Deciding to Decide: Agenda Setting in the United States Supreme Court.

• Author: Williams, Stephen F.

I

A blurb on the cover of David Savage's Turning Right declares that the book

is a remarkably comprehensive and comprehensible history of one of the

most crucial moments in American constitutional history - when the

Reagan-Bush Supreme Court began the process of repudiating the Warren

and Burger Courts' efforts to make the Constitution a bulwark for

individual rights and an enzyme for social justice. . . . Basic reading for

anyone who wants to understand the process by which the Supreme

Court became the liberals' nightmare.(1)

Those who believe that this comment aptly summarizes the relation between the present Court and its predecessors will enjoy a shiver of excitement from Turning Right's portrayal of the black-robed barbarians at the gate. Those who take a more nuanced view of the Court's evolution will not find much enlightenment.

As the blurb suggests, the book's leitmotif is that the Court's post-1980 appointees have set out with bulldozers to dismantle the rights found in the Constitution by their recent predecessors. Rather than systematically appraising the evolution of any particular right or rights, however, Savage proceeds obliquely. Having covered the Supreme Court scene for the Los Angeles Times, he builds the book mainly around nomination battles, both the administration fights over who will be nominated and the Senate fights over whether to confirm, together with background about Justices appointed earlier and occasional discussion of cases.

The book is weakest in its efforts at legal analysis. My favorite is the contrast Savage draws between Justices Scalia and O'Connor: "He sought decisions that were intellectually consistent; she tried to be fair" (p. 204). The phrase suits Savage's apparent purpose of depicting Scalia as a heartless slicer of metaphysical abstractions, but the price paid - in injury to minimum rationality - is high. Can Savage really think that "fairness" and "consistency" naturally conflict(2) Isn't treating like cases alike a criterion of fairness?

Generally, Savage's viewpoint is that of the tendentious editorialist. Deriding Robert Bork's view that the First Amendment protects only political speech, he declares flatly that it would allow the White House "simply [to] order a ban on the publication of scientific papers that dispute the Administration's view" on global warming or the relation between electromagnetic fields and cancer (p. 144). The reach of Bork's theory is obviously a fair question, but if any Borkian phrase resolves these hypotheticals, Savage does not reveal it.(3)

Savage's whole theme, indeed, rests on a highly elastic treatment of the English language. "Under the edicts of the Rehnquist Court, the Bill of Rights is shrinking in significance" (p. 454). (Why "edicts"? The term is not traditional for judicial decisions, and I do not believe Savage uses it, or any similar term evoking a despot's arbitrary ukase, for any ruling of the Court that reflects Justice Brennan's jurisprudence.) One would expect this to be followed by examples of rights terminated or shrunk. Instead, we find cursory references to five cases in which an individual lost a claim against the government, without the slightest effort to suggest that these losses defeated rights established in either the language of the Constitution or prior cases. One case, Harmelin v. Michigan,(4) modestly supports Savage's thesis, as Justices Scalia and Rehnquist explicitly favored abandonment of proportionality analysis as a component of review under the Cruel and Unusual Punishment Clause;(5) but the swing opinion by Justice Kennedy can fairly be characterized as sorting out a mixed bag of prior decisions before coming down on the side of the less interventionist reading.

The other four cases seem completely unhelpful to Savage's theory of shrinking rights. Before Cruzan,(6) there was no constitutionally protected "right to die."(7) The Court's refusal to intervene on behalf of Nancy Cruzan could therefore not have shrunk such a right. Before McCleskey v. Kemp,(8) there was no right not to be subject to the death penalty solely because of evidence that there was discrimination in applying the death penalty to one's race, evidence in no way linked to the particular defendant's sentence. Nor was there, pre-Rust,(9) an established right entitling one who takes government funds for a project to use those funds to finance speech conflicting with the purposes of the project defined by the funding agency. And...