First Among Equals: The Supreme Court in American Life
By Kenneth Starr. Warner Books, 320 pages, $26.95
Bill Clinton did not destroy his opponents; he drove them insane, and they destroyed themselves. Of all the careers Clinton ended in ignominy -- Bob Dole, Fred Thompson and Newt Gingrich come to mind -- one of the most poignant is that of former judge and Solicitor General Kenneth W. Starr. Until he became independent counsel, Starr was a revered figure in Washington whose integrity and geniality had won respect from many who disagreed with his conservative legal philosophy.
But Starr was inveigled into running the Whitewater probe, a job for which he had no discernible credentials. He had been a judge and a government lawyer but knew little of criminal law and had never been a prosecutor. By the end of the impeachment drive, he had become a reviled figure among Democrats and an embarrassment to many Republicans. (Jay Leno, joking about Thanksgiving in the Starr home, asked, "Think the turkey breast is covered at all times?") In fairness I should note that I was a frequent critic of Starr's acceptance of the independent-counsel position and his tactics once in it.
By the time of his resignation, Starr's once-bright hopes for a Supreme Court appointment had all but disappeared, and he was forced to return to a job as a private Supreme Court litigator. Starr now presents his assessment of the Rehnquist Court in First Among Equals. It needs to be said at the outset that this book contains absolutely no information about the Whitewater probe or about Starr's role in the impeachment battle. It should also be said that First Among Equals is very much the work of a litigator who makes his living by appearing before the Court. It's hard to voice critical opinions about justices before whom an author must regularly appear, and Starr's assessments of the Supreme Court suffer from a certain flatness as a result. (Starr solemnly reports that Associate Justice Anthony Kennedy "is charming and witty, continually displaying a boyish enthusiasm that belies his proud status as grandfather.") Nonetheless, the book is valuable as a summary of the emerging conservative defense of the Court and its role in the nation's politics. Starr's account is delivered with his characteristic intelligence and amiability; that it is unpersuasive is the fault of the client and not the lawyer.
From 1954 until 2000, the standard conservative argument was that courts should play a modest role in government. Decisions were to be made by the elected branches; the alternative -- whether it involved judicial invalidation of racial segregation, of unequal legislative apportionment or of coercive law-enforcement practices -- was judicial tyranny.
Today, with conservatives running most of the circuit courts and a conservative president installed in the White House by the Supreme Court's conservative majority, that argument has quietly been forgotten. Starr admits out front that the Rehnquist Court does not even claim to see its role as a modest one: "Bush v. Gore illustrated the modern Court's most abiding characteristic. ... Ultimately in our system of government, the Supreme Court is first among equals."
That Starr approves of this self-image suggests the sea change that's taken place in conservative legal theory. Liberals who object to the Supreme Court's seizure of power, Starr suggests indirectly, are, if not hypocrites, at least poor students of history. The Court's preeminence does not stem from the Constitution, he writes, but is simply a continuation of the political role established by the Warren Court in such decisions as Brown v. Board of Education and Miranda v. Arizona.
"To its foes, the Warren Court was the most activist Court in the nation's history," Starr explains. "By activist, the Court's critics mean that the Court had acted in ways that exceeded, and sometimes wildly so, its appropriate and legal authority as an unelected branch of government." The Rehnquist Court has simply built on this base, he argues, and indeed has been less aggressive than the "ex-politicians or executive branch officials" who served under Earl Warren. William H. Rehnquist and his colleagues are "lawyers, not politicians," and today's Court is "a more lawyerly tribunal ... increasingly dedicated to stability and moderation." In fact, such activism as the majority engages in is simply a more genteel pursuit of the Warren Court's vision of equality. Starr writes: "The principle of equality enjoyed the overwhelming support of the American people. That it did so was in part a result of the Warren Court and in particular its decisions outlawing segregation and racial discrimination, but in part also a result of the increasing racial and ethnic diversity of the nation and of -- last but hardly least -- the egalitarian beat of the free market."
In this account, the Rehnquist Court's establishment-clause jurisprudence, which increasingly permits government funds to flow to overtly religious activities, stems simply from a desire to treat religion equally with non-religion. Even Bush v. Gore was a reaffirmation of this liberal value. Starr writes: "Equality ... was the Court's chosen principle for deciding the case. Seven justices, cutting across the Court's ideological spectrum, agreed with the substance of the equality-based critique of the vote-counting morass in Florida."
The role of a litigator is to take heterogeneous facts and combine them into a seamless and plausible story. Starr's is an ingenious argument and a smoothly argued one. But it won't hold water. The claim that "lawyers" and not "politicians" dominate the new Court is patently false. Chief Justice Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas are "former executive branch officials." Associate Justice Sandra Day O'Connor is a former politician. Their ideology is different from that of Earl Warren (a former governor) or Hugo Black (a former senator), but it is no more "lawyerly" or "neutral."
Second, this Court's commitment to "equality" is at best a shaky one. Some of its decisions -- particularly Romer v. Evans, which voided Colorado's anti-gay Amendment 2 -- have made the country a more egalitarian place. But in general, this Court views civil-rights statutes with hostility; indeed, in his majority opinion in Board of Trustees v. Garrett, the chief justice goes out of his way to make clear that discrimination against the disabled, though outlawed by Congress, makes a lot of sense to him. Rhetoric aside, this Court is unconcerned with the yawning gaps between rich and poor, or black and white.
Third, and most damning, the Rehnquist majority's federalism jurisprudence -- which restricts the power of Congress and enhances the "exclusive" domain of the state -- is far more "activist" and radical than the Warren Court ever was. Even at its height, the Warren majority tended to use judicial review to enhance individual rights against local government. Its jurisprudence included a strong measure of deference to Congress, as the branch elected by the entire people. After long debates, the Warren and Burger courts both concluded that striking the state-federal balance was properly the job of the political branches; if the people disliked the line they drew, they could change it democratically. This kind of reasoning used to be called "judicial restraint." Rehnquist and company have reversed course and determined that the power of Congress will be limited by the Court majority's vision of federalism -- and, one cannot help but suspect, its own conservative policy views.
The legal landscape in the wake of Bush v. Gore is new and unsettling. As a map of the new country we live in, First Among Equals is a disappointment, but it is a sobering portent of the future. The new vision seems to be of the Supreme Court as a kind of American equivalent to Iran's Guardian Council, empowered to make sure that mere politicians do not fall into political heresy. For those of us who imagined America as a democratic republic, governed by an elected president and a Congress responsive to the people, the prospect is not one of moderation or equality.