Supreme Court and Constitutional Theory, 1953-1993 » (1st Edition)

Ronald Kahn greatly revises our understanding of Supreme Court decision making and its relation to constitutional theory in the eras of chief justices Earl Warren, Warren Burger, and William Rehnquist. In the process, he refutes the longstanding stereotypes of an activist Warren Court trying to legislate individual rights and of a visionless Burger Court hiding in its predecessor's shadows.

Kahn contends that the dominant view of the Supreme Court as just another political institution is incorrect. That view depicts an unprincipled court wavering before external politics and public opinion or bending to the political agendas of individual justices. Kahn counters that justices throughout the postwar epoch, while well aware of the political environment, have consistently relied upon legal precedent and constitutional principles—especially in cases relating to individual rights and popular sovereignty.

The Burger Court in particular, Kahn argues, had both a coherent vision and a highly complex understanding of malfunctions in the American polity and of fundamental rights in the Constitution. He cites as salient examples the Burger Court's controversial decision in Roe v. Wade and its decisions regarding gender equality, religious freedom, and the right to education of all children, even illegal aliens. He suggests that this same sensitivity, despite enormous popular and political pressures, has been demonstrated by the Rehnquist Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

Kahn effectively reveals how the Supreme Court is influenced by its ongoing dialogue with scholars, judges, journalists, and others who debate the connections between constitutional law and democratic government. His critique of works by such prominent theorists as Robert Dahl, Martin Shapiro, Vincent Blasi, Anthony Lewis, Archibald Cox, Alexander Bickel, Herbert Wechsler, John Hart Ely, and Laurence Tribe, among others, provides valuable insights into this exchange between the court and its "interpretive community." His chapter on the new civic republicans like Michael Perry, Mark Tushnet, and Sanford Levinson, is especially provocative in its analysis of a potentially more productive guide for jurisprudence in the 1990s.

Combining theoretical sophistication with a fundamental comprehension of our nation's political institutions, Kahn's study should help demystify for scholars and students alike the workings of the Court and its place in our democracy.

Samuel Krislov

Ronald Kahn has written a smallish but sprawling and vastly ambitious volume. A number of acute critics -- Walter Murphy, Ted Lowi, Rogers Smith, David O'Brien and Joel Grossman -- write warmly in praise of the book. I respect the scope and intent behind Professor Kahn's opus but reluctantly conclude the book is rather like the famous boiled egg served to a thoroughly charitable parson, "good in spots." The best spot is the opening chapter, a truly bravura introduction. Professor Kahn sets before the reader a genuinely revisionist agenda. Political scientists, he argues, have trivialized constitutional adjudication, reducing it to sheer politics and arbitrary preferences of judges. As a result of such faulty understanding both the Warren and Burger Courts have been "mischaracterized". A central truth -- that the Court is actively engaged in dialogue with the "interpretive community" has been missing from the prevailing analyses. In order to advance these interesting and far-reaching arguments, Kahn develops two sets of categories: a typology of legal principles served in litigation (polity principles, rights principles, structural inequalities, constitutive interpretation, instrumental interpretation) and an enemies list of writers who have helped foster error. Kahn also has many positive things to say, some about the erring authors. Both super-structural apparatuses seem to me faulty, so the weakest part of the book to my taste are chapter 2 and parts of chapter 3, which are the foundations of his analysis. At first blush his mania for categorization seems harmless. (There seem to be multiple levels of analysis; every type of argument has a label. New terms are continuously introduced; some are never defined, e.g. "lumpen rights theory", some are defined in footnotes printed in the back of the book.) At first they are merely distracting. But much more rides on them than it first appears. For example, to use a non-tenditious, non-crucial instance, Kahn takes very seriously Gerald Garvey's analysis of the sweep of constitutional history but discards it because of its failure to present "an integrated theory" of "polity clarification" since "rights (syntax) concepts of policy and rights should be viewed as intimately related to each other yet analytically distinct." (p. 25) Garvey also fails in not framing LOCHNER historically in its era. (I am not defending Garvey's CONSTITUTIONAL BRICOLAGE, a book I have always thought superfluous. It is merely that the highly conclusionary passages of condemnation seem more like a papal SYLLABUS OF ERRORS than a reasoned argument. And I don't know how to check on Kahn's claim that a book "fails" to present a "coherent theory" of "polity principles" "rights principles" or a "syntax" of their "intimate, but totally analytically separate," Page 121 follows: coexistence. Solipsism becomes more crucial when Kahn deals with Supreme Court doctrinal development. He has no difficulty in parsing opinions in crucial cases into his categories no hesitation in finding -- even in majority opinions, notoriously cobbled together -- a clear and discernable theory of a case. Then, the argument spread over two or three chapters goes, as far as I can tell, something like this: "In the crucial case of X, with respect to issue M, the conventional wisdom is wrong in characterizing the case as representing rights values. The Court sees it as representing "polity malfunction values". It rejects rights values. Since it rejects the rights values inherent in the previous precedential case it must get the new viewpoint from somewhere, which means a dialogue with the interpretive community." Kahn provides the encoding of the case into his terminology with respect to (a) the unspecified conventional wisdom, (b) the previous line of decision, (c) the case he is discussing, (d) any novelty in the line of cases. He is in something close to complete control because (a) his categories branch out and become filigreed as the book wears on, (b) there isn't a lot of bite in the definitions to begin with. His analyses of cases are usually interesting but less than conclusive. Furthermore, the evidence of "dialogue" drawn negatively from Court "rejection" is odd even if this classification game is accepted at face value. Professor Kahn thinks the Justices operate in a "non- Euclidean intellectual universe." This will come as a surprise to anyone familiar with the thinking of e.g., Burger and, to keep things in balance, Black. In the recent case on expert testimony Stevens and Rehnquist, presumed to be among the more highpowered of the Justices, expressed puzzlement at the "odd" notion that science rests on falsifiability of results. Kahn waxes indignant at "crude" notions of result-oriented analysis but his picture of a Court engaged in sophisticated seminars on morals, or even structure is naive, and some real evidence of interpretive interplay is called for. His argument-by-negation seems akin to the Sherlock Holmes strategy "eliminate the obvious and whatever remains, however improbable, must be the answer." But there are many explanations for new Court tacks: new Justices, new cases, new lawyers, new facts, all of which do not have to involve "dialogue with the interpretative community." If his mode of analysis is problematic, his list of erroneous approaches seems odd, both in who is in and who is out. The wrong roads are "the election returns approach", said to be held by Robert Dahl, the policymaking approach of Martin Shapiro, the "safety valve" theory which he attributes to Anthony Lewis and Archibald Cox and the biographical approach of G. Edward White. These are all "instrumental approaches" said to distort reality by ignoring principles and values. What is odd is his failure to attack the judicial voting behavior scholars especially Harold Spaeth, who would be directly on point and precisely confrontational. Instead he sidesteps that by (a) concentrating on those studies as "lessons" or evidence (b) citing Pritchett, Provine, and Sprague as supporting Page 122 follows: his interpretations (c) reinterpreting Spaeth and Teger to claim that they demonstrate that advocacy and restraint are real values in 25% of the "judicial cells" identified in their study (Kahn, p. 27) and (d) with respect to Spaeth and Rathjen suddenly turn around and argue that causal inferences are unwarranted, though much the same methods are involved throughout the chapter and Kahn himself employs similar techniques later on in the book. Bickel is treated oddly, too, as an "uncritical pluralist" who fails to see the structural inequalities of the system (p. 85). Kahn spends at least as much time on Alexander Kronman's article about Bickel as on Bickel's own prolific writings. He nowhere explains why an "uncritical pluralist" advocated black community independent power and except for one appreciative paragraph fails to acknowledge Bickel wrestled with value-choices in judging, generally not merely on the restraint side. What Kahn argues is that Sachs and Hart's, Wechsler's, Freund's and Bickel's concern with values was vitiated by their "uncritical pluralism" and their failure to recognize anything more than a common-sense judicial review. Dworkin appears in minor references the first time half-through the book. Fiss is mentioned twice, Fish not at all. "Safety valve" theorists are not seriously treated and are later subsumed under his respectful analysis of John Hart Ely. Kahn goes through the motions of arguing that White believes that "biography" is causative independent of principles and values of the Justices and criticizes him in parallel to the other two approaches (pp. 15-18, 62-65 and 88-89) but the notion is rather far-fetched and White fades away. It boils down to Dahl and Shapiro (and together with Shapiro, Blasi as editor and co-author in the THE BURGER COURT who are continuous targets. The critique of Dahl is misplaced. Kahn, like the rest of us, has no real knowledge of Dahl's theory of judging and there is an excellent chance he doesn't have one. His well-known article on the Supreme Court and its use of judicial review dealt with the problems of concern to him -- the role of popular will and minority protection, of Madisonian republican structures, and private rights. As Kahn suggests concern with a small sub-set of cases of unconstitutionality is a poor way to approach the broad question of how judges judge. Kahn acts as if this truism is a criticism of Dahl, but of course, Dahl must be aware of this and does not attempt to extend his findings beyond his own broad- enough quest. (As Kahn and the "critical elections" writers do suggest, Dahl may have truncated the data needed to answer his own questions and might, with profit, have also looked at constitutional invalidations of state laws.) Shapiro, therefore, emerges as the primary target, and by- and-large a legitimate one. Kahn weaves together a precis of a number of Shapiro's pieces on recent Court history, a precis that is both interesting and coherent. It would not have been remiss if Kahn had noted Shapiro was making DESCRIPTIVE statements, which Kahn chooses to project as THEORETICAL ones. But on the whole it is a genuine dispute not a contrived one. Page 123 follows: Kahn views the Warren Court as less concerned with rights values than institutional construction. He has a "two-Warren Court concept," an early period in which it accepted then-current pluralist thought and later when "it rejected the apologetic pluralism of its age, as represented in the scholarship of Robert Dahl and David Truman, and placed in its jurisprudence a critical pluralist interpretation of politics, as later represented in the scholarship of Grant McConnell and Theodore Lowi." (p. 251) The Burger Court did not aim at counter-revolution and reflected both internal splits and deeper concerns with critical pluralism of the interpretive community. It did not seek to end the growth of equality and fundamental rights in RODRIGUEZ and its discussions there and elsewhere reflect the more complex issues dealt with in the later era. To my taste, there are some valid points here. As the development of women's rights in the Burger era indicates, the Warren Court concentrated on obvious discrimination, easily in violation of the Fourteenth Amendment, and the Burger Court was not hostile to advancing some of the same dominant impulses of the society. The dilemmas of establishment versus free exercise, and equal treatment versus equal opportunity have been more cruelly manifested in recent decades than during the Warren years. It is hard to imagine the Warren Court invalidating state laws on homosexuality as the Burger Court almost did. It was change outside the Court that was crucial there. But the flow of legal decisions has overtaken both Blasi's and Kahn's analysis, and belied Blasi's predictions but devastates Kahn's rationalizations. The "counter-revolution" that failed, has risen from its "failures" and has scored significant victories in the field of criminal law and property rights and also seems on the verge of a reversal in establishment doctrine. This raises a number of issues. In general, Kahn does not exhibit much of an instinct for the "big picture". He challenges the notion that RODRIGUEZ was a watershed, pointing out that education was subsequently accorded more positive constitutional protection in many cases culminating in PLYER V. DOE the undocumented children's case. But in fact PACE PROFESSOR KAHN that era, not any single case, marked a watershed, ending the minting of new "fundamental rights". Furthermore, it was not characterized so much by "intermediate scrutiny" reflecting complexity as he suggests. Rather the Court lost confidence in its whole apparatus, (the "scrutonometer" as Lawrence Friedman labels it, a "body of law more elaborate than the corpus of modern physics" as Gunther describes it). Kahn does not seem to know that in law as in nature a tap root can grow while the core of the tree dies. Witness "state action" theory for example. The fact is that for years now the Court has basically ignored its own equal protection doctrine, making pragmatic decisions, and leaving outsiders to try to make some sense of them. If there has been "dialogue", it is negative, a grudging acceptance of Gunther's critique, but not Page 124 follows: My final concern is with the almost arbitrary nature of much in the book. How can one compare the Warren and Burger Courts without discussing criminal procedure decisions? Does that not tip the balance against "rights principles"? How can an author not explain to a reader the basic rationale for inclusion or exclusion of topics? Doesn't a book on constitutional theory owe us a theory of what is being undertaken? The volume ends with an interesting treatment of writers Kahn labels civic republican theorists: Tushnet, Levinson, and Perry. On the whole the treatment of those who in fact infuse their work with normative aspects get more sympathetic treatment and more illuminating exposition. REFERENCES Blasi, Vincent. 1983. THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN'T. New Haven: Yale University Press. Garvey, Gerald. 1971. CONSTITUTIONAL BRICOLAGE. Princeton: Princeton University Press. PLYER V. DOE 457 U.S. 202 (1982) SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ 401 U.S. 1 (1973)