Tushnet (2005) takes an insightful look into the current Supreme Court and what it means for the future in his work entitled A Court Divided. Much has been discussed about the Court, particularly since the 2000 election ended up being referred to the judicial branch of government. Constitutional law has always been fascinating subject, as it broaches the areas of guaranteed legal protections. Landmark decisions change the course of history and determine which rights the people have and have not. The book addresses the obvious problems.
First, the author identifies the division between liberal and conservative judges. These two divisions have played a huge role not only in the court systems, but in the political arena as well. Because the president is able to appoint judges, many people believe that he will appoint someone like himself. A Republican president will appoint a conservative and a Democrat will appoint a liberal. Although this is largely the case, all too often surprises emerge. It should really not be a surprise at all that judges have their own minds and are not stereotypical.
Brilliant men seldom have one mindset, even though they may lean one way or another. Still, the idea that the president may appoint chief justices does suggest that, like a game of chess, the future of Constitutional law is to some extent contingent on who is president. Depending upon the makeup of the court at the time, one appointment can change a great deal and shift the court either to the right or to the left. The author does admit that the court is divided by party or ideology, but he does contest the argument that a particular type of judge will always go a particular way.
Rather, he looks at each individually and notes each of their distinct prejudices. The idea that the conservatives and liberals are at odds is not necessarily true and instead the author vies for a theory that shows divisions in certain subject areas. It is not necessarily the case that conservatives will side one way or another. For example, the author points out that many social issues are not ruled conservatively and this is because some of the fiscal conservatives on board are really just fiscal conservatives.
It appears that what the author is saying is that while there are certainly tendencies for a judge to veer right or left, it is the composition of the court at any given time that really dictates the outcome. Although he does not say so in so many words, the author does express the idea that the court is predictable when one has the right tools of analysis, but it is not predictable based on the ratio of conservative to liberal judges. That is a misnomer. Of course, if that is the case, much attention that is paid to the appointment of judges is not warranted.
Hence, the author expresses a point that has been made by some but is largely disfavored by a media that loves to accentuate the relevance of appointments. Tushnet’s (2005) point is this: he claims that judges are activists in their own way. This is quite a controversial position. Not only does he make this blanket statement but he goes through the court, judge by judge, and discerns each of their preferences. The reason why this is controversial is that the concept of judicial activism itself is controversial. Historically, during the judicial review process, restraint is admired.
Judicial restraint is about trying to maintain the integrity of the Constitution, even if it means holding on to unfavorable legislation or not acting according to conscience. In other words, according to this idea, a Supreme Court justice should want to interpret the law as conservatively as possible, so as not to change the meaning of the Constitution. This is similar to other types of cases where a judge must stick to what the law allows and not what he or she thinks is right. By being conservative in interpreting law, and trying to stick as close to what the Constitution had intended as possible, one is exercising judicial restraint.
Yet this author says, and it appears to be so, that the court has exercised judicial activism. Roe v. Wade is a case in point. Activism goes to the idea that the Constitution may be interpreted in a broad manner where the mores of the day are considered. Today, the most significant issue facing the legislature and the courts is the concept of gay marriage. While these issues are to some extent tackled by Tushnet (2005) it is only in the context of the larger subject which is how the court is divided. As its title suggests, this work is about the division of the court, not important Constitutional debates of the day.
Again, the division is not Republicans versus Democrats nor is the division between hard line conservatives and liberals. It is, rather, a court divided by conservatives who each have different opinions. What happens is that the liberals are seemingly true to their labels but on the conservative side, there are varying shades of conservatism. It appears that this is what divides the court. Tushnet (2005) does present a plausible thesis. At the same time, while delving into the specifics and the ins and outs of the Supreme Court, he also adds a human face.
The author goes into the background of each court justice. By looking a their personal lives, one can see that they are after all only human. Justices are often presented as larger than life, as if they lived in the Court itself and had no other life. But they are people, just like anyone, and this is something that the author accentuates. The humanness added to the volume does separate this book from others like it. Not only is it a good read in terms of theory, it also captures the interest of the reader by delving into personal issues that the judges encounter.
It also helps to understand why they take the positions they do. Rather than detracting from the notion that the Supreme Court is fair, one may take from this book the idea that the court is extremely fair and that, more importantly, the system works. Today, Constitutional law is quite important, particularly with the makeup of the judges on the bench. Rehnquist now has cancer and is getting on in years. Of course, while it is true that this will change the aura that the court now emits, the book also provides a certain irony. In effect, it does not matter.
Each of the judges are individuals who wrestle with the ideas of judicial restraint and judicial activism. They each come from different backgrounds and no one judge rules in accordance with a party platform. That said, whatever happens in the future, it seems that the Court is in good hands. By the time a judge is appointed, he or she will have been scrutinized and again, there is little in terms of predictability on which one can rely. Will the future of the court be more conservative if a Republican president must select a new candidate? It does not matter.
Again, Tushnet’s (2005) premise is that the court is divided by Conservatives. Bush is a quasi-conservative president as he does support many liberal views. Immigration is one example and the topic is tied to Constitutional law to an extent. In conclusion, Tushnet writes an excellent review of the Court, and one that helps the reader understand the decisions that were handed down in recent years, and why they were made. His easy writing style and attention to detail makes for a marvelous read for any law student or layman who wants to understand what makes the Supreme Court justices tick.
