- The Washington Times - Sunday, November 3, 2002

By Kenneth W. Starr
Warner, $26.95, 320 pages

Kenneth W. Starr's credentials for examining the U.S. Supreme Court are matchless. He earned kudos as solicitor general of the United States, as a judge on the U.S. Court of Appeals for the District of Colombia Circuit, and as independent counsel in the Whitewater-Monicagate investigation. Mr. Starr further gained a bird's-eye view of the High Court as law clerk to Chief Justice Warren Burger. And his style is refreshingly felicitous.
But Mr. Starr's supernova brilliance seems dimmed in "First Among Equals," a meticulous dissection of front-burner constitutional issues addressed by the modern Supreme Court. The book delights like Mozart's finger exercises, but still leaves the reader hungering for a Starr counterpart of "Don Giovanni."
The chief disappointment is the omission of convincing arguments that the High Court stands above the president and Congress in shaping American lIfe. The proposition is asserted more as a given, like Isaac Newton's laws of motion, than something open to serious dispute.
Mr. Starr deftly and colorfully sketches the sitting justices and their varied and often clashing approaches to constitutional interpretation. He skillfully explores the prominent doctrines and cases of the Burger and Rehnquist Courts addressing civil liberties, criminal justice and separation of powers. His subtext scolds the Warren Court like a schoolmarm for incorrigibly wandering off the constitutional map, and applauds the more decorous and discreet behavior of its successors.
His attempt to discover unifying themes amongst decisional chaos, however, is unconvincing. Mr. Starr maintains that, "the current Court is moved by large ideas, such as equality," pointing to the Bush v. Gore (2000) decision as demanding equal treatment for all voters. But the Bush majority underscored the narrowness of its holding, and renounced the idea that equal protection required identical vote counting and voter identification procedures in all precincts within a single state.
Moreover, many conceive equality in terms of results, not opportunities, and berate the Rehnquist Court for hostility to affirmative action aiming at proportional representation in all walks of life. Anatole France illuminated the elusiveness of equality as a legal concept with dripping satire: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."
Mr. Starr additionally insists that, "the principle of individual conscience looms large, drawing together a solid majority (although not all) of the justices in the sensitive arena of school prayer or other religious observances in public schools, just as it protects flag burning as a form of free expression." But banning invocations and benedictions at middle school graduation ceremonies commanded only a fragile majority in Lee v. Weisman (1992). Mr. Starr himself recounts how the initial vote was 5-4 against the protest of eighth-grader Deborah Weisman, before Justice Antony Kennedy flipped.
The Rehnquist Court disavowed religiously motivated "conscience" objections to neutral and generally applicable state laws in Employment Division v. Smith (1990) and City of Boerne v. Flores (1995). As Justice Oliver Wendell Holmes observed, general propositions do not decide concrete cases.
Despite Mr. Starr's gallant effort to find intellectual tidiness in the Rehnquist Court, disarray and clashing principles are its hallmark, even within single justices. In a concurring opinion in Ring v. Arizona (2002) requiring juries to find facts justifying capital punishment, Justice Antonin Scalia mocked the alleged inconsistency of Justice Stephen Breyer who generally rejected jury findings of fact regarding sentencing in Apprendi v. New Jersey (2000):
"There is really no way in which Justice Breyer can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land."
According to Mr. Starr, the Rehnquist Court is, "as Bush v. Gore demonstrated, first among equals, the branch of government with the authoritative role in vital issues that deeply affect American life and politics." But that proposition seems dubious. The Court's writ extends only to concrete cases and controversies, not to constitutional issues in general, such as the legality of undeclared war.
Moreover, constitutional boundaries charted by the Court leave vast maneuvering room for the president and congress. Further, the Court is a proven spectator when war, peace, global terrorism, taxes, or the economy are at issue. The Rehnquist Court was silent on the invasion of Panama and the eviction of Saddam Hussein from Kuwait, and has yet to utter a syllable on the war against terrorism and the impending clash with Iraq.
The Court's insertion into the 2000 presidential race in Bush v. Gore is the exception that proves the rule. Indeed, it was unprecedented in more than two centuries, and is unlikely to be repeated for another two.
Additionally, it seems Mr. Bush would have captured Florida under the Florida Supreme Court's decree without a boost from the Rehnquist Court. Its rulings are seldom if ever decisive in American life. Crime plunged in the 1990s without the Rehnquist Court's seriously disturbing outrance precedents of the Warren Court, including Miranda v. Arizona (1966), which the Chief Justice himself voted to reaffirm. The Court has blessed the constitutionality of private school vouchers, but the impact is blunted by the National Education Association.
Finally, the Supreme Court historically has echoed prevailing orthodoxies, whether right or wretched. Discrepancies between its rulings and popular sentiments have invariably been short-lived. While lacking Mr. Starr's monumental learning, Mr. Dooley (a creature of Peter Finley Dunne) may have stumbled on essential truth in observing: "No matther whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns."

Bruce Fein is a lawyer and freelance writer specializing in legal issues.

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