First Among Equals: The Supreme Court in American Lifeby Kenneth W. Starr
Today's United States Supreme Court consists of nine intriguingly varied justices and one overwhelming contradiction: Compared to its revolutionary predecessor, the Rehnquist Court appears deceptively passive, yet it stands as dramatically ready to defy convention as the Warren Court of the 1950s and 60s. Now Kenneth W. Starr-who served as clerk for one chief
Today's United States Supreme Court consists of nine intriguingly varied justices and one overwhelming contradiction: Compared to its revolutionary predecessor, the Rehnquist Court appears deceptively passive, yet it stands as dramatically ready to defy convention as the Warren Court of the 1950s and 60s. Now Kenneth W. Starr-who served as clerk for one chief justice, argued twenty-five cases as solicitor general before the Supreme Court, and is widely regarded as one of the nation's most distinguished practitioners of constitutional law-offers us an incisive and unprecedented look at the paradoxes, the power, and the people of the highest court in the land. In FIRST AMONG EQUALS Ken Starr traces the evolution of the Supreme Court from its beginnings, examines major Court decisions of the past three decades, and uncovers the sometimes surprising continuity between the precedent-shattering Warren Court and its successors under Burger and Rehnquist. He shows us, as no other author ever has, the very human justices who shape our law, from Sandra Day O'Connor, the Court's most pivotal-and perhaps most powerful-player, to Clarence Thomas, its most original thinker. And he explores the present Court's evolution into a lawyerly tribunal dedicated to balance and consensus on the one hand, and zealous debate on hotly contested issues of social policy on the other.
• On race, the Court overturned affirmative action and held firm to an undeviating color-blind standard.
• On executive privilege, the Court rebuffed three presidents, both Republican and Democrat, who fought to increase their power at the expense of rival branches of government.
• On the 2000 presidential election, the Court prevented what it deemed a runaway Florida court from riding roughshod over state law-illustrating how in our system of government, the Supreme Court is truly the first among equals. Compelling and supremely readable, FIRST AMONG EQUALS sheds new light on the most frequently misunderstood legal pillar of American life.
Starr shows rightist colors from the first sentence, recounting Thurgood Marshall’s having taken offense at his ultimately successful effort as US solicitor general to free Oklahoma City from the burdens of desegregation. Throughout his pages, he decries the recent Court’s supposed penchant for judicial activism; expresses wounded wonder at its failure to overturn Roe v. Wade, which, he holds, "was not grounded in the text or history of the Constitution" (the Court evidently believed otherwise, interpreting the right to abortion as a guaranteed species of personal privacy); and questions why Chief Justice William Rehnquist, whom he obviously admires, should have allowed such "jurisprudentially weak and irregularly born" exclusionary rules as Mapp v. Ohio to stand when they’re such a bother to law-enforcement officers everywhere. Not all is unwell in the highest court in the land, though, Starr writes, for "notwithstanding the Warren and Burger Courts’ drive toward separation"—of church and state, that is—"religious tradition continues to find its way into public life, as demonstrated by the outpouring of religious sentiment and patriotism in the wake of the terrorist attacks of September 11, 2001." As he moves along in his consideration of recent Court rulings, Starr ventures a few curious asides—at one point, for instance, he calls Clarence Thomas "the most intriguing and original" of the sitting justices, praise he does not elaborate on at sufficient length to sway doubtful readers. Perhaps surprisingly, he is respectful even to suchmembers of the opposition as flag-burners, William Kunstler, and Ruth Bader Ginsburg, though he naturally reserves the greatest praise for conservative icons like Antonin Scalia.
Fellow travelers will doubtless find something of worth in Starr’s characterization of the modern judiciary; other readers will be unmoved.
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First Among EqualsThe Supreme Court in American Life
By Kenneth W. Starr
Warner BooksCopyright © 2003 Kenneth W. Starr
All right reserved.
THE CONSTITUTION CREATES THE SUPREME COURT. Other federal courts may come and go, in Congress's discretion, but only the Supreme Court is ordained in the founding document itself. Even so, the early years of the Supreme Court were not busy ones. John Jay, the first chief justice, took time away from his duties to negotiate the much despised Jay Treaty with England. When he returned home, Jay resigned from the Court to accept the post of governor of his native New York. The second chief justice, Oliver Ellsworth, was soon bored. He stepped aside in 1800 only weeks after Thomas Jefferson was elected president.
Jefferson's triumph over John Adams brought about a seismic shift in national politics-a political revolution, as the new president saw it. During the nation's first twelve years, battles had been fought over the enduring question of the power of the federal government as opposed to that of the states. Throughout his eight years as president, George Washington remained above the fray, but below- in the trenches of cabinet-level disputes-the struggle between competing visions of national versus state power had been fierce. Alexander Hamilton, the first secretary of the treasury, led the pro-nationalist forces. In Hamilton's view, the central government should be strong, active, energetic, moving ahead with programs to build the young nation. Hamilton pressed successfully for the establishment of a Bank of the United States, an institution he thought necessary for the nation's economic development but that was destined to be challenged in court early in the nineteenth century. For his part, the president-in Hamilton's vision-needed to be energetic, showing strong leadership in promoting a sense of genuine nationhood throughout the country. The people should look to the national capital, first New York, then Philadelphia, and finally the new city of Washington, D.C., for the establishment of policies and institutions that would enable the country to thrive.
Like Hamilton, Jefferson also served in Washington's cabinet. He was the loser in these early battles. His vision of a federal government strictly confined to the powers enumerated in the Constitution had failed to carry the day during Washington's two terms. Jefferson then lost a hard fought, bitter contest to John Adams in 1796. But Jefferson was tenacious, determined to best the centralizing forces of the Federalist Party epitomized by his adversary, now President Adams. In 1800, his defeat of Adams, a virtuous, principled man lacking in political skills, finally brought the states' rights advocates-the so-called Anti-Federalists-to power. The "Revolution of 1800," as Jefferson dubbed the election, occurred after twelve successive years of Federalist domination.
The business of the Supreme Court now began to pick up. Not only was there more work to do at the Court itself, but the justices often found themselves "riding circuit." They would literally ride on horseback or take coaches to various cities and preside at trials.
Not surprisingly, the Court, stocked as it was with Washington's and then Adams's appointees, was strongly pro-Federalist. Chief Justice Oliver Ellsworth's resignation in late 1800 gave the Federalists the opportunity to deepen their influence upon the judiciary. Notwithstanding his lame-duck status, President Adams took advantage of the Ellsworth resignation and nominated a brilliant, loyal Federalist from Virginia, John Marshall, to become chief justice. Adams also rushed through nominations of other judges to the lower courts. The "midnight appointees," as they came to be known, were destined to dominate the federal courts for years to come. But no other appointment in history had the enduring impact of John Marshall's.
More than any other figure save for Washington himself, John Marshall gave shape to the national government. In particular, Marshall affirmed the power of the nation's highest court to interpret the Constitution and federal law. Known as the power of judicial review, it was first given full expression in the 1803 case of Marbury v. Madison. The underlying dispute was simple: Was William Marbury entitled to a commission that, upon delivery, would permit him to take the oath of office as a justice of the peace in the new District of Columbia? From that tiny legal dispute a mighty doctrine grew.
The issue is this: In a constitutional democracy, the Constitution is the ultimate authority, binding on all branches and levels of government. But the Constitution, since it is a written document, must be interpreted. Who is to do that? May each branch of government interpret the Constitution for itself? What if the president or Congress reads the Constitution differently from the Supreme Court? Which branch prevails?
In the case that resolved this issue, William Marbury invoked a measure passed by Congress and signed into law by George Washington. The statute was the Judiciary Act of 1789. That law, among other things, created the attorney general's office. It created the United States Marshals. It created lower federal courts.
But another provision of that law-and one invoked by would-be Justice of the Peace Marbury-said that the Supreme Court could hear as an "original" matter (that is, without any lower court passing on the case) certain legal actions, namely lawsuits seeking a writ of mandamus. Mandamus is an ancient writ at common law and is still in active use today. To "mandamus" someone is to secure an extraordinary directive requiring an official (including judges) to take certain action, or to cease and desist from a court taking certain action (called in bygone years a writ of prohibition).
Invoking the mandamus provision, William Marbury filed a petition in the Supreme Court to mandamus the incoming secretary of state, James Madison, to deliver the justice-of-the-peace commission that had been authorized by outgoing President John Adams and signed by then Secretary of State John Marshall. Marshall, who hadn't delivered Marbury his commission, was now chief justice.
Marbury doubtless entered the High Court brimming with optimism. This was, after all, a Federalist bench from top to bottom. These were the appointees of Washington and Adams. The commission was surely his.
There was a huge problem, however, one unanticipated by Marbury's argument. The issue had to do with the Supreme Court's authority to hear the case, what lawyers and judges call "jurisdiction." Jurisdiction is a fundamental issue for courts. Judges routinely ask: Do we have power-i.e., jurisdiction-to hear this lawsuit? Are the litigants in the right court? Does this plaintiff have "standing" (some legally recognizable injury) to mount the legal challenge in question? Is there a statute, passed in accordance with the Constitution, conferring power on the courts to resolve the particular case?
In particular, federal courts (including the Supreme Court) worry about their authority in a federal system: "Counsel, what right does your client have to be here?" The basic point is this: In our system of government, courts are limited in their authority. Although within their sphere of authority they are powerful indeed, courts can do only what the law creating them authorizes. To go beyond that power is to behave lawlessly.
Occasionally, judges will be insufficiently attentive to what they consider jurisdictional niceties. An episode during my service in the 1980s as a judge on the U.S. Court of Appeals in Washington, D.C., illustrates the point. One of the giants of the district court in Washington at the time was Gerhard Gesell, son of the renowned Yale child psychologist and a distinguished lawyer in his own right at Washington's prestigious Covington & Burling. Before his appointment to the bench, Gesell had been one of the nation's premier antitrust advocates. He was smart and shrewd. Each year, he would sit by designation for several days as a guest judge on the court of appeals in Washington. On one such occasion, as we were chatting in the judges' robing room just behind the courtroom, Gesell was complaining about recent opinions from our court tightening up the rules of standing, saying, "Let's get on with these cases, get to the merits, instead of wrestling with all this technical stuff." Gesell was a bit testy on the point. He seldom hesitated to speak his mind, but he seemed especially agitated over this trend toward "technical" decisions. I was amused, but listened politely. I liked Gerry a lot, and respected his opinions. The presiding judge that morning was Robert Bork. Always quick, Judge Bork reminded the venerable district judge that these recent opinions didn't simply reflect some hypertechnical approach: "Well, Gerry, it is constitutionally required, you know." What Judge Bork was saying is this: Courts are limited, by Article III of the Constitution, to deciding actual cases and controversies. Gesell snorted. Here was the practical, common-sense district judge who wanted to move the cases along and get them decided, on the one hand, pitted against the principle, rooted in the idea of a limited judiciary, that judges can't decide anything and everything parties might choose to bring them.
This was the problem that confronted Marbury. He had brought his case to the Supreme Court instead of some lower court because the Judiciary Act of 1789 told him he could. But this, Chief Justice Marshall concluded, was impermissible. The text of the Constitution itself-in Article III setting forth the judicial power and creating the Supreme Court-designated the specific categories of cases in which the Supreme Court enjoyed "original" (that is, firsthand) jurisdiction. What Marbury was seeking- mandamus-was not within those categories. Thus, the 1789 statute tried to expand what the Constitution itself established. The categories of original jurisdiction created by the Constitution were closed (barring, of course, a constitutional amendment). Congress could not depart from the text of Article III and devise additional categories of original jurisdiction. Obviously, the statute was inconsistent with what the Constitution provided. Both could not be law.
The final step in John Marshall's analysis represented the inexorable conclusion: If a statute passed by Congress is inconsistent with the Constitution, then the statute must be set aside. Otherwise, ordinary legislation would render ineffectual the very law that sets up Congress and the rest of the government-the Constitution. And, Marshall added, it was the job of judges to say, finally, what was the law of the land.
The Federalist midnight appointee John Marshall had ruled against his philosophical comrade. But in the process of disappointing Marbury, the great chief justice (as he came to be called) had established the fundamental role of the judiciary in a constitutional democracy-to interpret the Constitution finally and authoritatively, even when one of the other branches of government (or both) had come to a contrary view.
To Jefferson, the Marbury v. Madison approach was profoundly wrong. Each branch, he thought, was coordinate and co-equal. It would not do to have a regime of judicial supremacy in which the unelected, third branch of government stood over the two elected branches. A new aristocracy would rule the two branches most responsive to the people.
But President Jefferson's sense of foreboding was to no avail. Congress made no effort to overturn Marbury through constitutional amendment. Nor was a more modest measure seriously pursued, such as one requiring that the Court be unanimous before striking down as unconstitutional an act of Congress or an action of the executive branch.
Marbury v. Madison was the seminal decision of John Marshall's tenure. But it began a long series of Marshall's contributions. In case after case, spanning over three decades of service, Marshall guided the Court in a way that upheld national power over the country. That is, when the issue involved the power of the Congress as against the claims of the states, Marshall was a reliable supporter of the federal government. In particular, his interpretation of one pivotal provision in the Constitution- the Commerce Clause-paved the way for Congress to be free to regulate the economy in the myriad ways that have now become commonplace.
Much of what Congress does falls under the category of regulating "commerce." The Constitution's language in this respect is simple: Article I, section 8 provides that the national legislature is empowered "[t]o regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes." In an early landmark testing the extent of this power, Marshall, in a characteristically broad interpretation of congressional authority, dealt a serious blow to state authority (Gibbons v. Ogden ). In that case, the Marshall Court struck down a New York law giving a monopoly to a steamboat company carrying passengers on the Hudson River. In overturning the law, Marshall gave the pivotal term commerce a sweepingly broad definition, thus maximizing federal power at the expense of the states.
Marshall's pro-Federalist vision likewise triumphed in an early case involving Maryland's challenge to the controversial remnant of Hamilton's program from the prior century, the Bank of the United States. To the Anti-Federalist defenders of states' rights, most prominently Jefferson, the Bank embodied the evils of national concentration of power. Nowhere in the Constitution was the Bank either generally or specifically mentioned. The legality of the Bank thus went to the heart of the Constitution's structural arrangements. The Constitution, after all, laid out in elaborate detail the various powers of Congress. To the Anti-Federalists, its silence about national financial institutions resolved the question of Congress's power: If the Constitution was silent, then the power did not exist.
This narrow approach to interpreting the Constitution is frequently referred to as "strict construction." A strict constructionist, as the term is generally used, is a judge or justice who discerns the meaning of the Constitution in its text, structure, and history. Many nominees for judicial office will march under the banner of strict construction, since it suggests a modest, limited role for judges in a democratic society. Judges, advocates of strict construction say, should not import their own views of good and sound policy into the clauses and phrases of the supreme law of the land.
Despite its popular appeal, strict construction has only episodically characterized the Supreme Court's work.
Excerpted from First Among Equals by Kenneth W. Starr Copyright © 2003 by Kenneth W. Starr. Excerpted by permission.
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