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

This book deals with the Rehnquist Court up until sometime before the Presidential Election of 2004. The extraordinary stretch of incumbent justices (no changes since Breyer's confirmation in 1994) was still in progress, although we know now that it would not last for much longer. The author introduces all of what were then the nine justices, but some such as Thomas and Scalia definitely get more attention than others. Roughly the first half of the book deals in some way with the personalities of the justices; how their judicial temperaments and their politics have been shaped by their life experiences. The second half of the book concerns broad issues such as takings, federalism, and affirmative action. I found this second half a bit challenging to read, as it departed from the interactions of the justices and dealt with the abstractions of legal strategies and tactics and then the kind of manuevering through Constitutional Law that the justices do to validate their opinions. Still, it provides an introduction, though a bit burdensome, to the use of different kinds of "scutiny", "compelling interests" and balancing tests, and such concepts as "substantive due process." The author views the Rehnquist Court as basically a political struggle between the conservative Republicans (Rehnquist, Scalia, and Thomas) and the traditional Republicans (O'Connor, Souter, and Kennedy) with the more liberal members (Ginsburg, Stevens, and Breyer) more or less on the sidelines. The traditional Republicans have been especially pivotal in holding the line on social issues, particularly on abortion. And, on the whole they have managed to steer the Court not very far from the precedents set by the New Deal and the Warren Court. One of the major underlying topics is the question of interpreting the Constitution according to its original literal sense. In this regard, the author states that Clarence Thomas is the leader of the conservative cause, the most relentless of those rejecting a changing Constitution for changing times. This independence goes against the grain of public perception, which tends to see Scalia as the conservative leader after whose forcefulness Thomas follows. But Scalia is more likely to bend to precedence. As an example, Thomas would more readily change such New Deal government regulations that deal with agriculture and manufacturing because he believes that they cannot be regulated as interstate commerce. A characteristic of the conservative trend on the Court concerns the adherence to rules and the authority of text. It makes an outsider or a layman wonder a little bit about what happened to any passion for justice. Certainly, the United States is a nation of laws not of men, and the insistence on rules or laws is not such a bad thing. But when does insistence upon the letter of the law work at the expense of justice? Would the literalists ever have done anything to change the system of segregation? One wonders. The author points out that

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.

Tushnet's thesis, which is only of minor importance in the work, is that the Rehnquist Court is divided in its most interesting fashion not between liberals and conservatives, but rather between two different types of Republicans: moderates and conservatives. Perhaps it's true, perhaps not, but regardless, it's all the excuse one needs for this informative work. The book is organized into chapters concentrating on either a Justice or an issue of contemporary constitutional jurisprudence, organized without any rigid framework (nor does one seem required). Supreme Court law is the lawyer's Super Bowl; the trivia delights us because we know the players, hating some of them, worshipping others. This book satiates the urge: fun and fascinating factual nuggets abound. We learn about our Justices' lives, the wellsprings of their philosophies. Details are filled in about the plaintiffs and defendants of our landmarks. The style is accessible and intentionally so, I have no doubt. Legal analysis is light and briefly sketched. One needn't have the slightest bit of lawyerly education to get through the work. There is an undeniably liberal sheen to the work. I could fault the work for it--considered doing so--considering doing so even in spite of the author's belief (if my understanding of critical legal studies is correct) that neutrality is impossible, since I don't subscribe to that belief. But there's no need. Professor Tushnet gives as good as he gets: he scours Scalia (somewhat unfairly), but at the same time praises Thomas (almost to the point of condescension), and the liberal Justice Breyer doesn't escape unscathed. Professor Tushnet gives fair appraisals of conservative arguments and liberal rejoinders: we could ask more from the author, but not much more. All in all, an enjoyable work, and an excellent encapsulation of the high Court.

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!

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.