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The majority's rules

Courting Disaster; The Supreme Court and the Unmaking of American Law, Martin Garbus, Times Books: 336 pp., $25 Overruling Democracy: The Supreme Court vs. the American People, Jamin B. Raskin, Routledge: 290 pp., $27.50 Law, Pragmatism, and Democracy, Richard A. Posner, Harvard University Press: 398 pp., $35

May 25, 2003|Alexander Keyssar | Alexander Keyssar is Stirling professor of history and social policy at Harvard and the author of "The Right to Vote: The Contested History of Democracy in the United States."

History has moved forward in a rush since the disputed election of November 2000, leaving our memories of that peculiar event overshadowed by images of terrorism and war. Indeed, the significance of the election for domestic politics (in contrast to foreign affairs) now seems diminished to a level inconceivable two years ago. The legitimacy of George W. Bush's reign as president has rarely been questioned; the election reform laws passed by Congress were so slight as to barely merit notice; the electoral college is still with us.

Yet that election did spark, or invigorate, a wave of debate among scholars and lawyers about the nature of American democracy and about the conservative Supreme Court that ushered Bush into the White House with its decision in Bush vs. Gore. Books and articles have poured off the presses on both subjects (the two are often linked), and they continue to do so. The debates are often lively, sometimes bitter, and occasionally couched in language accessible to civilians.

Legal scholars of a liberal persuasion are deeply disturbed, and sometimes downright apoplectic, about the high court. Mirroring the partisan shifts that have occurred in Congress and the White House, the court, led by Chief Justice William H. Rehnquist, is now dominated by conservative Republicans; and liberals fear that Rehnquist and his allies are rolling back many principles established between 1935 and 1975, when the court aggressively defended individual liberties, promoted democratization and civil rights, and sanctioned federal regulation of economic affairs.

Martin Garbus, a well-known trial attorney and 1st Amendment expert, is one of those who are worried. To Garbus, the Rehnquist court has become a dangerously activist institution, intent on pursuing an ultra-conservative agenda and willing to ride roughshod over precedents in place for decades. In "Courting Disaster," he accuses the court of "seizing power" from elected legislators, overturning "the last sixty-five years of America's constitutional law" and protecting "entrenched interests at the expense of unpopular minorities." Despite the traditional conservative embrace of "judicial restraint," Garbus sees little that is restrained about this court, which has overruled both federal and state laws at unprecedented rates -- effectively substituting its views and values for those of the people's elected representatives.

"Courting Disaster" is a sprawling indictment that details case after case in which the court, often by a 5-4 majority, has diminished the rights of minorities and accused criminals, weakened the separation of church and state, and undercut the ability of the federal government to regulate business in the public interest. The book contains brief biographies of the justices, as well as some key appeals court judges who might one day join the Supremes; it also chronicles the highly organized efforts of the political right, beginning in the 1980s, to implant its own loyalists in the federal judiciary. All of which is quite laudable, particularly in a book aimed at a general, rather than scholarly, audience: The politics of an arcane-sounding decision can come alive if one knows a bit about the judges and how they got to the bench (which -- surprise -- was usually by courting politicians).

Yet "Courting Disaster" is so flaccidly written that readers will have to work hard to come away with a clear picture of what has occurred and why. The book, moreover, veers erratically between criticisms of decisions that the court has already handed down and warnings about what the court might do in the future -- particularly if President Bush has the opportunity to appoint more justices like his activist favorites, Antonin Scalia and Clarence Thomas. Such warnings may well be on target, but this jeremiad is too muddled to awaken the people to the dangers that might await them.

Jamin B. Raskin's "Overruling Democracy: The Supreme Court vs. the American People" is a far more focused, successful book. Raskin, a law professor in Washington, D.C., with particular expertise in voting rights law, sees the conservative majority of the current court not simply as activist but as anti-democratic: The "underlying philosophy of the Rehnquist Court" is "hostility to popular democracy, especially when it involves empowerment of racial and political minorities." An unabashed proponent of "participatory self-government," Raskin maintains that "the urgent project of our time is to free popular democratic politics from the stranglehold of the Court."

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