Publication Date: January 2005 | Edition: 1St Edition

A penetrating exploration of the Supreme Court and its dynamics on the eve of Justice Rehnquist's retirement cites the division between its liberals and conservatives, documenting how the Court has promoted the economic agenda of today's conservatives while regularly defeating conservative social issues. 13,000 first printing.

Editorial Reviews

From Publishers Weekly

In this balanced, insightful assessment of the dynamics of today's Supreme Court (which may change very soon, with Chief Justice Rehnquist's illness), Tushnet, a constitutional law scholar at Georgetown, says that, in addition to the obvious divisions between conservative and liberal justices, fault lines have opened up within the conservative wing. On the touchy issue of judicial activism, Tushnet argues that all the justices are activists in pursuing their judicial goals. To explain the justices' activism and diverse agendas, the author delves into individual personal and intellectual histories. Each justice is profiled in relation to an area of constitutional law in which he or she holds distinctive views, such as Justice Scalia's search for absolute rules favoring free speech and Justice Ginsburg's concern with sex discrimination. Justices holding generally conservative opinions form a majority on the Court, yet only in cases involving economics has it produced results favored by the right. On hot-button social issues, like abortion, Tushnet concludes, the Court's conservatives have fragmented, leaving Roe v. Wade in place and striking down laws criminalizing homosexual conduct. Tushnet believes that these results accord with the politics prevailing in the country as a whole, where economic conservatism is ascendant but Americans are moderately liberal on social issues. In this calm, unbiased study, Tushnet explains clearly how and why the Supreme Court reflects the nation's uneasy political consensus.
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

From Booklist

Tushnet, a constitutional law professor, asserts that in a Supreme Court comprising a majority of justices appointed by Republican administrations, Rehnquist was the first to bring an extreme conservative perspective. He also asserts that despite arguments to the contrary, conservative justices have been just as activist as liberal justices, just headed in an opposite direction. Tushnet traces the rising judicial conservatism since the shift from Goldwater's to Reagan's influence on the Republican Party, through the administrations of Nixon and Bush I and II. Tushnet explores how the split within the Republican Party--between arch conservatives who favor big business, small government, and demonstrate what some consider insensitivity on social issues, and moderates who, though just as pro-business, are more sensitive on social, racial, and human rights issues--is reflected in the perspectives of the Supreme Court justices and the decisions they render, and the impact the overall conservative shift will have on the court in the future, as Rehnquist's retirement is considered imminent. Vernon Ford
Copyright © American Library Association. All rights reserved

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Product Details

• Hardcover: 416 pages
• Publisher: W. W. Norton & Company; 1St Edition edition (January 2005)
• Language: English
• ISBN-10: 0393058689
• ISBN-13: 978-0393058680
• Product Dimensions: 9.4 x 6 x 1.4 inches
• Shipping Weight: 1.4 pounds
• Average Customer Review: 3.9 out of 5 stars  See all reviews (10 customer reviews)
• Amazon Best Sellers Rank: #733,083 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

19 of 22 people found the following review helpful:

4.0 out of 5 stars Analysis of the members of the Rehnquist Court, February 17, 2005

By 

Eric Hobart (La Center, WA United States) - See all my reviews
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This review is from: A Court Divided: The Rehnquist Court and the Future of Constitutional Law (Hardcover)

Mark Tushnet subtitled his book "The Rehnquist Court and the Future of Constitutional Law". There is no question in my mind that he has attempted to provide us with a well researched book that addresses this very topic.

Tushnet only looks at the Supreme Court under the guidance of William Rehnquist, the current Chief Justice (although, as is pointed out in the book in no uncertain terms, he will not be Chief for much longer because of his medical ailments).

There is no doubt that Rehnquist is a brilliant justice and a highly qualified leader; he does not permit long winded discussions of cases that lead off onto unrelated tangents, and he runs a pretty tight ship.

The book looks at each of the nine justices currently sitting on the court (Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer, & Ginsburg), although the author pays more attention to certain justices than others. For example, Clarence Thomas gets an entire chapter devoted to his judicial philosophy and his conservatism. Scalia and Kennedy likewise get chapters devoted mostly to their judicial philosophies. Other justices, such as Souter and Breyer, get very little attention in this book.

I enjoyed reading the book - it gave me much more respect than I had for at least one of the justices, although it lessened my respect for another of the justices. Tushnet does give us a relatively unbiased picture of the justices, and does a spectactular job of explaining what makes the justices "tick" (when he devotes enough pages to that individual member of the court).

There are two things that I would change about this book, although neither of them should deter anyone with interest in this subject matter from reading this book. The first is that the entire book (with the notable exception of the final chapter, which addresses what is likely to happen in the future) is written in the past tense. It is almost like we're reading about justices from the middle of the 19th century that have all been buried for 100+ years. I feel as though the justices should be given more present tense treatment. The second thing I would change is the unequal amount of discussion time each justice receives. Let's hear more about Breyer, more about O'Connor, more about Souter. Those three make up 1/3 of the court, they should make up 1/3 of the book - especially since O'Connor is so frequently a swing vote on the court.

I enjoyed the book tremendously, and would highly recommend it to anyone.

7 of 7 people found the following review helpful:

5.0 out of 5 stars A refreshingly brilliant and informative journey of the current Supreme Court, July 27, 2005

By 

Igor Faynshteyn (Brooklyn, NY United States) - See all my reviews
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This review is from: A Court Divided: The Rehnquist Court and the Future of Constitutional Law (Hardcover)

Mark Tushnet is absolutely terrific in translating what seemingly is a difficult subject into common and simple terms understood by the general public. However, the subject of the book is far from simple to interpret and analyze.
Mark Tushnet gives a brief biography as he introduces each one of the justices (although some justices get more attention than others, probably due to importance and etc). Putting this biographical touch almost inevitably leads one logically to see how the life experience in the past shapes one's opinion for the future. For each justice and given theme throughout the book, he cites numerous cases, explaining them thoroughly and in simple terms, interpreting their relevance, citing the justices' opinion and noting their outcome as well as their implication as precedence in future cases. This way, the reader gets a broad perspective of the law, not only of its present effect but also of future influence. Mark Tushent doesn't miss anything including the big and divisive cases like Roe vs. Wade (abortion), religion in schools and public squares, affirmative action programs, civil rights, criminal justice and much more.

It's also notable that Mark Tushnet abstains from political bias and opinion, writing in a very objective and straight forward format. All in all, a GREAT read, very educational and informative... and more importantly, its for everyone.
I am a biology major, but enjoyed this book more than many in my field.
Highly recommended!

3 of 3 people found the following review helpful:

4.0 out of 5 stars The most readable book on the Rehnquist Court so far, January 14, 2006

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R. Price "caesar_42" (Liverpool, New York) - See all my reviews
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This review is from: A Court Divided: The Rehnquist Court and the Future of Constitutional Law (Hardcover)

Tushnet explains the nearly 20 years (at time of writing) history of the Rehnquist Court and argues that while it has not produced the conservative constitutional revolution that many predicted in the mid-80s, the groundwork has been laid for such a revolution to occur in the future. Who sits upon the Court in the future will determine the result of the Rehnquist Court. Tushnet argues that the revolution has failed because of a division between the traditional small-government, business oriented conservatives (O'Connor, Kennedy) and the modern social conservatives (Scalia, Thomas).

In terms of coverage, Tushnet hits all the major areas: equal protection, gay rights, crime, federalism, takings, first amendment, etc. He covers each of these fairly and notes when the doctrines and arguments are weak. Most interestingly, Tushnet argues that Scalia often produces weaker constitutional arguments because he prefers the quotable punch lines over exacting legal language. Instead of relying on Scalia for leadership, Tushnet argues that modern conservatives should turn to Thomas because he often produces stronger constitutional arguments that lay a foundation for future change that Scalia has demonstrated little interest in.

In sum, Tushnet has written a strong introduction of the Rehnquist Court. Nothing in here will surprise anyone with familiarity in the subject, but for constitutional novices this is the best start for the modern Court. In particular, I recommend it highly for students about to take their first year of Constitutional Law because Tushnet presents all of the modern developments in clear, accessible language and he presents the various doctrines of importance.