A Court Divided: The Rehnquist Court and the Future of Constitutional Law by Mark Tushnet

My rating: 4 of 5 stars


"The story of the Rehnquist Court is the story of a court divided not simply between liberals and conservatives but, more important, between two types of Republican."

The role of the US Supreme Court in shaping the country and the recent evolution of the court are my favorite topics: I believe that no other institution, not the President, not the Senate, and not the House has a more significant impact on the life of US citizens. Mark Tushnet's A Court Divided (2005) is the eighth book dealing with the Rehnquist era of the US Supreme Court that I have read in recent years. (The links to my reviews of these works can be found in this review .)

The main theme, as shown in the epigraph, and the main dramatic axis of the book is the struggle between "traditional Republicans" on the court, like Justices O'Connor or Souter, and the "modern Republicans", shaped by Ronald Reagan and primarily by Barry Goldwater, represented on the court by Justices Scalia and Thomas. The modern conservatives had hoped for a judicial revolution that would overturn the liberal legacy of the Warren Court: it did not happen. The "centrist" traditional Republicans almost always managed to tip the balance of power away from the "revolutionary" modern Republicans by siding with the more or less liberal wing of the court.

I am an ignoramus in legal issues, particularly in the areas of constitutional or business and property related law, so a lot of the author's good work has been wasted on me. I am mostly interested in the social issues and I have found a lot of material in Mr. Tushnet's work that I have not seen before. Also, some material seems to be presented with more clarity here. The in-depth discussions of the First Amendment cases, affirmative action, gender equality, and gay and minority rights are presented exhaustively and convincingly, even for a legal dilettante such as this reviewer.

Most of the book is as compulsively readable as good fiction. The profiles of individual justices that include biographical sketches and studies of their judicial philosophy are particularly interesting. I have learned something new about justices Rehnquist, O'Connor, Souter, Scalia, Thomas, Ginzburg, and Kennedy. Even the less exhaustive portraits of justices Stevens and Breyer are illuminating.

Several themes caught my attention. I find it hard to agree with the author's convoluted interpretation of the Anita Hill's case during Thomas' confirmation hearing. The author seems to be backing away from what he had written in an earlier book on that subject, where he concluded that judge Thomas had lied. The whole issue has suddenly gained a lot of currency these days with the recent wave of sexual harassment accusations. On the other hand, it is also interesting how merciless Mr. Tushnet is in debunking Justice Scalia's image as an intellectual giant on the Supreme Court. The reader will find a lot more good stuff. A highly recommended read.

Four stars.



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