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

Overview

"An incisive consideration of the Supremes, offering erudite yet accessible clues to legal thinking on the most important level."—Kirkus Reviews
In this authoritative reckoning with the eighteen-year record of the Rehnquist Court, Georgetown law professor Mark Tushnet reveals how the decisions of nine deeply divided justices have left the future of the Court; and the nation; hanging in the balance. Many have assumed that the chasm on the Court has been between its liberals and its conservatives. In reality, the ...

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

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Overview

"An incisive consideration of the Supremes, offering erudite yet accessible clues to legal thinking on the most important level."—Kirkus Reviews
In this authoritative reckoning with the eighteen-year record of the Rehnquist Court, Georgetown law professor Mark Tushnet reveals how the decisions of nine deeply divided justices have left the future of the Court; and the nation; hanging in the balance. Many have assumed that the chasm on the Court has been between its liberals and its conservatives. In reality, the division was between those in tune with the modern post-Reagan Republican Party and those who, though considered to be in the Court's center, represent an older Republican tradition. As a result, the Court has modestly promoted the agenda of today's economic conservatives, but has regularly defeated the agenda of social issues conservatives; while paving the way for more radically conservative path in the future.

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Editorial Reviews

Dahlia Lithwick
Whether, as Tushnet contends, the court is divided into old and new Republicans, into conservatives, liberals and swingers, into pragmatists and idealists, or into lovers of firm rules or squishy standards, the fact is that the Supreme Court is human, not divine. It need not be feared, bound or gagged in order to play out its constitutional role. A Court Divided goes a long way toward illuminating that truth.
— The Washington Post
Publishers Weekly
In this balanced, insightful assessment of the dynamics of today's Supreme Court (which may change very soon, with Chief Justice Rehnquist's illness), Tushnet, a constitutional law scholar at Georgetown, says that, in addition to the obvious divisions between conservative and liberal justices, fault lines have opened up within the conservative wing. On the touchy issue of judicial activism, Tushnet argues that all the justices are activists in pursuing their judicial goals. To explain the justices' activism and diverse agendas, the author delves into individual personal and intellectual histories. Each justice is profiled in relation to an area of constitutional law in which he or she holds distinctive views, such as Justice Scalia's search for absolute rules favoring free speech and Justice Ginsburg's concern with sex discrimination. Justices holding generally conservative opinions form a majority on the Court, yet only in cases involving economics has it produced results favored by the right. On hot-button social issues, like abortion, Tushnet concludes, the Court's conservatives have fragmented, leaving Roe v. Wade in place and striking down laws criminalizing homosexual conduct. Tushnet believes that these results accord with the politics prevailing in the country as a whole, where economic conservatism is ascendant but Americans are moderately liberal on social issues. In this calm, unbiased study, Tushnet explains clearly how and why the Supreme Court reflects the nation's uneasy political consensus. Agent, Sydelle Kramer of the Frances Goldin Agency. (Jan.) Copyright 2004 Reed Business Information.
Library Journal
Tushnet (Carmack Waterhouse Professor of Constitutional Law, Georgetown Univ. Law Ctr.) has written an excellent piece of legal and historical scholarship that details the Rehnquist Court's impact on constitutional law. Placing the Rehnquist Court in a historical judicial context by showing its relationship to the Warren and Burger courts, Tushnet presents a compelling portrait of the Court's workings through penetrating case analyses, biographical sketches, and apparent Court insider information. Tushnet argues persuasively that the Rehnquist Court's crucial division lies between traditional Republicans and modern post-Reagan Republicans. It emerges that the seeds have been planted for a revolution in constitutional law, depending upon the political orientation of future Court appointees. This argument is made all the more timely by the recent announcement that Chief Justice Rehnquist has potentially aggressive cancer, which may result in the first of several Court retirements in the new presidential term. Highly recommended for academic, law, and large public libraries. [See Prepub Alert, LJ 9/1/04.]-Theodore Pollack, New York Supreme Court Public Access Law Lib, New York Copyright 2004 Reed Business Information.
Kirkus Reviews
Considering past as prologue, Tushnet (Constitutional Law/Georgetown) pursues individual Supreme Court members to analyze their thinking in some significant cases. The Court's announced positions do not represent neat divisions between such comparative liberals as Ruth Bader Ginsburg and archconservatives like Antonin Scalia, the author finds. Rather, the most important split is between hard-line conservative Republicans-Scalia and Clarence Thomas, for example-and the more traditional Republicans, including Sandra Day O'Connor and David Souter. No wonder the judicial branch has nudged the nation to the right, though perhaps not as far as the Chief Justice might have wished. Tushnet (Making Civil Rights Law, 1994) provides astute reviews of landmark cases dealing with such public concerns as the religious right, gay rights, abortion, affirmative action, free speech, and crime. Judging many of the justices in light of the cases upon which they opined, the author sees Clarence Thomas as unwilling to countenance any change in the 1789 Constitution, Kennedy as pompous, Breyer as a bit weird, Ginsburg as family-minded, and Souter as a modern man of the 19th century. Tushnet reserves most of the dissing for Scalia, described as "splenetic" and not "as smart as he thinks he is." Legal stratagems are explained, the arcana of the law are rendered lucid throughout, and the author's fly-on-the-wall coverage of the courthouse is quite credible. For the future, Tushnet concludes, we can look forward to more "borking": that is, to the Senate vetting and ultimately rejecting candidates for places on the bench because of their on-record political convictions. We can also look forward to more politics:decisions based less on settled law, more on the political agenda of the executive branch, as well as on the agenda of the justices themselves. About the only thing left unexplained: those strange gold stripes on the sleeves of the Chief's robes. An incisive consideration of the Supremes, offering erudite yet accessible clues to legal thinking on the most important level.
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Product Details

  • ISBN-13: 9780393327571
  • Publisher: Norton, W. W. & Company, Inc.
  • Publication date: 11/1/2005
  • Edition description: Reprint
  • Pages: 416
  • Sales rank: 816,565
  • Product dimensions: 5.60 (w) x 8.30 (h) x 1.10 (d)

Meet the Author

Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School and the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law. He divides his time between Washington, DC, and Cambridge, Massachusetts.

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Table of Contents

1 William Rehnquist's court 13
2 Two kinds of republican 49
3 Clarence Thomas's constitution 71
4 Ruth Bader Ginsburg's equal protection clause 104
5 Antonin Scalia's first amendment 130
6 Anthony Kennedy and gay rights 156
7 The religious right's agenda - symbols and money 180
8 Holding the line on abortion 204
9 Race, affirmative action, and crime 223
10 The federalism revolution 249
11 The takings project 279
12 Big business's constitution 302
13 A Supreme Court united? 319
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