Judging the Court - Book Review

First Among Equals: The Supreme Court in American Life, by Kenneth W. Starr (Warner, 320 pp., $26.95)

To most Americans, Kenneth Starr is known largely as a Javert-type figure who, as independent counsel, hounded Bill Clinton for the multiple indiscretions that eventually led to his impeachment. But that Kenneth Starr does not make so much as a cameo appearance in this new book. Rather, in a self-conscious attempt at political rehabilitation, this Ken Starr goes out of his way to avoid any rancor or recrimination. He heaps praise on Brown v. Board of Education (1954), and often lauds the work of the Warren Court. At other times, he clearly casts his lot with the early-20th-century progressives, who rallied behind Oliver Wendell Holmes's view that the legislature must have its way on matters of social policy and economic regulation, even when it enacts statutes that the judiciary finds naive, futile, or destructive. Only after such genuflections does Starr offer his own measured defense of the Rehnquist Court, against its ever more vocal liberal critics -- who, in the nick of time, have discovered the virtues of judicial restraint.

Starr further softens the presentation of his judicial views with three transparent literary devices. First, he relentlessly personalizes the legal process. He thus offers us fan-magazine-like portraits of sitting Supreme Court justices: Did you know, or care, that Chief Justice Rehnquist's favorite meal is a cheeseburger-and-beer combo? Second, Starr offers us snapshot portraits of his clients -- to show, for example, that Bridget Mergens was truly distraught when Westside High School would not allow her Bible-study group to meet on school grounds. Finally, Starr is ubiquitous in the narrative, appearing variously as solicitor general, circuit-court judge, counselor to the attorney general, and (in earlier days) as law clerk to the chief justice.

The serious reader may find these devices distracting, but he should not be deceived by this appeal to the lay audience. This book also reveals a first-rate legal mind, one that has a real knack for taking apart complex issues and reducing them to their essentials. Starr is keenly aware that in many cases it is difficult to square the broad commands of the Constitution with the complex challenges brought before the Court. The early First Amendment cases of subversive advocacy did not require the judges to dissect complex legislative schemes. Today's First Amendment cases are quite different: The byzantine congressional enactments on campaign-finance regulation -- to take one example -- require the justices to delve into whether the allegedly corrupt state of American politics justifies restrictions on campaign contributions to political candidates, or personal expenditures by political candidates on their own behalf, or both. Starr does an admirable job of sifting through the myriad complexities, and makes a strong case that the American political process is better able to survive open and unregulated political campaigns than the intricate regulations meant to purify them.

Throughout his many discussions, from flag burning and abortion rights to Miranda warnings, Starr projects an image of a thoughtful conservative who seeks to reconcile multiple projects: his strong endorsement of the constitutional norms of liberty and equality; his general acceptance of the doctrine of judicial restraint; and his Burkean conviction that gradual changes through the political process are far preferable to such abrupt judicial revolutions as those wrought by Roe v. Wade (1973) on abortion and Miranda v. Arizona (1966) on criminal confessions.

Unfortunately, these laudable goals occasionally conflict with one another, and that's where some deeper problems with this book manifest themselves. Start with the tension between the constitutional norms of liberty and equality. The First Amendment protects the free exercise of religion while guarding against the establishment of religion. Starr argues forcefully that equality of treatment between religious and nonreligious groups offers the key to understanding the clause. Bridget Mergens should be allowed to have her Bible club as long as any secular group may also use school facilities for extracurricular activities.

This principle of equality works quite well in this case, in which all students are required to pay to support the use of public spaces, but some of the students are being denied equal access solely because of their religious beliefs. Starr convincingly uses this argument to criticize the jurisprudence of the early Burger Court (which, in this as in other areas, out-Warrened the Warren Court) that allowed the exclusion of religious groups from public places to preserve the strict wall of separation between church and state. Starr uses the same line of reasoning to defend the right of parents to use school vouchers at religious schools -- a view the Supreme Court narrowly upheld this past term.