A Court Divided: The Rehnquist Court and the Future of Constitutional Law (review)

With the reelection of George W. Bush and the aging of the Supreme Court's justices, political commentators recognize that American constitutional law might be at a crossroads. In this volume Georgetown University law professor Mark Tushnet offers his reflections on the recent history and future of constitutional law in the United States. Since he has written his book for a general audience rather than specialists in constitutional politics, the book is an enlightened reflection on what the justices of the Rehnquist Court (1986–2005) have said about American politics and rights and what they might say in the future. Written in a breezy, personality-focused style that should attract readers with a passing curiosity in the Court, he wants to persuade the reader that the Rehnquist Court offered no unified constitutional vision or way of describing what is right and just and that the future of American constitutionalism depends in large measure on electoral politics.

Despite largely being a selective history of the Rehnquist Court, this is a book that has two implications for persons who study the use of persuasive rhetoric about American politics. First, it is a book that examines how the justices have tried to persuade each other and the public of the value of their interpretations of the language of the Constitution. To do this, as in most studies of the justices, Tushnet explicates the meaning of the justices' opinions. After an initial chapter that offers a quick review of the recent history of the Court, the conservative legal movement, and the ideology and opinion writing style of Chief Justice William Rehnquist, he offers his thesis: two different kinds of Republican presidents' appointees plus Democratic appointees have created a divided Court or a Court without a singular vision of the meaning of constitutional government. To buttress this point he points to the issues that separate Justices Sandra O'Connor and David Souter from Justices Antonin Scalia and Clarence Thomas.

Then Tushnet offers chapters to provide more evidence in support of the thesis. He does this in two ways. Four chapters attempt to expose the differences among the justices through an examination of the opinions of Justices Thomas, Ruth Bader Ginsburg, Scalia, and Anthony Kennedy. None of the chapters fully explores the jurisprudence of each justice. Instead, Tushnet attempts to reveal the core of a justice's political and legal vision and argumentative style by a selective analysis of their opinions, off-the-bench writings, and reports of personal behavior. Therefore, he discusses Thomas's use of history and natural law and conception of race. This discussion is followed by commentaries on Ginsburg's treatment of gender with attention to the Virginia Military Institute admissions case, Scalia's status quo version of First Amendment rights and formalist jurisprudence, and Kennedy's approach to gay rights. Although the point is not belabored, the reader is made aware of the significant differences among the justices in their constitutional theory and opinion rhetoric.

Tushnet then shifts gears and offers commentary on the Rehnquist Court's decisions on religion, abortion, race and crime, federalism, takings, and awards for damages in personal liability cases. These chapters argue that the divisions in the Court have forestalled the Court from advancing the political agenda of both the right and the left. Instead, he contends that the victories of the religious right have, in the Rehnquist Court, had limited political effects, the Court has held the line on the limited legality of abortion against assaults from the right, and the justices have looked at race in affirmative action cases through the lens of the white majority rather than the race-conscious vision of the left. Additionally, he finds that the much ballyhooed decisions of the justices in federalism, the Takings Clause, and awards in personal injury cases have not upset the political status quo. He argues that, rather than swing power away from Washington, the federalism cases only...