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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.
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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|Pt. 1||The Supreme Court Then and Now||1|
|Ch. 2||The Justices||13|
|Pt. 2||The Rights of "We the People"||45|
|Ch. 3||Shouting Fire in Crowded Theaters: The Freedom of Speech||47|
|Ch. 4||Hard Money and Soft: The First Amendment and Politics||70|
|Ch. 5||Religion in the Public Square||89|
|Ch. 6||Parochial Schools and Public Money: The Neutrality Principle||105|
|Ch. 7||The Constitutional "Right" of Privacy: Abortion and Beyond||120|
|Ch. 8||Counting by Race I: The Affirmative Action Controversy||143|
|Ch. 9||Counting by Race II: Gerrymandering and Voting||161|
|Ch. 10||The Criminal Justice Revolution: Excluding Evidence from Criminal Trials||176|
|Ch. 11||"You Have the Right to ...": Miranda and the Fifth Amendment||191|
|Pt. 3||The Powers of Structure of American Government||209|
|Ch. 12||The Power to Make Law: The Statutory Conversation between Court and Congress||211|
|Ch. 13||The Rehnquist Court and the Federal Republic||228|
|Ch. 14||Presidents: The Court and the Executive Branch||248|
|Ch. 15||Bush v. Gore||264|
|The Constitution of the United States||283|
Barnes & Noble.com: What compelled you to write First Among Equals?
Kenneth W. Starr: When I served as solicitor general -- the federal government's principal lawyer before the Supreme Court -- I was deeply impressed by the sheer number of people, of all ages, who came to the Supreme Court to watch it in action. The Supreme Court is the highest court in the land, which resolves deeply controversial and pivotally important questions that touch on the lives and liberties of all Americans. Yet the Court is a secretive institution, and the Court's decisions themselves can be hard for the layperson to understand. In First Among Equals, I explain the Court's handling of some of the most difficult, and explosive, issues of our time. I want the Court's struggle with these great cases to come alive and to be more readily understood by Americans who argue about the Court's decisions over the dinner table. I hope that First Among Equals helps to make the Court more accessible and less mysterious.
B&N.com: Who's the most dynamic justice you've ever encountered?
KS: Justice William Brennan was an absolute charmer. One of the longest-serving justices, he had a genius for making justices and law clerks alike fall under his spell. Among more recent justices, it's hard to top Antonin Scalia. He is wonderfully funny, including on the bench, yet fabulously talented and smart. It's a formidable combination.
B&N.com: How have the recent Burger and Rehnquist Courts differed from the prior Warren Court?
KS: It is no overstatement to say that the Warren Court changed the course of American law and deeply shaped American society. The Burger Court largely halted the Warren Court revolution, but by no means reversed course. In fact, arguably the most activist decision in the Court's history, Roe v. Wade, was a product of the Burger Court, not the Warren Court. The Rehnquist Court has emphasized continuity with prior decisions and has been less willing to substitute policymaking for legal analysis.
B&N.com: In your opinion, what's been the Court's most significant ruling?
KS: The most significant decision in recent times is undoubtedly Brown v. Board of Education. It ushered in a principle, followed imperfectly, of condemning governmental line-drawing on the basis of race. More broadly, it promoted a vision of equality under the law, in a context that required both great courage and remarkable foresight.
B&N.com: What's the ruling you've most disagreed with?
KS: In my opinion, Roe v. Wade must rank as the most wrenchingly wrong decision of the past generation. Whatever one's view of whether abortion is right or wrong as a matter of morality or social policy, Roe had no basis in the text, structure, and history of the Constitution. The Court simply made up the right to an abortion, even though the Constitution says nothing about it. When deciding a case, a judge must do more than say, in effect, "I rule this way because I like the result." Reasoning and logic count heavily in the legal process. But they were little evident in Roe. The Court's reasoning in Roe has no logical stopping point: If abortion is a constitutional right, why not physician-assisted suicide? In our system of representative democracy, we do better when the courts do not make up the law themselves but rather allow the people, through their elected representatives, to engage in dialogue and debate on controversial issues of social policy.
B&N.com: Do you think we'll ever see a day when politicians serve on the Court again?
KS: The Rehnquist Court is, uniquely, a lawyers' court -- it is composed of justices whose backgrounds are professional, not political. Among the current Supreme Court, only Justice O'Connor, who served as the majority leader of the Arizona Senate in the early 1970s, could really be described as coming from a political background. And even she served as a state court judge for two years before being appointed to the Supreme Court. The current Court is highly regarded largely because of its members' extensive legal experience. For that reason, at least for the foreseeable future, appointees from political backgrounds are likely to be the exception, rather than the rule.
B&N.com: Many Americans felt the conservative majority abandoned their usual "states' rights" philosophy when they took Bush v. Gore out of the hands of the Florida state judiciary and determined who would be president. Shouldn't the Court have left the Florida vote recount issue to the state court?
KS: The criticism of Bush v. Gore is entirely understandable, but the Court's decision to take the case is ultimately defensible. It seems odd for an unelected Court to step into a bitterly divided election contest. Many critics felt that the Court's decision to do so was political, rather than legal. Yet even the most bitterly political dispute, whether on the state or federal level, is ultimately governed by our Constitution. The Florida Supreme Court arguably took enormous liberties with Florida's statutory scheme for disputing and contesting elections, and in the process rode roughshod over the discretion vested by law in Florida's secretary of state. It's worth remembering that the Florida Supreme Court was itself divided 43, with Chief Justice Wells writing an impassioned dissent that highlighted the deeply fractured nature of that court's decision. Given the fact that the Florida Supreme Court's decision seemed destined to guarantee that the Florida dispute would continue deep into December, if not beyond, the Supreme Court's decision to step in was justified.
B&N.com: The Court's latest session  just ended -- how do you think it went?
KS: The recently ended session of the Court once again demonstrated that the nine justices are indeed "first among equals." The Court struck down important congressional initiatives to regulate indecency on the Internet, invalidated widespread limitations on the ability of elected state-court judges to speak out on legal issues, and upheld Cleveland's school voucher program. Although these decisions were consistent with recent trends, the Court always comes up with a surprise or two. The Court's decision to strike down capital punishment for mentally retarded adults was especially noteworthy for its breadth and its reasoning. The current Court is at times quite bold, reaching out well beyond what Court watchers would have expected. This year was no exception.
B&N.com: Who do you think will be the next justice to retire? Who do you think will eventually replace Chief Justice Rehnquist, and why?
KS: Retirements are notoriously hard to predict. The most senior justice is Justice Stevens, who is 82. Both Chief Justice Rehnquist (who has now served for over 30 years) and Justice O'Connor (who has served for over 20) are well into their 70s. But that having been said, all of the justices appear vigorous and fully engaged in their important work. None shows any signs of wanting to spend more time on the golf course than in the courtroom.
Posted February 17, 2003
And also title of a book that won an award in 1999 for the oral history of California legislature leadership 1964-1994 Gabrielle Morris,If the title is confusing I am sure that the words of others is how Judge Star made his reputation by his work against Clinton,Maybe the whole book is just cut and paste,His stile seems to suit.Was this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.