A Critical Appraisal of the Supreme Court

Many Americans have a fundamental understanding of why a President makes the decisions that he does or how Congress functions, but when it comes to the Supreme Court hands fly up in bewilderment.

Did that decision just come out of thin air? Where is the constitutional basis for that argument or what court precedent are they following? Does the long arm of the court belong in adjudication or legislation?

In First Among Equals, Ken Starr writes an engaging presentation on the most inscrutable branch of American government-the U.S. Supreme Court. Starr shares his reflections and insights into basic court history, the last three courts, major decisions, court dynamics and the personalities of the justices.

The Supreme Court is undoubtedly the most silent branch of government and yet its effect on American lives is profound. Justices never scramble like congressmen to get in front of the camera to give their side of the story. In all fairness to the congressmen, justices don’t have to face re-election or explain their decisions to the voters.

Theoretically there are three equal branches of government, but as Starr points out, “Ultimately in our system of government, the Supreme Court is first among equals.” From Marbury v. Madison to Roe v. Wade, the Court has considered judicial review within its purview and inserted itself into the controversies of the day.

The justices serve life terms unless impeached and therefore the importance of who sits on the court is not lost on those who nominate and appoint the justices. Starr points out that the person who doesn’t sit on the court is just as important as the one who does. Had Ronald Reagan nominated Robert Bork instead of Sandra Day O’Connor, the country would be a different place today.

Starr describes the circumstances of O’Connor’s nomination: “That decision, driven entirely by political consideration, changed the course of the court’s modern history, since there is little doubt that the Republican-controlled Senate in 1981 would have confirmed Bork handily.”

Thurgood Marshall once said, “I do what I think is right and let the law catch up with me.” The Warren Court was notorious for making up the law to suit itself. Rehnquist came to the bench with fire in the belly but Starr has seen that fervor dwindle and a staid adherence to the principle of stare decisis ensue. With the exception of a few issues, abortion being one, Rehnquist has not turned out to be the Lone Ranger.

Someone once referred to Antonin Scalia as the Arnold Schwarzenegger of the Supreme Court. Both Scalia and Thomas are classified by Starr as textualists and interpret the law in light of the Constitution but without making up new rights and visions as the cases come.

O’Connor avoids textualism and had very little experience prior to her nomination to the court. The June 2000 case on partial birth abortion found O’Connor not wishing to impose “undue burdens” on the freedom of choice. Her approach amounts to the opinion of the then-sitting judge regardless of precedent. Breyer tends to be collegial and enjoys panel discussions while Scalia is a “one man show.” Stevens, Souter and Ginsburg are the court’s “forlorn liberals.”

Starr covers cases involving freedom of speech, campaign finance, gerrymandering, abortion, criminal law and the 2000 election decision. The Burger and Rehnquist Courts have been careful, implementing respect for precedent by adhering to stare decisis and have not drastically altered any of the most controversial decisions such as Roe v. Wade. While Rehnquist, Thomas and Scalia have been firm in their passionate hatred of that decision, without a majority of votes they are limited to issuing scathing dissents in reaction to laws and rights pulled from penumbras.

The Supreme Court could have turned a blind eye in the presidential election of 2000 but did not. “The Rehnquist Court would not allow what it appeared to deem a runaway court to hijack a presidential election by riding roughshod over state law. That is what the Florida litigation ultimately was about.” The justices perceived that the Florida Court was changing rules mid-stream and making new rules as it went along.

Starr makes reference to a Justice Brennan remark, which is rather obvious: “With five votes you can do anything.” This is specifically why who is on the bench matters. When precedent is more sacred than the law itself, the country has a problem. What the country needs are justices whose respect for Constitutional law is real rather than contrived.

To purchase First Among Equals, click here.