Book Review

First Rate:
First Among Equals
by Kenneth W. Starr
(Warner Books, 2002)

reviewed by Richard A. Forsten, Esquire

Is the Rehnquist Court truly embarked on an anti-democratic, conservative revolution rolling back precious civil liberties and eviscerating constitutional rights? That may be an impression created by some in the popular media, but, as former judge and former Solicitor General Kenneth W. Starr argues in his new book, First Among Equals, The Supreme Court In American Life, the Rehnquist Court is hardly the monster that many portray it to be. Indeed, as Starr makes clear, if the Court is to be called conservative, it should be called conservative in the judicial - rather than the political -sense, as the Court has upheld many "liberal" decisions despite the opportunity to reverse them.

Judge Starr brings a somewhat unique perspective to his work. He was a clerk to former Chief Justice Warren Burger, he was Solicitor General, and he was a federal appeals court judge. Thus, he has seen the Court and its work from several perspectives. Whatever one may think of his tenure as special prosecutor or his politics, Starr's book is nevertheless an excellent overview of several important areas of constitutional law during the last thirty years or so, is written in an accessible style, and is much more balanced than many would probably guess.

In fact, not only is Starr's book more balanced than some would guess, but so too the Rehnquist Court has shown more balance than many would guess. The Court has refused to overrule the Miranda decision (once one of the most despised Warren Court decisions that conservatives railed against); the Court has refused to overrule Roe v. Wade; and the Court has refused to do away with the exclusionary rule (albeit nibbling away at its edges). Moreover, the Court has protected flag burning, ruled that a prayer included in a public school graduation ceremony was unconstitutional, and upheld at least some political campaign contribution limits and restrictions. None of these decisions would seem to be the product of a Court bent on a conservative (in the political sense) revolution.

Starr's book is divided into three parts. Initially he provides some background on the Court and its members, discussing Marbury v. Madison and the principle of judicial review, as well as providing brief descriptions of the current nine justices and their judicial outlooks and philosophies. Having sketched his background, Starr then looks at several areas of constitutional law and describes the important decisions of the Rehnquist Court in those areas, including free speech, campaign finance laws, separation of church and state, abortion and the right of privacy, affirmative action, and criminal procedure. Generally speaking, Starr paints a picture of a cautious, judicially conservative court that is sensitive to precedent and unwilling to go too far in any one direction. Thus, the Court has upheld Roe, but has refused to extend the right of privacy to other areas such as the right to die. Finally, Starr looks at the structure of the federal government and the Court's role in that structure. He notes the Court's change in statutory interpretation, from deference to an agency's interpretation to a more textually-oriented approach. He discusses the Court's federalism cases, and the Court's role in cases involving the powers of the executive branch. Finally, Starr concludes with a discussion of Bush v. Gore, but the discussion is short and somewhat rushed. Because of the nature of that case, the partisan feelings the case often arouses, as well as its somewhat unique nature, one suspects that any attempt to fit the case with the Rehnquist's Court's overall jurisprudence will be less than satisfying. Moreover the case is simply too complex to discuss effectively in a short chapter. Interestingly, though, Starr does express his own surprise that the Court decided to hear the case not just once, but twice.

Starr's writing is not technical or full of legalese. Rather, he writes with an appreciation for non-lawyers who also want to understand the Court and its workings. In short, the book is a fairly good overview of several important areas of constitutional law during the last thirty years. Along the way, Starr also provides some interesting ideas about what he believes underlies much of the Court's working in seeming disparate areas, including equality, neutrality and restraint. These observations are especially interesting as a way of "connecting the dots" (as one of my law professors used to put it).

It is no accident that Starr begins his book with the story of Marbury v. Madison and ends with Bush v. Gore. Both cases deal with the supremacy of the Supreme Court in the matters brought before it. We learn in elementary school that our government consists of three equal branches - legislative, executive and judicial - but, time and again, beginning with Marbury and most recently with Bush v. Gore, the Supreme Court has shown that it is the first among equals.

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