A Court Divided: The Rehnquist Court and the Future of Constitutional Law (Hardcover)

~ Mark Tushnet (Author) "As Richard Nixon was trying to decide whom to nominate to the Supreme Court in 1971, William Rehnquist joked to a journalist that he had..." (more)
Key Phrases: rational basis land, near beer case, federalism revolution, Rehnquist Court, African Americans, Religious Right (more...)

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.
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From The Washington Post

If there is one question about the Rehnquist court that maddens conservatives and titillates liberals, it's this: Why can't a Supreme Court with seven Republican appointees reverse the Warren court revolution once and for all? Why are affirmative action and abortion still the law of the land?

No one truly understands it, but partial explanations abound: Perhaps it's that jurists grow more liberal as they age; perhaps Chief Justice William H. Rehnquist (or alternatively Associate Justice Antonin Scalia) didn't have the acumen or temperament to truly steer the court the way Earl Warren or even William Brennan did; maybe failures in the judicial selection process led to "Borkings" (wherein great conservative jurists' nominations were quashed) and their inevitable by-product, "Souter-ings" (wherein sneaky liberals slunk through confirmation dressed as great conservative jurists). But perhaps the most widespread theory about the failure to roll back the legacy of the Warren court touts the hegemonic control exercised by the court's two "swing voters" -- Anthony Kennedy and Sandra Day O'Connor, frequently portrayed in the media as "swingers," both in the sense of being utterly unpredictable and of being wildly subject to external influences.

The legal scholar Mark Tushnet has another, more nuanced spin on the court's ideological inconsistency: A Court Divided attributes the failure of the Rehnquist court to act as a monolithic counterweight to the excesses of the 1960s and '70s to the fact that the court's conservatives are far from monolithic in their own ideology. Instead, they embody an unhappy marriage of "two types of Republican": those "speaking for the modern Republican Party, transformed by Barry Goldwater and Ronald Reagan" and more traditional Republicans sympathetic to the cultural and social issues "represented [by] an older Republican tradition."

This analysis is stated several times throughout the book, but never quite unpacked: Instead, A Court Divided is itself essentially divided into two books. The first half offers incisive and frank case studies of several (mostly conservative) jurists on the court, braided with lucid explanations of their key innovations. We are treated here to clear and revealing mini-essays about Scalia's views on free speech and Clarence Thomas's take on "originalism."

The second half of the book explores Rehnquist court advances (or retrenchments) in important areas of the law -- including abortion, affirmative action and federalism -- with Tushnet generally arguing that rumors of a Rehnquist revolution are greatly exaggerated. In his conclusion, Tushnet again takes up the question of the division among the court's conservatives to suggest that future vacancies may not provoke apocalyptic confirmation battles. The court, as he sees it, is essentially a moderate institution that -- with rare exceptions -- follows the policies and preferences of the elected branches of government and the electorate.

It's hard to agree completely with Tushnet's thesis about the reason Rehnquist -- who ascended to the chief's spot deeply disgusted with what he saw as the excesses of the Warren court -- failed to ignite a counter-revolt. Tushnet's claim that the rift behind the stalled revolution is a product of a culture clash between "old" and "new" Republicans can strain credulity. (For instance, it's hardly clear that "country club" Republicans like O'Connor and David Souter are benignly predisposed toward gay sodomy.) Nevertheless, A Court Divided is everything a book about the Supreme Court ought to be: clear, engaging, laced with gossip and mercifully uncluttered by footnotes, endnotes or string citations. It is, in short, a brisk ride through 30 years of high-court jurisprudence with a slightly mussed constitutional law professor in an open Jeep. Tushnet, who teaches at Georgetown University and clerked for Thurgood Marshall, makes the perfect tour guide through this sometimes dusty terrain.

For example, the radical shift in the court's federalism doctrine -- its counterrevolution against congressional overreaching in federalizing local law -- is clearly presented through the case of the alleged rape victim Christy Brzonkala, which led a divided court in 2000 to strike down portions of the Violence Against Women Act. Tushnet's gift lies in narrating from the ideal middle distance, making even four-part balancing tests accessible to the lay reader.

To be sure, he has made some odd stylistic choices, both in terms of organization and substance. The thematic division of the book into justices and areas of law obscures some fascinating implicit truths -- for instance, that so many of the Rehnquist court's key strikes against Warren court precedents have involved framing civil rights issues (including commercial regulation or government funding for religion) as simple free-speech contests. And Tushnet talks about the justices and their writings in an awkward past tense -- as though he couldn't trust that some, or even all of them, won't have keeled over between delivery of his final manuscript and his publication date. Moreover, his choice to focus in the first half of the book on the personal psychologies and preferences of the justices he profiles overemphasizes a point he downplays later: that for many of these jurists, personal preferences, experiences and predilections really do overwhelm their stated legal philosophies.

But A Court Divided is a brave book. As Tushnet goes out of his way to say in his introduction, too much lay writing about the court involves either "cheering or booing" its decisions, and such endeavors do little to help the public understand how the court works. Tushnet doesn't pull punches, stating flatly that "Antonin Scalia isn't as smart as he thinks he is" and even loosely ranking those justices who might give Scalia a run for his money in terms of sheer brainpower ("Rehnquist, Stevens, Breyer, Souter, and Ginsburg"). Tushnet is pitiless when it comes to condemning Scalia's abrasive, often abusive personal attacks, which he dismisses as "the sound bite style of Crossfire" and as less than intellectually persuasive to boot. But lest you suspect that he's advancing a canned liberal agenda, it's worth noting that Tushnet's most generous portrait by far is of Clarence Thomas -- a man whose legal work he characterizes as "more interesting and distinctive than what Scalia has done" and with "a greater chance of making an enduring contribution to constitutional law."

Mostly, this is a brave book because Tushnet isn't afraid to challenge the conventional wisdom, emanating now from both sides of the political spectrum, about the excessive powers of the high court and the doomsday that will follow any new appointments. Instead, he advances the notion of a "collaborative Court" in which "who is on the Court may matter less than what's going on in the political process." Perhaps the court is not driving national policy after all but taking its cues from the elected branches. Tushnet concludes that the Rehnquist court's "division between economic issues and social issues mirrored what was happening in politics generally: Conservatives were winning the economic war" but losing the culture war. (Indeed, they're losing that war because the country club Republicans won't stay on the reservation.) All of which means that recent efforts to remove the power of constitutional review from the courts, impeach "activist judges," limit judicial terms or exercise the "nuclear option" at confirmation hearings are misguided and unnecessary.

Whether, as Tushnet contends, the court is divided into old and new Republicans, into conservatives, liberals and swingers, into pragmatists and idealists, or into lovers of firm rules or squishy standards, the fact is that the Supreme Court is human, not divine. It need not be feared, bound or gagged in order to play out its constitutional role. A Court Divided goes a long way toward illuminating that truth.

Reviewed by Dahlia Lithwick
Copyright 2005, The Washington Post Co. All Rights Reserved.

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Product Details

• Hardcover: 384 pages
• Publisher: W. W. Norton & Company (January 30, 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.com Sales Rank: #941,528 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

18 of 21 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 (Gastonia, NC United States) - See all my reviews (REAL NAME)

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 (REAL NAME)

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

By	R. Price "caesar_42" (Liverpool, New York) - See all my reviews (REAL NAME)

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.