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In the Balance: Law and Politics on the Roberts Court
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4 of 5 people found the following review helpful
on November 8, 2013
This book provides a fascinating look into the workings of the Roberts Court over the past few years. Tushnet explores the legal arguments and political maneuverings behind cases involving issues such as Obamacare, gun rights, affirmative action, free speech and campaign finance. He also provides insight into the judicial appointment process and describes how conservatives have managed to develop a legal theory that has come to dominate US constitutional jurisprudence. The book is written in clear and plain language, and is highly readable.

Tushnet's central thesis is that the outcome of politically controversial cases cannot simply be attributed to the justices' politics. This is because it is sometimes unclear whether a particular outcome will benefit the Republicans or the Democrats. His argument is that some cases are better understood as having been decided on the judges' view of the legal merits, which is in turn shaped by their judicial philosophies. While these philosophies could be described as being "conservative" or "liberal" in nature, the application of these philosophies in particular cases sometimes produces results that deviate from the corresponding partisan agenda of the day.

However, it is not entirely clear why Tushnet thinks that the Supreme Court is or will be shaped by a battle for intellectual dominance between Roberts and Kagan. He provides little support for this hypothesis - in most of the cases he cites, there is no evidence that Kagan played a leading role in pulling the votes or marshaling the arguments for the liberal camp. In fact, I would say that the book description is misleading in this regard because Tushnet does not explore this issue in much depth, so readers who pick up this book because they are interested in this particular issue will likely be disappointed.

Finally, please ignore the absurd review by "Babs" who is not just guilty of giving a bad review to a book that he/she has not read simply because he/she disagrees with the author's politics, but also of getting the author's politics completely wrong. Having read the book, it is clear that Tushnet has liberal, not conservative, leanings. Furthermore, he is not uniformly liberal-leaning - for certain cases, such Citizens United, he seems to favour (what is usually thought to be) the conservative position. That said, I found him to be fairly even-handed in presenting the arguments for both sides of each issue, regardless of his own views.
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VINE VOICEon February 11, 2014
A new book on the Supreme Court by Mark Tushnet is always something to look forward to reading. This volume is no exception. Tushnet, now at Harvard Law School after many years at Georgetown, is one of the most perceptive and informative students of the Court now writing. He shares some important insights in this study. One of his most interesting findings is that the Roberts' Court going forward will involve intense competition between the Chief and Justice Kagan for control of the Court. While as is to be expected Tushnet covers much of the same ground as Marcia Coyle in her recent excellent book, he does so in unique ways and from different perspectives so that his book is no rerun.

First off is an excellent discussion of the Obamacare decision and what may have motivated Roberts' surprising vote to uphold. Tushnet suggests that Roberts had not made up his mind by the time he had to vote, rather than as many argue he changed his vote for whatever reason. Many of us feel, however, his vote was an effort to avoid the Court receiving a massive "blackeye" had a bristling conservative decision terminated the statute. But all of this is thoroughly examined by Tushnet, who finds the tax rationale "plausible." A chapter is next devoted to the importance of appointments. The Roberts Court really began to take shape with the appointments of Alito and Sotomayor. And it is one of the author's persistent themes that the character of new appointments to the Court plays the major role in shaping its decisions. Given the issue of whether the Democrats will maintain control of the Senate after the 2014 midterms, this point is particularly significant.

Tushnet argues that the initial two years of the Roberts Court reflected more harmony, fewer 5-4 decisions, and less frequent dissents and concurrences than with the Rehnquist Court. But then with the more moderate O'Connor retiring, replaced by Alito, the character of the Court changed, and the role of Kennedy became more significant. The majority began to utilize procedural devices to place barriers to block certain types of cases, and more overruling of past decisions became evident. Interestingly, Tushnet argues that even in these earlier years, Roberts would sometimes vote liberal in order to overcome divisions within the Court. Perhaps he was trying to implement his representations to the Senate Judiciary Committee during his confirmation hearings which seemed to suggest that he wanted a more moderate and balanced Court, more inclined to defer action, than had been the situation under Rehnquist. Given his Obamacare vote, this observation by Tushnet is quite interesting.

Tushnet's chapter on the gun rights case is particularly effective, not only in explaining the legal issues in an understandable manner, but also because it is a small case study in how interest groups organize and push cases to the Court for resolving key issues. Here marks the emergence for the author of "originalism" as an interpretive approach, and he has some interesting observations to offer on this method. Discussing the contention that Roberts leads a "pro-business" Court, Tushnet examines a number of these alleged cases and concludes that this charge is reasonable accurate, but sometimes there are just legitimate differences in interpreting and applying Congressional statutes, some of which are designed to help business. His chapter on free speech decisions demonstrates just how complicated this area is.

Speaking of complicated areas of the law developed by the Roberts Court, Tushnet's chapter on the Citizens United campaign finance decision is so well done I almost began to understand what all the shouting is about. But it is not an easy chapter to digest and perhaps there is a bit too much complexity and detail--but it is a noble effort nonetheless. In conclusion, Tushnet suggests that a "canny" Roberts is playing a careful game to maximize his eventual control of the Court, given his relatively young age in comparison to Scalia, Thomas and especially Kennedy. But again, he raises the specter of Kagan as the spoiler to this pleasant vision for Roberts.

As always, Professor Tushnet has done his research, as the volume's ample notes attest. He is more inclined to tackle legal issues than Coyle, but this is his bailiwick so does it well. A book that so stimulates thinking about the Court is to be commended; this is just such a book.
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on May 3, 2014
It is an easy reading for those non-attorney in order to understand our judicial system. Prof. Tushnet explains thoroughly the Roberts Court in those cases that detour from the Warren Court or liberal view of some justices. I strongly recommend this book now more than ever since the latest cases decided on political parties money contributions, free speech, affirmative action, and TV Broadcasting (Aereo case).
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0 of 1 people found the following review helpful
on January 31, 2014
Mark Tushnet, a one time law clerk in the Supreme Court, is an outstanding Constitutional scholar who is able to convey fascinating insights about complicated issues in a manner that is engaging for lawyers AND non-lawyers. His writing is superb. It feels like he is in the room with the reader. Tushnet is able to connect the Roberts Supreme Court dots with depth. By the end of the book the reader has a sense of the personal "chemistry" and trajectories of the Roberts Court.
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15 of 31 people found the following review helpful
on September 25, 2013
I haven't completed this obviously well-researched book yet, but I saw the author in an hour-long interview on C-SPAN's Book Notes. During the interview he said he said he thought the court needs someone besides an Ivy League-educated lawyer, which is what makes up the court now, and also indicated that the court needs religious diversity (it's Jewish and Catholic now). He said the ideal person would be Texas's U.S. Senator Ted Cruz. I think that says a lot about the author's political leanings (which are pretty apparent in the book, too). Well, at least he didn't suggest Ted Nugent.
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1 of 6 people found the following review helpful
on November 25, 2013
A book on "law and politics" should be a lot more interesting than this muddled book. The author gets himself into trouble right from the start when he seems unable to offer a clear definition of "politics." How is the Supreme Court political? To answer this, he ends up moving all over the place. At first, he offers (and then quickly rejects) a comically narrow definition of politics: that the Justices consider how their decision will affect an election. Then he seems to adopt then-Senator Obama's definition that 5% of cases are "hard cases" because "the constitutional text will not be directly on point" (xi). But then Tushnet seems to amend this by describing the most important cases as "politically salient" (xvii). (A "politically salient" case, needless to say, isn't necessarily one where "the text" isn't exactly "on point.") Eventually, he seems to settle down to defining politics as "politics of principle, of competing visions about the best way to arrange our government."

Unfortunately, the rest of the book doesn't even begin to explain "competing visions" for one simple reason: he never discusses liberalism. Although he can state in the preface that liberals and conservatives have "differing constitutional visions," the book is entirely focused on conservatives. The discussion of the Affordable Care Act discusses entirely conservative ideas about "judicial deference"; he never states what liberals think about this. His discussions of cases involving redistricting (pp. 115-17), the Clean Water Act (pp. 117-20), and the exclusionary rule (pp. 121-23) cover only the opinions of the conservative Justices. Tushnet merely relays that the liberal justices "dissented." Even when liberals win a case, as they did when considering the Military Commissions Act, Tushnet discusses how dissents by Scalia and Roberts contradict each other. Nothing at all is said about the majority opinion joined by 4 liberals.

This seems like a rather strange omission. After all, the four liberal justices are all bloc-voting in these cases. Something held them together. What was the "principle" or "vision" they claimed fidelity to? Sometimes, when Tushnet includes a quote from a liberal Justice, it is merely a couple of sentences, without context, that reveals little. For example, he quotes Ginsburg in her dissent of a Title VII employment discrimination case to the effect that a statute of limitations should be tolled because the plaintiff was "trying to succeed in a nontraditional environment,[and] is averse to making waves" (144). Is this the legal "principle" the liberal Justices pledge adherence to: SoL's should be tolled where someone is in a "nontraditional" environment and scared to "make waves"? I have no idea.

In Chapter 8, when Tushnet discusses the conservative interpretive theory of the constitution, "originalism," he has several tart observations about it (conservatives "massage the evidence"; it's a "Rube Goldberg" theory). But he never explains what the competing liberal interpretive theory is. That's a massive omission when you claim your book is about "competing visions" of the constitution.

If we really are, as Tushnet suggests, one Justice away from having a liberal majority on the Court, shouldn't the reader be given some idea of what liberal Justices believe? Of course, the reader can try to deduce "principles" and "visions" from how they voted; but it's difficult. The four liberals, for example, bloc-voted in favor of Obamacare, so perhaps they are judicial minimalists, giving deference to democratically-passed legislation. But on the other hand, they bloc-voted to strike down portions of the MCA, and they bloc-voted to strike down a Congressional partial-birth abortion ban, both of which were democratically-passed. Are the bloc-voting liberals not worried about the Supreme Court being seen as a "narrowly partisan body" (37)?

I agree with the other reviewer who laughs at Tushnet's hyping of Kagan as an "intellectual leader" on the Court. Of the cases he discusses, she authored only one opinion. But it's equally absurd for him to claim that Roberts is an intellectual leader when he clearly doesn't believe it. Throughout the book, Tushnet tips his hand; he has practically nothing good to say about Roberts. Roberts' writing and analysis is "clunky" (115); he responds "feebly" (43); his analysis has "no connection to the real world of practical politics" (126); his rhetoric is the equivalent of saying "Because I say so" (126); he has " a more explosive John Roberts held under tight control by the more polished persona [he] has developed" (69); he suffers from "quotability-itis" (146). Good grief. The only time Roberts rises in Tushnet's esteem is when he votes to uphold the Affordable Care Act. Is this why liberals bloc-vote to uphold Democrat-passed legislation but bloc-vote to strike down Republican-passed legislation: so law professors won't speculate about what "explosive" persona they have hiding under their polished exteriors?
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0 of 4 people found the following review helpful
on November 13, 2013
A bit dry but an interesting point of view. I enjoyed the various antidotes that the author used to present various points.
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