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Queen's Court: Judicial Power in the Rehnquist Era

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I found this to be a remarkably perceptive and unique study of the Rehnquist Court, with a much broader focus than just Justice O'Connor. The author teaches at Tulane and has written a prior book on the Justice in 1996, as well as articles and papers. The central point of analysis here is what the author terms the "choral court," i.e., the practice of extensive concurring opinions by individual associate justices which accompanied the Court's opinion in significant cases. Coupled with this are two other factors which the author discusses: fact-based, "rule of thumb" balancing, and an assertive philosophy of judicial power. The result was a Court that manifested case-by-case decisions, eschewed hard and fast rules, and employed vaguely-worded, fact-based tests which made it difficult precisely to grasp what the Court was holding. The author also discusses the reactions of a variety of Court commentators as to this development, reviews the period during which Justice O'Connor remained on the Court awaiting her replacement to be confirmed, and offers some predictions on whether the characteristics of the "O'Connor Court" will continue on under Chief Justice Roberts.

The author is always careful to delineate the issues she plans to address and how she plans to do it. For example, the introduction lays out virtually the entirety of what the book covers and how the analysis will proceed. To be sure, the author believes that Justice O'Connor was the most influential practitioner of the "rule of thumb" technique, which echoes other commentators' views that she was the real center of power in the last ten years or so of the Rehnquist Court (rather than the Chief). I am only partially convinced of this argument, but the author's analysis is truly impressive and thorough. The author extensively discusses cases in which the associate Justices applied this technique, which she characterizes as sometimes being "maddingly and misleadingly vague." Unlike many books on the Court, her discussion of cases is concise, to the point, and flows smoothly so the general reader is not lost in a flurry of legalisms.

I really feel the strongest section of the book is the chapter devoted to the views of commentators as to these practices of the Rehnquist Court. When you have Justice Breyer eschewing "exact formulas" in favor of fact-based, vague balancing, it is no wonder that many Court watchers had a lot to say. A most important concern is how can the Court render decisions which do not rely upon clearly articulated and firm principles? Did the Court fulfill its constitutional obligations to render decisions if they rest upon unique congeries of facts and reflect tests that maximize judicial discretion in rendering decisions? Are seemingly "unprincipled activist behavior" and "result-oriented pragmatism" the guidelines we want the Court to apply in its decision-making? It is no surprise that we started to hear a lot about "judicial minimalism" from these commentators. I think this is the real issue for reflection that the book forces the reader to consider--and in so doing, it renders a major service. The book runs under 200 pages, including notes, valuable bibliography, and index. Despite its concise size, the book is full of thought-provoking stimulants backed up with impeccable research and true insight into what occurred during the Rehnquist years.