|Jan Crawford Greenburg has written in Supreme Conflict a fast-moving account about the fight for control of the Supreme Court.
Beginning in the 1950s civil rights groups increasingly turned to the courts to protect the rights of the minority against the tyranny of the majority. The court responded by attempting to solve the most vexing social problems.
|While liberals believed this was a proper role for the Supreme Court, conservatives saw an arrogant power grab by the court.
The book is more than an academic treatise on the court based on collections of notes, documents and papers. Greenburg spent hours interviewing not only many current and former administration officials but also more than a dozen federal appeals court judges and nine Supreme Court justices.
She takes a fresh approach at looking at the court. The book is more about the justices as individuals than the court as a whole.
She writes that Justice Clarence Thomas, rather than being Justice Antonin Scaliss intellectual understudy as the conventional wisdom would have you believe, is instead forceful in voicing his views in conference. Its more likely for Scalia to change his opinion to Thomass, rather than the other way around.
The underlying theme that runs throughout the book is the Republicans 4-decade long campaign to move the Supreme Court toward the right.
Beginning with President Nixon appointment of four justices, including Justice Harry Blackmun who moved left and wrote Roe v. Wade, 1973, a decision that would outrage conservatives for decades to come and change forever the tenor of confirmation hearings, Greenburg highlights the Rights enormous exasperation over the Supreme Court, often caused by their own missteps.
She opens up a door to allow the reader a look behind the nomination process. When Chief Justice Warren Burger retired in 1986, President Ronald Reagan was at the height of his popularity. He would have been successful in appointing anyone he wanted to the Supreme Court.
President Reagan choose to nominate Justice William Rehnquist for chief justice. To replace Rehnquist as associate justice the choice was between Scalia and Robert Bork. Reagan choose Scalia because of political consideration. He would be the first Italian-America justice. During the hearings Rehnquist nomination was contentious but the charming Scalia sailed through the process.
A year later Reagan had his chance to nominate the very conservative Bork. But now Reagan was a weakened president because of the Iran-Contra scandal. Adding to Borks troubles, was his personality.
Greenburg explains: He came across as arrogant and dismissive, playing into the hands of his opponents, who effectively portrayed him as cold, uncaring, and unsympathetic to the problems of ordinary Americans.
The full Senate turned down his nomination causing the conservatives to lose another chance to redirect the court. Greenburg argues Reagan should have reversed the nomination order for Scalia and Bork.
The planned nomination of Kenneth Starr by President George H.W. Bush ended when he was convinced not to do it by his Attorney General Richard Thornburgh.
Bush only backed down after Thornburgh threatened to resign over the nomination. Bush then nominated David Souter, then a New Hampshire judge. Souter with little experience in the big issues that the Supreme Court decides moved toward the left as he gained experience on the Supreme Court.
She writes about the political nature of the nomination process. The nomination of Harriet Miers caused such an outrage not from the Democrats as one would expect but from the far Right who wanted to see a paper trail.
Greenburg paints a portrait of the ever-changing dynamics of the court. With Thomass arrival at the court, for instance, the brash and politically unskilled Thomas caused an unexpected shift in the courts power balance to the left.
Greenburg explains: By the end of Thomass first year, [Sandra Day] OConnor and Souter and to a lesser extent [Anthony] Kennedy had moved left, a shift that would ultimately prevent conservatives from undoing the liberal legacy of the Warren Court under Rehnquists leadership.
The court again was push to the left after the 2000 presidential elections because as she writes, that decision opened the court to withering criticism for deciding the case on politics, not law. True or not, justices OConnor and Kennedy, Greenburg writes, became wary of being cast as predictable conservatives.
The book flows smoothly from chapter to chapter. This is an easy, fast read. When the books needs to explain legal jargon, Greenburg weaves the explanation into the story without breaking the storys continuity.
She writes of Chief Justice Rehnquist assigning an opinion to Justice Thomas about a robbery case that came out of conference with a 90 agreement. This should have been an easy short opinion saying there was enough evidence for a conviction. Thomass draft opinion instead went into a lengthy historical analysis of earlier cases and habeas corpus. All but Scalia and Rehnquist backed away from this opinion and wrote concurring opinions.
Greenburg explains the consequences of having a plurality opinion instead of an unanimous opinion is that a decision now doesnt have precedent-setting value or bind the lower courts.
She tells of the sparks that flew between Thomas and OConnor in this case. Greenburg writes: in a separate concurrence she eviscerated Thomas, mentioning him by name eighteen timesbut OConnor was brutal, paragraph after paragraph. OConnors opinion was a stinging lecture on the law.
Justices Thomas and Scalia meanwhile were quickly finding common ground.
Not until the successful nominations of John Roberts, Jr. and Samuel Alito, Jr. has the conservatives seen the light at the end of the tunnel. Roberts and Alito are collegial and savvy. Their people skills will allow them to keep the moderate Kennedy in check. Along with the more conservative Scalia and Thomas, the conservatives may have completed their goal. A conservative Supreme Court ready to give up power and role back civil rights.