Built to Last

Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court by Jan Crawford Greenburg (The Penguin Press HC, 368 pages)

As someone who not only studies the Supreme Court but teaches constitutional law, I always look forward to inside accounts of the Court -- the anecdotes they offer may be used to help students stay awake. Journalist Jan Crawford's much-discussed new book Supreme Conflict has both strengths and weaknesses compared to previous popular books about the Court, such as Edward Lazarus's Closed Chambers and Woodward and Armstong's The Brethren. It is not the book to turn to if you're interested in a legal analysis of the Rehnquist Court written for a general audience. (For that, I would recommend Mark Tushnet's fine recent book A Court Divided.) And since Greenburg is still a Supreme Court reporter, it doesn't (for better or worse) contain a great deal of the internal gossip about the Court that pervaded the Lazarus and Woodward-Armstrong books.

It's also true, as John O. McGinnis noted, that the book is considerably more sympathetic to conservatives than its obvious predecessors. What one thinks about this will depend, of course, on one's normative predilections. For my part, I was consistently annoyed by Greenburg's acceptance at face value of the (highly contestable, to put it mildly) claims made by conservatives that they want to lessen the role of the Supreme Court in American politics. I also gritted my teeth at seeing her describe as "defensible" William Rehnquist's ludicrously specious concurring opinion in Bush v. Gore -- an opinion requiring an assumption that applying a consistent interpretation of Florida's highly ambiguous election statutes was analogous to the arbitrary nullification of clear statutes by state courts in the Jim Crow South.

On the other hand, her greater sympathy for conservatives produces some good insights, such as the most detailed explanation yet of why it's dead wrong to claim that Clarence Thomas is merely Antonin Scalia's indistinguishable sock puppet (a myth Tushnet also debunks). Greenburg notes that, in Thomas's first term, it was Scalia who switched his conference vote to join a Thomas opinion, not vice versa -- but she also points out that, in encouraging Scalia to be more boldly conservative, Thomas inadvertently pushed the Court's more moderate conservatives to the center.

Whatever one's quibbles, however, what makes Greenburg's book worth reading is that she gets the big picture right. In particular, she argues that with the appointment of new Chief Justice John Roberts and Associate Justice Sam Alito, Bush has finally succeeded in engineering a significant rightward shift. Throughout her book, Greenburg's analysis provides further reason to reject the more optimistic (from a liberal perspective) narrative about the effects of Alito replacing Sandra Day O'Connor. I would cite three major avenues of denial that information in this book helps to rebut:

  • 1. Alito Isn't That Conservative. During the nomination fight, "moderate" pundits such as Stuart Taylor and Ann Althouse took to prominent news outlets to proclaim that Alito was a moderate conservative who should be much more acceptable to liberals than Thomas or Scalia had been. This argument was always problematic; nobody has identified a single area of law in which Alito is likely to cast significantly more liberal votes than Scalia. (It's not hard to find examples of the reverse.) As Greenburg reports, the Bush White House wasn't fooled by this nonsense; like liberal scholars who have carefully analyzed Alito's record, the administration was aware that he was a doctrinaire conservative, not a moderate. "I don't think he's ever written a wrong opinion," said White House Deputy Counsel William Kelley after studying Alito's circuit court record. It's true, as Greenburg also argues, that Alito is more careful and less prone to broad pronouncements than Scalia and Thomas, but this makes him worse, not better, from a liberal perspective: Alito will cast very conservative votes without alienating more moderate colleagues in the way that Scalia or Thomas have sometimes done.

  • 2. Who Can Predict? Another strategy of denial is to claim that one can never really predict what justices will do, and so Roberts and/or Alito might be "surprising" in the manner that previous Republican appointments such as Earl Warren, William Brennan, Harry Blackmun, Sandra Day O'Connor, David Souter, and Anthony Kennedy were. This however, is highly misleading. These judges were all chosen primarily for political and demographic reasons, and as Greenburg points out again with respect to the latter three, conservative groups were well aware that they were suboptimal choices at the time. (Kennedy didn't sail to confirmation after Robert Bork was defeated by random luck: everyone understood that he was more moderate.) Justices selected primarily for ideological reasons, conversely, have had very predictable voting records. In fact, conservative activist groups have had a very good record at evaluating the prospective record of judicial appointments: They were skeptical about O'Connor, Souter, and Kennedy, and loved Scalia and Thomas. Needless to say, most conservative activists think that Roberts and Alito were great picks.

  • 3. The Court Follows The Election Returns. The most sophisticated denial strategy is to point out that the Court rarely stays outside of the bounds established by political pressures for long. Long-established by the political science literature, this claim actually has considerable merit, and it is true that worries about the return of a "Constitution in Exile" are overblown. (It is highly unlikely that anything like a radical, pre-New Deal vision of federalism will ever command five votes in the Supreme Court. Even if it happened, the effects would be temporary, as the Republican Party would essentially be finished as a political force in its current form.)

    Still, it's important not to overstate the restrictions on the Court's autonomy, or to assume that justices will always act in the strategic interests of the party that appointed them. In retrospect, it may seem inevitable that the Court has failed to take the highly unpopular step of overturning Roe v. Wade, but as Greenburg reminds us, Roe's survival (in diluted form) was highly contingent. Had Ronald Reagan nominated Robert Bork when the GOP still controlled the Senate and saved Scalia to replace Lewis Powell, for example, he almost certainly would have gotten both confirmed. Similarly, Souter's nomination by George H.W. Bush was a fluke based on the influence of John Sununu and Warren Rudman in the White House and strange internal machinations in the Department of Justice; without those things, Kenneth Starr would have been the likely nominee. Either result would have ended in Roe being overturned, and would have had a considerable impact in many other areas of law as well (most notably affirmative action and church and state issues). The Rehnquist Court could have been much more conservative than it was. Liberals shouldn't get too complacent about the consequences should a Republican president get to appoint the replacement for John Paul Stevens or Ruth Bader Ginsburg.

    Of course, the initial Roberts court will not radically revise constitutional law; the vote of the more moderate Kennedy will be necessary to secure conservative majorities, and as we were reminded again this week, it will not always be available. But any area of doctrine where O'Connor was the swing vote is ripe for revision. As Greenburg's analysis makes clear, the stakes of the next appointment -- which could result in Antonin Scalia or John Roberts being the median vote on the Court -- will be extremely high.

    Scott Lemieux is an assistant professor of political science at Hunter College, CUNY, and writes for the blogs Lawyers, Guns, and Money and Tapped.

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