Turning Right: The Making of the Rehnquist Court. - book reviews

Washington Monthly, May, 1992 by Terence Moran

Relax, liberals. The courts have seldom been a crucible of American social justice

There's an old story in American law that David Savage's book brings to mind. On a Saturday afternoon many years ago, Justice Oliver Wendell Holmes Jr. took a break from his work at the Supreme Court and went for lunch with his friend Judge Learned Hand, a man 30 years younger than Holmes who was just beginning a celebrated judicial career of his own. As the two men returned to the Old Senate Chamber in the Capitol Building, where the Supreme Court once sat, they took their leave, and Hand called out to Holmes, "Sir, do justice." The old man wheeled around, glared at his protege, and fired back, "That is not my job. My job, sir, is to play the game according to the rules."

Holmes' candor still shocks. The notion that what's legal isn't necessarily what's just offends a basic principle Americans hold about their society. You might call it the "Shining City" theory of law: Up there on that verdant hill, the law is an essential instrument, not a frequent impediment, to justice. No other nation clings to this illusion with such tenacity.

Chief Justice William Rehnquist and the Supreme Court he has led for five and a half years have systematically set out to disabuse us of this notion. Savage, who covers the Court for the Los Angeles Times, tells the story of Rehnquist's campaign in workmanlike detail. One is grateful for Savage's patient tabulation of the issues and conflicts in many key cases during Rehnquist's tenure as chief, but not particularly moved by his conclusions nor engaged by his narrative. This is a book, perhaps, more of case digests than digested cases.

Part of Savage's problem stems from his perspective. He judges the justices purely by how politically correct their decisions are. When excluded and dispossessed Americans win a vote in the chambers of the Court, Savage calls the result "liberal" and implies (though he never comes out and says it) that this result is good. When anyone else wins, Savage labels this "conservative" and treats it as one might treat an undeserving bestseller-with a knowing disparagement, a whiff of hauteur.

This style of analysis mirrors the mainstream media's coverage of the Court. And for anyone who shares Savage's progressive values, his terminology seems spot on. Indeed, it is salutary to have here a record, damning in its extent, of the winners and losers at the Rehnquist Court. If there were ever any doubt about the chances for achieving further social progress on a national scale through the medium of the Court, Savage puts it to rest.

That, of course, is precisely Rehnquist's point. Social progress, for the chief justice, is exclusively our business, not his (and one gets the distinct impression that he does not wish us well in the work). His job, as Holmes pointed out, is law, not justice. It should come as no surprise to Americans familiar with the role of lawyers in the savings-and-loan disaster, the international arms and drug trades, the takeover gluttony of the last 10 years, and every political campaign, that legal acumen guarantees nothing in the way of civic virtue. One is almost grateful to Rehnquist, a fine lawyer, for reminding us of this.

Regal legals

Savage, however, seems to have fallen for the extravagant claims made on behalf of lawyers and the law over the last generation. He is a devotee of the cult of the Court, hoping to find in its marble temple the fix for most American problems. How far beyond the realm of human limitations Savage is willing to place his justices can be seen in the odd, and slightly dishonest, narrative technique he employs.

Throughout Turning Right, Savage summarizes many cases by perfunctorily outlining the facts, quoting from oral arguments (the book's most engrossing material), and then, in what seems an extraordinary reportorial coup, revealing the justices' debates in conference. Only nine people are privy to those debates; they represent a hidden peak of power in the American government. Savage implies he has scaled those heights. Time and again, he begins a narrative passage with the phrases, "When the justices convened," or "At conference." But all he ever delivers is a little boiler-plate and, worse, direct quotations from the opinions ultimately released. This produces absurdities of "dialogue" such as Sandra Day O'Connor's supposedly telling her colleagues "at conference" that the Court must not "insulate [government officials] (sic) from liability for deliberate and calculated exposure of otherwise healthy military personnel to experimentation without their consent, outside of any combat, combat training, or military exigency, and for no other reason than to gather information on the effect of LSD on human beings." These lines can be found in O'Connor's concurrence in U.S. v. Stanley. That's not reporting; it's xeroxing.

It's also a kind of judicial hagiography, an approach that assumes justices talk like law books. While flattering to the Supremes, this misunderstanding reflects Savage's reverence for those books and his palpable hope that the answers for our civic ills can, or should, be found in their cool, dry pages. In this, Savage typifies a strain of elite liberalism that has come to rely more on litigation than legislation, more on suing people than persuading them, in the struggle for social reform. This error has been nearly fatal to the progressive cause.