Starr's chamber: a skewed view

Edward Lazarus is the author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court." He is a lawyer in private practice.

First Among Equals

The Supreme Court in American Life

Kenneth W. Starr

Warner: 320 pp., $26.95


It is hard to imagine anyone with better credentials than Kenneth W. Starr to write a book about the modern Supreme Court. Before his controversial stint as the independent counsel investigating then-President Bill Clinton, Starr was (in chronological order) a law clerk to former Chief Justice Warren Burger, a high-ranking Justice Department official, a federal appeals court judge, the solicitor general of the United States (who represents the U.S. government before the Supreme Court) and a highly successful private practitioner.

This makes it all the more disappointing that, in "First Among Equals: The Supreme Court in American Life," Starr has produced a superficial, ideologically skewed and inaccurate portrait of the modern court. Although Starr professes to be writing a primer on the court and its place in American life, actually he has produced a conservative tract for nonlawyers, a simplified version of Robert H. Bork's "The Tempting of America" without that book's intellectual force and rigor.

Starr's broadest theme, captured in his title, is well chosen. Who can seriously dispute that the Supreme Court has emerged as preeminent among the three branches of our government? Although the court is the least democratic branch (its appointed members serve for life), we have come to accept, with barely a contrary murmur, that the court will be the final arbiter of many of our most vexatious moral and political disputes, including (so it seems) the election of our president.

The real question, though, is not whether the Supreme Court has assumed such power but what we should think about this arrogation. And in answering this question, Starr adopts a misleadingly selective and highly partisan approach to both the court's record and his views of the individual justices.

As his central thesis, Starr claims that the court under Chief Justice William H. Rehnquist for the last 16 years (in contrast to the court under Chief Justice Earl Warren from 1953 to 1969) is "a Court of lawyers" dedicated to the values of "stability, not change; moderation and incrementalism."

These claims are at best overblown. It is simply not true that this is a "Court of lawyers," except in the literal sense that (as has been true for generations) all the justices have law degrees. Actually, the current court is heavily weighted with academic and political types and boasts no one with the skills of the top lawyers from the Warren Court, such as Thurgood Marshall and Abe Fortas. Starr's praise of the Rehnquist Court as "moderate" and "less activist" than the Warren Court is also readily debunked. A common measure of a court's "activism" is its willingness to use the power of judicial review to override the judgments of the people's elected representatives by striking down the acts of state legislatures or of Congress. Activist courts invoke this power frequently. Less activist courts defer more to elected legislatures. Suffice it to say that the Rehnquist Court has struck down provisions of more federal statutes than any other court in at least 65 years and far more than the Warren Court that conservatives like Starr hold up as the symbol of the sin of activism.

Starr might be forgiven such misleading generalizations if his descriptions of the individual justices and the cases they've decided did not suffer from the same taint of ideological distortion. Comparing his thumbnail sketches of the most conservative and liberal justices is instructive.

Starr begins with a portrait of Rehnquist, the staunchly conservative Richard Nixon appointee who joined the court in 1972. Starr likes Rehnquist both personally and philosophically, and he glowingly describes Rehnquist's early years on the Burger Court, when, as the most conservative justice, he was often out of step with the judicial mainstream. To Starr, "Rehnquist was gutsy ... willing to stand up -- all by himself -- against the crowd of justices moving in a different direction."

Fair enough. But contrast Starr's loving portrait of the "lone Ranger" Rehnquist with his treatment of the current court's three most liberal justices, Stevens, Ginsburg and David H. Souter. No kudos for sticking with principle here. Instead, Starr scorns this threesome as "forlorn," "marginalized," "naysayer[s]," "predictable" and "unremarkable."

The same lack of evenhandedness infects Starr's analysis of the court's major decisions and spoils what otherwise would be valuable insights. For example, Starr shrewdly describes how the strong devotion of several justices to the principle of equality explains important shifts in the court's jurisprudence. For Starr, this is a welcome development. But Starr's endorsement of equality, like that of the court itself, is erratic and renders his discussion of the court's work woefully incomplete.

Take Starr's discussion of how the Rehnquist Court's allegiance to the principle of equality has substantially changed its approach to the question of whether government may underwrite the speech of religious groups, say by providing classroom space for Bible study or funding a student-run religious newspaper. Until recently, the court had held that government could provide no such support because to do so would violate the constitutionally required separation of church and state. But in a series of decisions that Starr enthusiastically embraces, the Rehnquist Court has invoked the principle of equality to reverse course and declare that religious organizations have the same right to express themselves as secular ones and, thus, must be provided space and funding on an equal basis. Simply put, in the court's view (and Starr's), the constitutional value of equality is so compelling that it trumps the constitutional value of separation of church and state.

Starr's celebration of equality here is hotly debated but certainly defensible. The deeper problem with Starr's analysis -- its unexplained inconsistency -- emerges a few pages later in his discussion of Boy Scouts of America vs. Dale, decided in 2000, in which the Boy Scouts asserted their right to expel a gay leader. Like the religion cases, the Dale case involved a clash of two constitutional values: the right of the Boy Scouts to control their own membership (their "right of association," in lawyers' jargon) and the right of the state of New Jersey to guarantee the equality of its citizens by outlawing discrimination in large private organizations.

Dale was a difficult case over which reasonable minds may disagree. But one thing is certain: You cannot fairly discuss it without coming to terms with the issue of equality (specifically the right of homosexuals to participate in Scouting on the same basis as heterosexuals) and why it should take a back seat to the associational rights of Boy Scouts. Yet Starr never uses the word equality in his discussion of the case. Instead, he weighs the associational rights of Scouts against the specter of an advancing "gay rights agenda" and applauds that the court refrained from "trampling over" the Scouts.

This stacking of the deck raises two problems. First, on a specific level, it suggests that Starr's allegiance to equality is limited to the equality of causes (like religious observance) to which he is devoted. When the cause is antithetical to Starr's view of the world, such as the issue of gay rights, the importance of equality gets nary a mention and that principle, so vital elsewhere, is silently subverted.

Second, and more broadly, it exemplifies Starr's propensity for omitting inconvenient facts and skirting hard questions, especially those that raise doubts about the intellectual coherence of the conservative agenda Starr champions. So it is that Starr devotes a full chapter to the court's recent expansion of states' rights yet skips over the vitally important and much criticized line of cases by which the conservatives on the court have immunized states against being sued by their own citizens. In a similar vein, Starr spends 16 pages on Bush vs. Gore yet never explains how this supremely immoderate and non-lawyerly of opinions -- arguably the most important judicial act since Brown vs. Board of Education in 1954 -- fits his thesis of a moderate and lawyerly court.

This tack is especially unfortunate in a book aimed at the general public. Although Starr's errors of commission and omission would be obvious to a scholarly audience, they may elude those untrained in constitutional law. All of which may make "First Among Equals" a useful tool for conservative marketing but a real letdown for anyone hoping that Starr would use his talents and experience to illuminate how the court wields its unsurpassed powers.

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