Starr lite - Book Review

Washington Monthly, Oct, 2002 by Tony Mauro

FIRST AMONG EQUALS: The Supreme Court in American Life by Kenneth W. Starr Warner Books, $26.95

IN THE MIDDLE OF AN APPEARance before the Supreme Court in 1993, then-Solicitor General Kenneth Starr offhandedly told the justices he wanted to "share" with them the background of the case.

"Why not tell us," snapped Chief Justice William Rehnquist, always on the lookout for flabby locutions, "rather than sharing it?"

Reading Starr's book on the Supreme Court can also provoke frustration with the author as he describes, with studied evenhandedness, the Supreme Court's major cases and trends. What does Starr really think about Bush v. Gore, the 2000 case that decided the presidential election? And what does he think of the court's pro-state federalism juggernaut? In both instances, knowing Starr's conservative politics, one strongly suspects that he approves. But you wouldn't know it clearly from reading his text.

He calls one of Theodore Olson's pro-Bush arguments in Bush v. Gore "perfect," but he also calls Justice Stephen Breyer's pro-Gore dissent "eloquent." And in a labored conclusion, he leaves the reader guessing where he stands: "One is left with the impression that the Court, by virtue of its independence, remains aloof from the strong sense that it had usurped power and intruded into the province of both the states (or at least Florida) and the Congress in resolving the ultimate political question in American politics: who the president shall be." Exactly. Tell us something we didn't know.

Starr, now in a superstar private practice at Kirkland & Ellis, does occasionally fire off zingers to demonstrate that he, like President Bush, has issues with the wine-swilling Clintonites of Martha's Vineyard. He describes Justice John Paul Stevens as "a dream justice by the standards of the New York Times editorial board and the cultural elite," and calls Ruth Bader Ginsburg "the reliable liberal that President Clinton sought." Sandra Day O'Connor is the court's most powerful justice, in Starr's view, and Clarence Thomas "its most original thinker."

And Starr does go a long way toward proving his thesis that the current Supreme Court, through its rulings as well as its aggressive self-image, has become the dominant branch of government. With remarkably few second thoughts, the court has elbowed Congress, the executive branch, and even state courts--as in Bush v. Gore--aside in a wide range of cases. The justices say some body has to clean up the messes left by the other branches. Liberals call it judicial activism. Starr ably presents both sides of the debate, but his own verdict is harder to discern.

Starr may have held back because he still has to work with the justices in his practice. Or he may have wanted to restore his image as an honest broker. His last appearance on the public stage was highly charged. Many Washingtonians will never forgive Starr for his zeal, as Whitewater independent counsel, in detailing Bill Clinton's relationship with Monica Lewinsky. Starr's book is silent on that whole assignment.

Instead, Starr gave himself the burden of explaining how the court got to its current place in the political landscape--not justifying or attacking it. He has taken the mandate a shade too seriously, asking rhetorically at one point whether the court has placed itself above the Constitution or is making itself the supreme law of the land. "Such questions deserve an answer," Starr writes, as if he is about to provide that answer. Then he changes the subject.

TONY MAURO is the Supreme Court correspondent for Legal Times and American Lawyer Media.