From 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. Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.


From The Washington Post's Book World/washingtonpost.com
If there is one question about the Rehnquist court that maddens conservatives and titillates liberals, it's this: Why can't a Supreme Court with seven Republican appointees reverse the Warren court revolution once and for all? Why are affirmative action and abortion still the law of the land? No one truly understands it, but partial explanations abound: Perhaps it's that jurists grow more liberal as they age; perhaps Chief Justice William H. Rehnquist (or alternatively Associate Justice Antonin Scalia) didn't have the acumen or temperament to truly steer the court the way Earl Warren or even William Brennan did; maybe failures in the judicial selection process led to "Borkings" (wherein great conservative jurists' nominations were quashed) and their inevitable by-product, "Souter-ings" (wherein sneaky liberals slunk through confirmation dressed as great conservative jurists). But perhaps the most widespread theory about the failure to roll back the legacy of the Warren court touts the hegemonic control exercised by the court's two "swing voters" -- Anthony Kennedy and Sandra Day O'Connor, frequently portrayed in the media as "swingers," both in the sense of being utterly unpredictable and of being wildly subject to external influences. The legal scholar Mark Tushnet has another, more nuanced spin on the court's ideological inconsistency: A Court Divided attributes the failure of the Rehnquist court to act as a monolithic counterweight to the excesses of the 1960s and '70s to the fact that the court's conservatives are far from monolithic in their own ideology. Instead, they embody an unhappy marriage of "two types of Republican": those "speaking for the modern Republican Party, transformed by Barry Goldwater and Ronald Reagan" and more traditional Republicans sympathetic to the cultural and social issues "represented [by] an older Republican tradition." This analysis is stated several times throughout the book, but never quite unpacked: Instead, A Court Divided is itself essentially divided into two books. The first half offers incisive and frank case studies of several (mostly conservative) jurists on the court, braided with lucid explanations of their key innovations. We are treated here to clear and revealing mini-essays about Scalia's views on free speech and Clarence Thomas's take on "originalism." The second half of the book explores Rehnquist court advances (or retrenchments) in important areas of the law -- including abortion, affirmative action and federalism -- with Tushnet generally arguing that rumors of a Rehnquist revolution are greatly exaggerated. In his conclusion, Tushnet again takes up the question of the division among the court's conservatives to suggest that future vacancies may not provoke apocalyptic confirmation battles. The court, as he sees it, is essentially a moderate institution that -- with rare exceptions -- follows the policies and preferences of the elected branches of government and the electorate. It's hard to agree completely with Tushnet's thesis about the reason Rehnquist -- who ascended to the chief's spot deeply disgusted with what he saw as the excesses of the Warren court -- failed to ignite a counter-revolt. Tushnet's claim that the rift behind the stalled revolution is a product of a culture clash between "old" and "new" Republicans can strain credulity. (For instance, it's hardly clear that "country club" Republicans like O'Connor and David Souter are benignly predisposed toward gay sodomy.) Nevertheless, A Court Divided is everything a book about the Supreme Court ought to be: clear, engaging, laced with gossip and mercifully uncluttered by footnotes, endnotes or string citations. It is, in short, a brisk ride through 30 years of high-court jurisprudence with a slightly mussed constitutional law professor in an open Jeep. Tushnet, who teaches at Georgetown University and clerked for Thurgood Marshall, makes the perfect tour guide through this sometimes dusty terrain. For example, the radical shift in the court's federalism doctrine -- its counterrevolution against congressional overreaching in federalizing local law -- is clearly presented through the case of the alleged rape victim Christy Brzonkala, which led a divided court in 2000 to strike down portions of the Violence Against Women Act. Tushnet's gift lies in narrating from the ideal middle distance, making even four-part balancing tests accessible to the lay reader. To be sure, he has made some odd stylistic choices, both in terms of organization and substance. The thematic division of the book into justices and areas of law obscures some fascinating implicit truths -- for instance, that so many of the Rehnquist court's key strikes against Warren court precedents have involved framing civil rights issues (including commercial regulation or government funding for religion) as simple free-speech contests. And Tushnet talks about the justices and their writings in an awkward past tense -- as though he couldn't trust that some, or even all of them, won't have keeled over between delivery of his final manuscript and his publication date. Moreover, his choice to focus in the first half of the book on the personal psychologies and preferences of the justices he profiles overemphasizes a point he downplays later: that for many of these jurists, personal preferences, experiences and predilections really do overwhelm their stated legal philosophies. But A Court Divided is a brave book. As Tushnet goes out of his way to say in his introduction, too much lay writing about the court involves either "cheering or booing" its decisions, and such endeavors do little to help the public understand how the court works. Tushnet doesn't pull punches, stating flatly that "Antonin Scalia isn't as smart as he thinks he is" and even loosely ranking those justices who might give Scalia a run for his money in terms of sheer brainpower ("Rehnquist, Stevens, Breyer, Souter, and Ginsburg"). Tushnet is pitiless when it comes to condemning Scalia's abrasive, often abusive personal attacks, which he dismisses as "the sound bite style of Crossfire" and as less than intellectually persuasive to boot. But lest you suspect that he's advancing a canned liberal agenda, it's worth noting that Tushnet's most generous portrait by far is of Clarence Thomas -- a man whose legal work he characterizes as "more interesting and distinctive than what Scalia has done" and with "a greater chance of making an enduring contribution to constitutional law." Mostly, this is a brave book because Tushnet isn't afraid to challenge the conventional wisdom, emanating now from both sides of the political spectrum, about the excessive powers of the high court and the doomsday that will follow any new appointments. Instead, he advances the notion of a "collaborative Court" in which "who is on the Court may matter less than what's going on in the political process." Perhaps the court is not driving national policy after all but taking its cues from the elected branches. Tushnet concludes that the Rehnquist court's "division between economic issues and social issues mirrored what was happening in politics generally: Conservatives were winning the economic war" but losing the culture war. (Indeed, they're losing that war because the country club Republicans won't stay on the reservation.) All of which means that recent efforts to remove the power of constitutional review from the courts, impeach "activist judges," limit judicial terms or exercise the "nuclear option" at confirmation hearings are misguided and unnecessary. 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. Reviewed by Dahlia Lithwick Copyright 2005, The Washington Post Co. All Rights Reserved.


From Booklist
Tushnet, a constitutional law professor, asserts that in a Supreme Court comprising a majority of justices appointed by Republican administrations, Rehnquist was the first to bring an extreme conservative perspective. He also asserts that despite arguments to the contrary, conservative justices have been just as activist as liberal justices, just headed in an opposite direction. Tushnet traces the rising judicial conservatism since the shift from Goldwater's to Reagan's influence on the Republican Party, through the administrations of Nixon and Bush I and II. Tushnet explores how the split within the Republican Party--between arch conservatives who favor big business, small government, and demonstrate what some consider insensitivity on social issues, and moderates who, though just as pro-business, are more sensitive on social, racial, and human rights issues--is reflected in the perspectives of the Supreme Court justices and the decisions they render, and the impact the overall conservative shift will have on the court in the future, as Rehnquist's retirement is considered imminent. Vernon Ford
Copyright © American Library Association. All rights reserved


Book Description
On the eve of Justice Rehnquist's retirement, a penetrating view of the dynamics—political and personal—of the Supreme Court. Many think that the Rehnquist Court's most important division is between its liberals and its conservatives, when in reality the division lies between two types of Republican conservatives. Some—Rehnquist, Scalia, and Thomas—are in tune with the modern post-Reagan Republican Party, while Kennedy and O'Connor, considered to be in the Court's center, represent an older Republican tradition. As a result, the Court has modestly promoted the economic agenda of today's conservatives but has regularly defeated the conservatives' agenda of social issues. One of America's finest professors of constitutional law, Mark Tushnet narrates the dramas of the Court—both intellectual and personal—with clarity and flair. In this authoritative analysis of the most important cases decided by the Rehnquist Court, he reveals how the decisions of these divided justices have left the future of the Court—and the nation—hanging in the balance with all depending on the next court appointments after the elections in November.


About the Author
Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center. He lives in Washington, D.C.

FROM THE PUBLISHER

The dramas of the Court - both intellectual and personal - have turned on and determined the most important cases of our time: gay rights, abortion, affirmative action, crime, hate speech, advertising, and big business. They have resulted in the undoing of legislation that characterized the New Deal and had seemed unassailable for a half-century. Here, Mark Tushnet both provides a clear and accessible history of the nation's last half-century under the rule of law and shows why the next half-century and more depends on the next Court appointments.

FROM THE CRITICS

Dahlia Lithwick - The Washington Post

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.

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