First Among Equals: The Supreme Court in American Life.

• Author: May, Randolph J.
• Position: Book Review

Kenneth W. Starr New York: Warner Books, 2002, 320 pp.

Much has changed since John Jay's tenure as the nation's first Chief Justice. Not only did the Supreme Court's sparse caseload provide ample time for Jay to conduct overseas diplomatic missions, including negotiating what became known as Jay's Treaty, but Jay had few qualms about resigning his position as Chief Justice to become Governor of New York. After serving two terms, Jay was nominated by President John Adams to once again serve as Chief Justice. This time he declined, citing poor health, but he also pointedly informed Adams: "I left the bench perfectly convinced that under a system so defective [the Court] would not obtain the Energy, Weight and Dignity which are essential to its affording due support to the national Gover[ment]; nor acquire the public Confidence and Respect, which as the last Resort of Justice of the nation, it should possess."

As a nation, we have traveled a long way from a time when such minimalist expectations regarding the Supreme Court's place in our constitutional firmament could not be readily gainsaid. Now we have no less an astute observer of the Supreme Court than Kenneth W. Starr asserting that, "ultimately, in our system of government, the Supreme Court is first among equals." Indeed, in his new book, First Among Equals: The Supreme Court in American Life, Start, the distinguished former independent counsel, solicitor general of the United States, and federal appeals court judge, argues that the modern Supreme Court is "the branch of government with the authoritative role in vital issues that deeply affect American life and politics."

Chief Justice Jay might be forgiven for portraying the Court's prospects somewhat dimly. After all, his view comported, at least superficially, with the conventional wisdom of the founding era. In the Federalist Papers, James Madison and Alexander Hamilton refer to the "celebrated" Montesquieu as "the oracle who is always consulted" on separation of powers matters. And consult him they did. For Montesquieu, more than any other Enlightenment political philosopher, articulated the familiar tripartite division of powers among the legislative, executive, and judicial branches that became, along with federalism, the structural hallmark of our constitutional system. But unlike Judge Starr, Montesquieu certainly did not consider the judicial branch to be "first among equals." Instead, in his Spirit of Laws he famously remarked that "Of the three powers above mentioned, the Judiciary is next to nothing."

Following Montesquieu, Hamilton proclaimed in Federalist No. 78 that, "the judiciary, from the nature of its functions, will always be the least dangerous [branch] to the...