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First Among Equals
The Supreme Court in American Life
by Kenneth Starr
(Click for Amazon book review)
OnTheIssues.org BOOK REVIEW:
This book is Kenneth Starr's memoir. Starr is best known for his role as the Special Prosecutor in Bill Clinton's impeachment, but Starr WANTS this book to not be about Clinton. Hence Clinton is barely mentioned, and instead the author couches the book as a review of the Supreme Court from 1787 to date. The author also attempts to depoliticize himself, citing his service with liberal justice Ruth Bader Ginsburg and his interactions with numerous other liberal justices. To demonstrate just how deeply all the Supreme Court Justices regard Starr, the author frequently cites those justices calling him "General Starr" (as in Solicitor General, his title).
For those who don't recall Starr's politicized activities of the 1990s which he avoids in this book, Starr led the inquiry into Whitewater for the period 1994 to 1998, which resulted in Bill Clinton's impeachment in 1998-1999. While the investigation was called "Whitewater" because it started off investigating a real estate deal alongside the White River in Arkansas, it ended up investigating Clinton's extramarital affair with Monica Lewinsky. OnTheIssues is made cynical about that investigation because we read The Starr Report, which cost $40 million in taxpayer dollars to produce a detailed description of Clinton's sexual escapades involving Monica and cigars, which many mockingly called a Starr Chamber (a term which pre-dated Starr and which means a court that politically decided its judgment in advance).
The author explains the apolitical rationale for this book on p. xix: "Many books have been written about the Warren Court, but there are fewer about the Courts that came after it. This is a book about those Courts. This book aims to draw a clearer picture of this Court, as it is composed today." The core theme of the book is whether the Supreme Court has historically been "activist," which means whether the Court creates law rather than merely interpreting the Constitution. Starr notes that the Court is often "accused of activism" and cites Roe v. Wade as "a prime example" that the court "at times engaged in activism." Starr claims that judicial activism was conceptually founded in the Warren Court, and while practiced in subsequent courts, each later Court "lacked its predecessor's almost missionary zeal to reshape society."
In general, Starr dislikes the Warren Court (1953-1969, which is considered historically liberal) and dislikes judicial activism in general. Inparticular, Starr prefers the Rehnquist court (1986-2005, which is considered historically conservative); Starr evidently loves Justice Scalia, but calls Justice Souter and his liberal teammates "forlorn liberals" (p. 43).
The book's title refers to the role of the Supreme Court as the highest of the three constitutionally equal branches of government. Starr writes, "It is, as Bush v. Gore demonstrated, first among equals, the branch of government with the authoritative role in vital issues" (p. xxvii). Starr makes the obligatory reference to Marbury v. Madison, an 1803 case that established that the "Supreme Court is the final arbiter of the meaning of the Constitution" (p. 12).
Starr explores the Bush v. Gore case in some detail -- that's the Florida recount in 2000 where the Supreme Court ruled in favor of George W. Bush winning the Florida electoral vote and hence the presidency. Starr refers to that case as evidence of the court's "first among equals" status: "Who would have thought that the Supreme Court would in effect pick the individual who would in turn pick the next justices?" (p. xviii). While Starr cites Bush v. Gore as "judicial activism" as viewed by liberals, and even many conservatives, Starr concludes in his last chapter that Bush v. Gore was decided on the principle of equal representation. This cynicizes us beyond cynicism, to the point where the entire book must be viewed cynically: Bush v. Gore was decided on political grounds, and Starr attempts to justify that political decision with an explanation based on "principle." That 2000 decision permanently changed OnTheIssue's viewpoint that the Supreme Court did anything OTHER than make political decisions -- and Starr's attempt to justify it as "principle" is as much a cover-up as Bill Clinton's hiding his cigar-based activities with Monica Lewinsky.
We at OnTheIssues have no objection to the Supreme Court deciding cases politically. We view the Supreme Court as just another political body, and we cover the Supreme Court justices on the issues in the same manner that we cover all other politicians. We object to Starr's contention that the Supreme Court acts on "principle" unlike other politicians. All politicians sometimes act "on principle" -- those in Congress "vote their conscience" sometimes -- and at other times act politically -- those in Congress "vote their constituency" sometimes. Members of Congress (and Presidents, and Governors, and all other politicians) must decide for each issue whether to "vote their conscience" or "vote their constituency." Politicians might do the former more often on smaller issues, and do the latter more often on bigger issues (those where the press reports that a major vote was "split along partisan lines", because there is a Congressional leadership position, called a "Whip", whose role is to ensure that members "vote their constituency" on bigger issues!). We concede that perhaps the Supreme Court Justices "vote their conscience" more than they "vote their constituency," in comparison to elected politicians, since they are appointed for life -- but on the bigger issues, they behave just like other politicians. On the biggest political issue of all, Bush v. Gore, the Supreme Court "split along partisan lines" -- that is the most solid proof that Justices are politicians like any other.
Starr's book overall is a good read for political junkies. The Supreme Court is the most hard-to-understand branch of government, and Starr does a good job demystifying terms like stare decisis and mens rea. By "political junkies," we don't mean lawyers or Supreme Court fans -- we mean typical political junkies who follow Congress and presidential elections and would like to understand the Supreme Court more -- this is a solid book for that crowd. But the most important fact for that crowd to understand about the Supreme Court is the one fact that Starr covers up -- Supreme Court justices decide their cases politically, and Supreme Court justices are politicians at their core.
-- Jesse Gordon, editor-in-chief, OnTheIssues.org, Oct. 2013
The Supreme Court in American Life
by Kenneth Starr.
Page last edited: Jun 11, 2014