Books in Brief
A Year at the Supreme Court edited by Neal Devins and Davison M. Douglas (Duke University Press, 243 pp., $21.95). A collection of ten essays examining different aspects of the Supreme Court's 2002-03 term, a year which the editors characterize as a "watershed." Several of the essays are interesting, but the book as a whole suffers from a lack of context. A central theme is the role played by "swing" justices Anthony Kennedy and Sandra Day O'Connor, Reagan appointees whose votes with the court's left-of-center bloc have given the liberals a majority on social issues. Kennedy and O'Connor have been criticized for a lack of legal principle and inconsistency, and accused by some of tacking to the left to earn accolades and acceptance from the liberal legal academy and elite opinion. For the most part, the authors reject this criticism. But none of the authors explores the fact that both of the swing justices voted with the majority in Bush v. Gore, which earns only a passing mention in the book.
The book contains an uncompromising piece by the National Journal's Stuart Taylor, which condemns the court's opinions in Grutter v. Bollinger and Gratz v. Bollinger--decisions that upheld the University of Michigan's race-conscious admissions policy for the university's law school while striking down preferential treatment for applicants to its undergraduate program. Most commentators have characterized these decisions (to quote Tony Mauro's essay in the book) as upholding the law school's more flexible program "while striking down the more rigidly race-conscious undergraduate program."
Taylor, however, argues trenchantly that the critical difference between the law school and the undergraduate program is that the latter policy was transparent and honest, while the program approved by the court was inscrutable. Taylor points out that the advantages given by the law school to minority applicants were no less rigid and were even more substantial than those provided by the undergraduate program. Taylor also argues that, by endorsing such stealth racial preferences, the Court saved affirmative action, since race-conscious policies are opposed by the "vast majority" of Americans, and these programs are therefore politically unsustainable unless their mechanics are shrouded in confusion.
Taylor's take on the court's counter-majoritarianism makes an interesting contrast with the piece by Jeffrey Rosen, who criticizes the court's decision in Lawrence v. Texas striking down an anti-sodomy law as a violation of an individual's right to privacy and liberty. Rosen is critical of the rationale of this opinion for the same reason that he has been critical of Roe v. Wade, as both represent the Supreme Court getting out ahead of public opinion on a divisive social issue. According to Rosen, the court should only "thwart the will of the majority when the principled constitutional arguments for doing so are overwhelmingly clear and convincing."
A Year at the Supreme Court raises some thought-provoking questions about some of the court's decisions during the 2002-03 term, but the book's premise that there was something uniquely important in that "watershed" year is shaky. Although 2002-03 saw decisions on a number of controversial social issues, it is difficult to conclude that that term was more momentous, legally, politically, or institutionally, for Supreme Court jurisprudence than other recent terms. After all, 2000-01 saw Bush v. Gore, while last year's cases included the terrorism cases as well as Blakely v. Washington, which, in striking down a determinate sentencing regime, has thrown the criminal justice system into disarray.
--Aitan Goelman