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First Among Equals: The Supreme Court in American Life

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To write a one-volume summary about the US Supreme Court and its major lines of jurisprudence over the last fifty years is no easy task. Yet, Judge Kenneth Starr is more than up to the task in "First Among Equals," recently released in paperback.

Starr is a brilliant legal mind and has had a stellar career in the law, whatever venomous nonsense you may have heard from James Carville. He brings his insight and experience into this book, writing a short introduction to some of the landmark cases during the tenure of the Great Chief Justice John Marshall, followed by short biographical sketches of the Court's current roster. Starr then provides sharp and succinct analysis of constitutional case law concerning a variety of issues, such as affirmative action, the rights of criminal defendants, the powers of the President, and federalism. The concluding chapter is devoted entirely to Bush v. Gore (2000).

Much of Starr's analysis describes the cases and views of the justices in light of the two competing judicial philosophies adhered to the respective members of the court: textualism and common-law constitutionalism. As Starr notes, Justice Antonin Scalia has been a champion of textualism, an approach to statutory and constitutional interpretation that requires a jurist to discern the meaning of the text, according to its structure, history, logic and original understanding. Textualism is often wrongly confused with "strict constructionism" or an attempt to discover what law was "intended" to mean in the minds of those who made the law, rather than the search for the meaning of the words actually adopted.

This judicial philosophy stands in contrast to that of common-law constitutionalism, in which constitutional law is created through judicial decision-making by judges in individual cases, with the constitution's text and its original understanding holding a less prominent position. This judicial philosophy is all but synonymous with the "living Constitution" concept, which holds that our "understanding" of the Constitution's meaning "evolves" over time as our society continues to "evolve." The values that underlie Constitution are to be expounded by the judges based upon the ideals of the contemporary age.

Starr spends a great deal of time in the First Amendment realm. ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.) There is obviously much room to work with here, and Starr ably describes recent developments in the areas of free speech and religious establishment jurisprudence.

One important development is the increasing role of "viewpoint neutrality" in the context of religious speech. This simply means that speech involving religious perspectives is to be treated on an equal footing with secular viewpoints. He also delves into the Court's modern Establishment Clause jurisprudence, which began with Everson v. Board of Education (1947). It was there that the Court held that the First Amendment's Establishment Clause applied to the states as well as the federal government, that the Amendment erected a "wall of separation" between church and state, and that both are to be entirely neutral towards religion and irreligion. On its face, this may seem entirely acceptable and consistent with the recent developments in "viewpoint discrimination" cases, but a number of cases decided in Everson's wake tell another story, in which those with religious viewpoints have been subjected to much discrimination, with providing an approving nod.

Starr hoped that the Court would reverse itself in this area, when as Solicitor General he argued the case of Lee v. Weisman (1992). The Court did not see things his way. Indeed, in Santa Fe Independent School District v. Doe (2000), it was held unconstitutional for student-led and student initiated prayers before a high-school football tame. In a biting dissent, Chief Justice William Rehnquist opined that "the majority opinion bristles with hostility to all things religious in public life."

Starr also focuses upon the issue of campaign finance reform. He served as Chief Justice Burger's clerk when the Court decided Buckley v. Valeo (1976). In that case, the Court dealt with a campaign finance reform bill passed by Congress that regulated the amount of money that could be contributed to and spent by political campaigns. The Court upheld contribution limits, per candidate, per election cycle, as well as public financing of campaigns, but it struck down provisions limiting how much money campaigns could expend. How are limits on contributions legal while limits on expenditures illegal? As Starr poignantly asks: "Isn't an expenditure the flip side of a contribution? Shouldn't they rise and fall together?" The Court upheld a similar state statute in Nixon v. Shrink Missouri PAC (2000), with the majority asserting a policy judgment that such laws protect the integrity of the process. Starr does not hide his disdain for campaign finance laws, and happened to be involved in a recent case before the Supreme Court on the so-called McCain-Feingold campaign finance law that was decided since his book went to press.

Starr's book provides a solid and easy-to-read primer on the Supreme Court and some important decisions for the last half-century.

First Amoung Equals: The Supreme Court in American Life written by Kenneth W. Starr is a book that looks into the Rehnquist Court as he offers the reader an incisive and unpreedented view at paradoxes, power and the people who serve on the highest court in the land.

When reading anything about the law, lawyers tend to loss readers because they are lawyers and can't speak in simpler terms and understandable English... they used too much lawyerese. This book was refeshing in that it is highly readable and understandable making for a enjoyable read.

This book is divided into three parts and each part has chapters, all organized to get the reader up to speed. Starr begins this book with a thirty year evolutionary history of the Supreme Court with the Supreme Court then and now and then a chaapter on the Justices. We see that the Court decisions are fairly consistant... which I found to be surprising since the Warren Court and Burger Court were quite different in make-up.

The Rehnquist Court is different still... all stemming from the human side of the court as it shaped our laws.

Part two of the book looks at freedom of speach, the first amendment and politics, religion in the public square, parochial v. private schools, abortion, affirmaive action, gerrymandering, the exclusion of evidence from criminal trials, and Miranda. Granted there is a lot to cover here, but Starr makes the reading cogent and lucid so you can understand the complecxity and why things happen the way they do. Ever aware that his audience here are not lawyers, he gives us a compelling and supremely readable book.

Part three is about the powers and structure of American Government. Here we find out about the statutory conversation between Court and Congress, the Rehnquist Court and the Federal Republic, Presidents: the Court and the Executive Branch and of course, Bush v. Gore. Here again, Starr makes this enjoyable to read as he explains in a very readable terms as he sheds light on one of the most frequently misunderstood legal pillar of American life... as the Supreme Court goes, so goes much of our nation's culture, society and politics.

I found this book, first to be highly readable and understandable, next perseptive and brimming with insight. If you are looking for a book on recent history, (thirty years), about the Supreme Court this is your book.

How and why the Supreme Court impacts our lives is exposed. The negative impacts are great. Unfortunately, the book details numerous instances where even the Rehnquist court leaps above the constitution (a contract between the people and the government) and becomes the constitution in ways that a majority of citizens would be in opposition-if informed. This book may start the monumental task of informing. Hence, the title of the book. At the same time a significant minority favors the liberties and physical safety lost through the court. On page 184 is the following sentence. "The world of appellate judging is light years away from the realities of law enforcement on the street." In so many words, the observation is made about the high court in many other areas.

The people speak most powerfully to the government through the amendment process. Since the first ten amendments, the bill of rights, amendments have averaged one every 15 years. Amendment requires three quarters of the state legislatures to approve-- this is to limiting. This constraint could be modified by amendment or more unnerving-eliminated.

Considering the subject this book is shockingly easy to read and bursting at the seams with meaningful insights and authority. Decades of experience (in, around and before the high courts) entitles Starr respect on the subject. On Amazon.com the professional reviewer Ben Fein says: "Kenneth W. Starr's credentials for examining the U.S. Supreme Court are matchless." Clerk to Chief Justice Burger, solicitor general, five years on court of Appeals, practicing before the Supreme Court are the highlights of his authority. Reviewers that leap at the opportunity to brand the author of political right wing bias are not serving you well. No one is obliged to read only one book on the subject; this book should be on everybody's short list of worthy books on recent history. This book is not about Ken Starr. The book is about what the supreme court has been doing to you and other citizens and why you should care.

The individuals on the Rehnquist court are discussed in considerable detail. On average one or two justices are appointed each four-year presidential term. Once on the court their views frequently change defying presidential ability to influence the long-term. The changed Senate view toward rejecting nominees for political reasons may suffer the same fate. He observes that in the short run, objective review of the nominees has suffered.

Ken Starr shows us how the Supreme Court carved out its power over the law of the land. In chapter 5 (Religion in the Public Square.), Starr helps one understand how the supreme court, has taken its tortured journey in trying to define the First Amendment segment on religion. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." The supreme court's micro management of religion issues at the lowest local level takes some explaining as the book does. The effort may not be satisfactory to you. It appears to be the way it happened. Polls show that most people are religious in some form though frequently not participating in and organized religion. Religion studies are about seeking the unanswerable questions that are on every persons mind with usually searing interest. We have seen that the unprepared tend to leap at literal interpretations of ancient texts for easy answers. There ought to be a way to allow for the study of the seven great religions generally at an early level in our schools. This reviewer suspects the reckless ban now in place will not last.

The first amendment rights of the press are well articulated and deeply established in law and in USA culture. While the major media feigns accuracy in reporting, it goes no further than the immediate facts and leaves its premises and biases intact. One can dream of the day when the average citizen understands this protected and exalted position set forth in the constitution for the most lowly of media outlets and the most exalted. When most understand the rule of reader beware, much cultural progress could be made. As this book observes there is little room to see it otherwise under the constitution as it has been interpreted. The tyranny of the press will remain unchecked except by the consumer turning away from each entity one by one. While the press seems to have as a primary goal to tear down individuals in and out of the government and sell conspiracy and intrigue for the sake of readership, its potential for good were it more deeply informed remains considerable. It has had its periodic great moments in history. Moments that could come more frequently with a more meaningful education then journalism by most reporters.

The Supreme Court is trying to find that line of distinction between what the media does in its everyday treatment of "news" and information disseminated during a political campaign. The Court seems to be grabbing onto the slogan "money is not speech". The trouble with that slogan is that the media dissemination of speech also has to be paid for by the media owners or indirectly the consumers of media. Neither court nor congress has the lofty god like ability to define good money from evil money. If the press can speak with out being accountable to any one other then another media form, surely another source of speech should be held to no higher standard then being accountable to media disclosure and harassment. The chapter on politics, money and the first amendment is exquisitely timely.

My main complaint it lacks a solid explanation for the courts commitment to stare decisis as opposed to setting rulings right where the current court sees it differently. After all it is the highest court in the land. Numerous other topics are detailed in the book. School vouchers, separation of church and state, Gore Vs Bush, exclusion of evidence, abortion, and affirmative actions are a few. Gerrymandering to create minority safe congressional districts is fascinating and raises many questions. This book is a high quality offering on vitally important issues by someone that reveres the Supreme Court.

Kenneth Starr's "First Among Equals, the Supreme Court in American Life" offers a conservative view of the dynamic workings of the Supreme Court. Mr. Starr was a Supreme Court clerk of Chief Justice Warren Burger. He spends some time discussing different justices approach to interpreting the Constitution. He seems to favor the strict constructionist or textual approach followed by the likes of Justice Scalia. However he points out that other justices may take a historical view and follow the rule of stare decisis. He shows the least regard for the "living Constitution" approach.

The Courts approach to some of the major cultural issues of the past fifty years are covered. First Amendment free speech issues from flag burning to campaign financing are covered. There are chapters on church and state issues, abortion, affirmative action and equal representation in the political process. His views are critical of the Warren Court's expansion of the protection of criminal defendants rights under the fourth and fifth amendments as well as the Warren court's tendency to usurp the legislative function. The final four chapters cover the courts roll in defining the relationship between the different divisions of our government. Here he covers issues of federalism and the relationship of the Court to Congress and to the executive branch. He devotes very little space to his own investigation of Bill Clinton but devotes most of the chapter on the relationship of the court to the executive branch to developing the proposition that the President must stand before the bar of justice just like anyone else. The final chapter is devoted to the issues (Constitutional or not) raised by the Bush vs. Gore controversy and is very enlightening.

This book is written decidedly from the right but well worth the read.

First, who the author is should not be an issue to a reviewer or potential reader. Those liberals that loathe Starr would be well-served to read this book if they want to understand how a judicial conservative thinks. Those liberals wanting mindless rhetorical support of their judicial philosophy, look elsewhere.

But for what it's worth, Starr has been discribed as a "moderate" by the legal titan Judge Posner. As the title of my review indicates, if one wants to understand judicial conservatism, then this is a great start--for the liberal or conservative or indepedent.

Starr draws on a lifetime of experiences--Supreme Court Clerk, Federal Judge, Solicitor General, Indepedent Counsel, and private attorney--to write this highly informative and illuminating work.

This book is a perfect primer for someone who wants to understand judicial conservatism--liberal or conservative alike. While Starr is certainly a judicial conservative, there is no attempt to cloak his bias as objective fact. It's clear at every point when Starr criticizes a decision why he thinks it's wrong. One is free to critique his analysis on their own.

This book covers the big Warren Era decisions and why many conservatives were concerned and dismayed with many of the Court's rulings during (and after) that era. Perhaps more important than the judgments themselves is the methodology the Warren Court employed. That is, the Court seemed unwilling to put the Constitution itself in the foreground, instead preferring to implement their political whims and specific social agenda. Mapp v. Ohio. Miranda v. Arizona. And, of course, Roe v. Wade are discussed.

Starr then goes on to discuss how the Court has changed--to a distinctly more catious, deliberative, lawylerly, and scholarly direction. He discusses the individual justices as well, which are the most influential, etc. One gets a feel on how each justice approaches constitutional interpretation.

The Rehnquist Court and its jurisprudence are discussed in detail, and the author's many personal experiences during this era (Judge, Solicitor General) provide many useful tidbits of information. Speaking not of what he read heard, but what he personally experienced makes this book more readable than many others in the same category.

Recent Rehnquist Court decisions on Affirmative Action, abortion, criminal procedure, gerrymandering, First Amendment rights, and much more are discussed. Starr probes the central question: how is the Rehnguist Court different than the Warren and Burger Courts? He provides many useful insights and analysis on this question.

First Among Equals is light on meaningless rhetoric and heavy on facts and analysis, but always eminently readable. Strongly recommended.

Ken Starr may best be known for his role in the attempt to end Bill Clinton's presidency through impeachment, but to this book he brings a real expert's background because of his experience in the office of the Solicitor General (the chief lawyer for the U. S. Government) and on the Circuit Court for the D. C. Circuit (the level just below the Supreme Court), both of which gave him a reason to interact directly with the Justices of the Supreme Court.

While Starr goes back to the beginning, especially the 1803 case of Marbury v. Madison, where the Supreme Court first asserted its right to make the ultimate decision as to what is constitutionally permitted and what is not, his primary focus is on the recent history of the Court, after the death of Earl Warren. He goes into what the Court has decided in the Burger and Rehnquist years, and even more importantly, the judicial philosophies of the Justices who have served in these years, and how those philosophies caused them to decide cases the way they have.

The book ends with the 2000 election and the Bush v. Gore decision, which overruled what many feel was an unjustified Florida Supreme Court decision and paved the way for George W. Bush's inauguration as President. This part of the book may be controversial to some, but it certainly shows that Bush v. Gore was well within the envelope of the kind of decision the Court has made in the past, despite protests by Gore partisans that the Court was acting politically.

I recommend this book to anyone interested in how the Supreme Court functions today.

Early in FIRST AMONG EQUALS Ken Starr describes President John Adams as a "virtuous, principled man, lacking in political skills." This characterization could easily be applied to the author himself. Starr, the independent counsel whose investigation in 1998 of the Clinton-Lewinsky mess led to the passage of two articles of impeachment in the House of Representatives, was famously demonized in a public relations war waged by his political enemies who sought to discredit him and his work as independent counsel. Four years later, Starr returns to the public arena as the author of a book about the Supreme Court, an institution he worked for as a clerk and appeared before in private practice and as Solicitor General under the first President Bush. The book opens a window through which Court observers --- casual and professional alike --- will gain insight into the Court's history, workings, and personalities.

In examining the Court over the last thirty years, Starr reviews the tools and methods the Court uses to decide polarizing cases involving abortion, criminal procedure, free speech, affirmative action and others. Starr, a political conservative, prefers decision-making processes that adhere to precedent, are firmly rooted in statutory or Constitutional text, and aspire to the unifying principles of equality and neutrality. In the 1960s, under Chief Justice Earl Warren, the Supreme Court was prone to --- in Starr's view --- the worst sort of activist decision making. The Warren Court acted not as judges but as liberal political reformers who, with "missionary zeal," sought to reshape society through a series of radical, constitutionally unsound decisions.

Although FIRST AMONG EQUALS includes no formal analysis of the Warren Court, Starr frequently references Warren for his lasting impact, especially with regard to privacy issues. For example, the right to abortion found in Roe v. Wade, which was decided after Warren left the Court, would likely not have happened were it not for expansive privacy rights first announced by the Warren Court.

Warren Burger sat as Chief Justice from 1969-1986. As a young lawyer, Starr clerked for Burger and he provides unique perspectives on opportunities missed by that Court. Burger, unpopular among his fellow justices, was a poor consensus builder. And Starr, to his credit, does not fail to harshly criticize his former boss for perceived failings. For example, Starr bemoans the fact that Burger was unable to muster the votes required to overturn the famous Miranda decision, which mandated that people in custody be provided with warnings aimed against self-incrimination. Starr almost relegates Burger to an insignificant figure when he indicates that it was Lewis Powell, not Burger, who commanded the most respect on the Burger Court. Powell, Starr claims, was the driving force shaping the issues at the time.

Starr himself served as a judge for five years on the U.S. Court of Appeals for the District of Columbia. He says he learned that honorable, disinterested judges are the ones who can vote against the people who helped put them on the bench. However, the current Supreme Court justices for whom Starr has the most praise --- Antonin Scalia and Clarence Thomas --- are the ones who consistently fail this test. Scalia and Thomas usually vote on the same side of most issues, and they almost always vote in a way that accords with the beliefs of their judicial patrons. Thomas is alleged by Starr to be an original thinker, brimming with ideas.

Yet Starr fails to provide examples of his originality. Rather, Starr cites numerous cases where Thomas predictably comes down on the conservative side of a given dispute. By contrast, Justices O'Connor, Kennedy, and the once ultraconservative Rehnquist have established credentials as innovative thinkers, capable of voting in ideologically surprising ways. Rehnquist, for example, adheres strictly to the principle of upholding precedent --- his instincts generally tell him to support existing case law for the sake of judicial consistency. To this end, he has a proven record of voting to uphold cases, like Miranda, which run contrary to his core political philosophy.

Starr clearly has personal preferences among members of the current Court, and he is not afraid to make plain his disdain for Justices Souter and Stevens. In a chapter discussing the Bush/ Gore election dispute, he relates an anecdote in which Souter comes across as unprepared and almost foolish, as one of the advocates for then Governor Bush corrects Souter on an obvious fact in the record. Starr has great respect for Justice Breyer's intellect and his ability to build consensus. Justice O'Connor is another favorite, who Starr calls the "most influential and powerful woman in America."

In the end, however, Starr's real favorite is the Court itself. FIRST AMONG EQUALS is his love letter to an institution he reveres. And this authoritative telling of some of its history adds greatly to the rich tapestry of Supreme Court literature.

--- Reviewed by Andrew Musicus

Mr. Starr's work offers an engaging and inspiring view into the nuances of the Court and the constitutional debates defining today's US society. Mr. Starr surgical overview of Roe has placed me in the uncomfortable position of having to examine my believes. The discussion about the Court's decision to engage into the Gore vs. Bush debate and the role it ended up playing, brings to light the main element that distinguishes us from most of the nations on Earth, we are governed by our laws. The book is so good, I'm reading it again!

I bought this book after seeing Starr on T.V. in a speach/question and answer forum about the book. In the forum, he spoke of how his editor kept sending the manuscript back to him insisting he remove the legal jargin that the general public would not understand. It was a success. As a non-student of law or courts, I got a huge education from this book. It was very readable and useful to understanding the Supreme Court and it's decisions for the last half of the century. He brings it all together showing how a series of decisions throughout the years led to the court taking the Bush Gore case and asserting itself as the most powerful branch of government as "first among equals."

Note: this is not a history of Starr or his involvement in the Clinton years. But he does draw on his experience as a law clerk, soliciter general, and appelate court judge to show his personal insight into the court.

I personally couldn't put it down until I was done reading it.

"First Among Equals" is an interesting book about the U.S. Supreme Court authored by an experienced legal practitioner - Kenneth Starr, who needs no introduction.

This book is intended for the lay person; it has no legal jargon and is very readable. It is organized around a set of constitutional issues as illustrated by what might be called some of the landmark cases pertaining to those issues. Starr manages to lay out highly legalistic issues in simple terms without diluting their significance, and in the process walks the reader through the history of the Court since the New Deal Court, all the way to the most recent Rehnquist Court decisions. The Court's history, as such, in large measure reflects the Nation's history as seen through the litigation of some of the most controversial issues - abortion, free speech, church and state, criminal justice, affirmative action, federalism, etc.

In telling his story, Starr puts great emphasis on the background and judicial philosophy of the individual justices, which puts a human dimension to an otherwise academic subject.

"First Among Equals" is a worthwhile effort that bridges a gap between the highly legalistic arguments and the ordinary people, whose life are profoundly affected by the decisions of the Court. For anyone who is interested in rendering after-dinner opinions on events in the political, social and legal landscapes, this book is an invaluable backgrounder.