Kenneth Starr has a problem. The former judge, solicitor general, and independent counsel wanted to write a dispassionate and scholarly book about the role of the U.S. Supreme Court in American life, but—perhaps being more accustomed to advocacy than scholarship—his final product reads more like a mash note to Chief Justice William H. Rehnquist. He wanted to show the public that the Rehnquist Court—not unlike the Warren Court—has carved out a pre-eminent role for itself, dominating the other two branches of government, but to simultaneously reassure us that this dominance is benign, if not in fact benevolent. Finally, he wanted to persuade the reader that immutable noble principles—“equality,” “neutrality,” and “judicial restraint”—are the hallmarks of the Rehnquist era, but he knows that even if it’s squashed into his final chapter, he’s going to have to deal with Bush v. Gore, a decision that embodies none of the above. So, First Among Equals comes off as a schizophrenic book, principally because Starr is too in love with the Rehnquist Court to notice that its not all that different from its predecessors.
It’s not hard to agree with Starr’s basic premise: The Rehnquist Court still “reigns supreme” over the other two branches of government. What’s fascinating is Starr’s effort to distinguish the current court’s dominance over the other branches from the Warren Court’s“activism.” He trots out an impressive array of analytical devices to do so: First, he contrasts the legal methodology of the Warren Court, all sloppy and ends-driven in its “missionary zeal,” with the “lawyerly” precision, the “stability and moderation” of the Rehnquist Court. Starr goes to town trashing the intellectual underpinnings of Roe v. Wade and its abortion progeny as “unacceptable” and “feckless.” Whereas when the Rehnquist Court found, in United States v. Lopez, that an act of Congress exceeded Congressional powers under the Commerce Clause for the first time in more than 50 years, that decision was coherent and well-reasoned. The irony here is that Starr is highly critical of Justice Sandra Day O’Connor as someone “ready and willing to create new law.” He charges her with inventing constitutional tests from thin air and relying too closely on judicial judgment (just like Earl Warren!). Yet he repeatedly acknowledges her as “the court’s most powerful member” and the deciding fifth vote in virtually every case that he cites with approval. In other words, Starr is arguing that the current court is methodologically precise and lawyerly, while condemning its pivotal figure as anything but.
Another device to which Starr returns throughout his book is his image of the Rehnquist Court as only using its staggering powers to correct Warren Court wrongs. Time and again, he implies that the current court wouldn’t be nearly so aggressive were it not for the wrongheaded precedents imposed upon it by the Warren Court. Indeed, Starr takes issue with the Rehnquist Court’s refusal to be more activist in refusing to overturn cases, like Roe, he deems wrongly decided. To Starr’s mind, it’s not “activism” when the Rehnquist Court imposes a radical new vision of federalism on the country. Instead, the Rehnquist Court’s federalism jurisprudence is the court merely “making what might be called structural repairs to our constitutional system.”
Starr also cites “judicial restraint” as a hallmark of the Rehnquist Court without ever acknowledging that “restraint” is in itself an exercise of power. When the court invalidated a New Jersey law prohibiting the Boy Scouts from discriminating against a gay Scout leader, that was an activist decision by any measure. But by characterizing this decision as one in which the court cautiously declined to threaten “venerable organizations” and their rights to free association, Starr reframes this activism as “restraint,” even when restraint means trammeling states’ rights.
Another, subtler theme that sounds throughout Starr’s analysis of the Rehnquist Court is that it isn’t “activism” when the court imposes its power on the country, so long as their rulings are congruent with either the public will or some higher morality. The argument here seems to be that the Warren Court got it wrong by consistently “getting out ahead” of the rest of the country, whereas the Rehnquist Court is getting it right in demolishing old Warren Court doctrines to give the people what they want. He uses this logic to support court decisions that re-inject religious tradition into public life, because this is what the people wanted “in the wake of the terrorist attacks of September 11.” Starr grounds Rehnquist Court activism in vast, meaningless generalities such as “the equality principle” (which justifies tearing down the “wall” between church and state), then follows up with even blander assurances, such as: “The principle of equality enjoyed the overwhelming support of the American people.”
By expending so much energy distinguishing the Rehnquist Court from the Evil Empire that was the Warren Court, Starr glosses over the fact that activism is activism, even when it promotes values he prefers—such as federalism, public funding for religion, or the dismantling of affirmative action. Oddly, Starr celebrates Brown v. Board of Education (a paradigmatic Warren Court case for being both unlawyerly and ends-driven) as one of that court’s “greatest achievements,” and in doing so he reinforces the impression that his idea of good law is ultimately as result-oriented as anyone’s. Starr’s ideology seeps into the book in other ways—ways that make him sound like he’s sometimes channeling Ann Coulter. He calls Justices Breyer and Ginsburg “Clinton appointees” three times in three pages, as if by invoking their champion he might tar them as philandering perverts as well. So anxious is Starr about “liberals,” the “cultural elites,” and the “New York Times editorial pages,” that the words are frequently thrown out, Coulter-fashion, to stand as self-explicating negatives.
Starr likes to divide the justices into “teams” like it’s a camp color war—so we get the “Five Friends of Federalism” (Rehnquist, O’Connor, Scalia, Kennedy, and Thomas) versus the “Four Foes.” In an early chapter titled “The Justices” (but perhaps more aptly called “Justices I Like”), Starr devotes seven loving pages to Chief Justice William H. Rehnquist and six rapturous pages to Antonin Scalia and the glories of Scalia’s constitutional theory of “textualism.” The jurisprudential and personal charms of Justices Kennedy, O’Connor, and Thomas (“intriguing and original”) are similarly elaborated for pages on end. Even Justice Breyer, lauded for having “moved to the center” on some issues, is granted a few pages. Then, in three stark paragraphs devoted to “the forlorn liberals,” Starr dismisses Justices Stevens, Souter, and Ginsberg as, respectively, “marginalized,” “irrelevant,” and “predictable.” Starr devotes more time to describing Ernesto Miranda—the rapist who gave his name to the Miranda warnings—than he does to explaining the jurisprudence of the court’s liberal justices.
First Among Equals is still a worthwhile read. Starr is brainy and insightful, and his analysis of constitutional doctrine, from free speech to criminal rights, is trenchant and accessible. Where Starr goes off the rails, however, is in constructing his book as a defense brief that only succeeds in condemning this court as too powerful. His attempts to reduce complicated doctrines—free speech for religious messages is simply about “equality,” as is the court’s systematic dismantling of affirmative action programs—are unlikely to fool readers into believing that the Rehnquist Court really is out to protect the little guy. What the reader is left with, then, is Starr’s ambivalent closing account of Bush v. Gore as an example of the court’s awesome powers used to a less than awesome purpose. It’s clear that Starr feels the justices probably blew it. The court, he says, “had usurped power and intruded into the province of both the states … and the Congress.” By revealing his anxiety, even if only in the final chapter, Starr highlights the problem with his defense of the court: It turns out that lawyerly methodology, personal ideology, and a willingness to stomp all over Congress and the states is really only appealing to Starr when it promotes ends he supports. Not surprisingly, the book closes with a picture of a too-powerful court able to make reckless decisions for political purposes.
In other words, the Warren Court repackaged for a new millennium.