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Mark Tushnet is a prominent legal scholar and writer who has published numerous books on the judicial system. He previously clerked for Supreme Court Justice Thurgood Marshall and currently teaches at Harvard Law School.
The Supreme Court is perhaps the most mysterious and least well known of the three branches of government. With the exception of a media frenzy over the occasional polarizing case, the Supreme Court manifests far less in the popular conscience than the executive and legislative. Perhaps this is because the nine justices speak infrequently in public, and the Court’s main channel of communication is through technical and lengthy legal documents that frequently run 187 pages.1 However, to equate their public popularity with their importance would be wrong; the Court wields immense influence over the direction of the country. One of the most important roles of the President is to appoint Supreme Court justices, who serve life terms. With nine members, even a change in one conservative or liberal justice could alter whole rulings and fundamentally change the landscape of the country. Mark Tushnet seeks to orient the Court’s role in the government in In the Balance: Law and Politics on the Roberts Court.
Wasting no time on extended exposition, the book’s first chapter covers the Robert’s court’s ruling on the Affordable Care Act. Tushnet then describes the processes and mechanics through which the Court operates, such as how the Chief Justice assigns the majority opinion if he concurs, or how the Senior Justice is given the power to assign if the Chief Justice dissents, or how a summary of the Court’s final opinion is given in a six page document called the “Syllabus.”2 Tushnet explores the fundamental questions that define the cases of the court, such as whether the Affordable Care Act constituted a tax. These questions are covered extensively throughout the chapters and introduction, including the “broccoli question” posed by Randy Barnett, who Tushnet cites as one of the strongest rhetoricians in law. The question explored whether the Government had a right to force people to buy broccoli the same way it could force them to purchase healthcare. The influence of the question is underscored by the fact that Scalia raised the question during the case. Tushnet proceeds to describe the failing health of William Rehnquist and the retirement of conservative Justice Sandra Day O’Connor to care for her husband’s sickness, followed by the nomination of John Roberts and Samuel Alito by George W. Bush. Both justices had worked originally under the Reagan administration. The background of both is inspected, and the role of the Federalist Society’s network of conservative connections in the nominations is noted. The nominations set the stage for the Roberts court and the meat of Tushnet’s book.
The second portion of the book follows the Obama-era Court appointees. Obama’s first nominee was Sonia Sotomayor to replace the retiring David Souter. Sotomayor was the first Latina nominee for Supreme Court Justice, and the third woman to ever be appointed to the Court. His second nominee was Harvard Professor Elena Kagan to replace John Paul Stevens, who was nominated by Gerald Ford in 1975. Tushnet analyzes the confirmation hearing voting results, pointing out how both Bush and Obama faced increasing amounts of opposition to their candidates, “as politics around the Supreme Court changed, so did the norms about the reasons senators could openly use in opposing a nominee.”3 Tushnet also cites Kagan and other scholars, who “have criticized confirmation hearings as failing to inform senators about the nominees’ views, or the public about what it means to interpret the Constitution. Instead of discussing the Constitution, senators inflate minor ethical questions into major issues.”4 The polarization of the court, and its decisions he sees as incredibly political, like Bush v. Gore, is noted, with Tushnet explaining that he believes the two wings of the court have moved farther from each other, with the center remaining the most important part of the Court. More specifically, Tushnet explores the impact of Scalia’s sharp writing and pointed comments on the Supreme Court and on the press. Tushnet analyzes the budding intellectual rivalry between Roberts and Kagan, which Tushnet predicts is an issue and a rivalry that will define the Court to come. Kagan’s liberal background is inspected, including her beginnings in the executive branch under Bill Clinton.
The third portion of the book concerns gun laws and business cases. Tushnet comes to the conclusion that the Roberts court can best be defined as a “pro-business” court.5 Tushnet cites the Solid Waste Agency of Northern Cook County v. Army Corps of Engineers case regarding the Clean Water Act, and what constituted “navigable waters.”6 Tushnet also explores the battle between conservatism and liberalism, observing that “many consumer advocates believe that arbitration is skewed in favor of businesses like AT&T.”7 Tushnet also notes the partisanship of the present day, stating “But if writing an effective constitutional amendment is hard, getting it adopted is almost impossible.”8 Tushnet then proceeds to analyze the tenets of conservative and originalist viewpoints regarding gun control, one of the most important issues facing the Supreme Court in today’s political landscape. When describing the liberal point of view, Tushnet states “Liberals focus on the preamble. For them, it limits the operative clause: people have a right to keep and bear arms only in connection with their membership in a state-organized militia.”9 Tushnet then summarizes the conservative viewpoint that “people had a constitutional right to speak freely, and the Second Amendment was just the same.”10 This interplay between different interpretations was the impetus for the conflict over gun laws that would grow into one of the dominant issues the Court has had to face in the last ten years, an issue integral to Presidential elections.
The fourth portion of the book examines some of the decisions the Court made. The Court, despite being majority conservative, often ruled liberally in social issues. An example is the legalization of gay marriage in Obergefell v. Hodges. Also, a Justice’s ruling did not always correspond with their political background. For example, Tushnet provides the concrete example of Snyder v. Phelps, in which the conservative Samuel Alito dissented that Phelps’s First Amendment rights did not cover his hateful speech. Additionally, the author analyzes a pattern in the Court’s First Amendment rulings, namely, strong First Amendment protections, ruling in favor of campaign spending—an issue of free speech—in Citizens United and in favor of the Westboro Baptist Church in Snyder v. Phelps. Tushnet also covers United States v. Alvarez, which struck down the Stolen Valor Act, where false claims about military service could be criminalized, stating that “criminalizing certain types of speech is not the answer.”11 On the death penalty, Tushnet highlights the difference between conservative viewpoint and the liberal viewpoint. However, Tushnet notes that “The fractures on the Court resulted from largely ideological divisions among the Justices.”12
The thesis presented in the book is that the Supreme Court is the battleground upon which conservatism and liberalism struggle with each other for influence. He rejects the idea that the political party of an appointee can predict their rulings, but instead posits that the constitutional philosophy, the nature of the case itself, and judicial precedent are far better predictors of what the Court will rule. Tushnet presents the example of Astrue v. Capato where the court ruled unanimously regarding details of the Social Security Act, a case which Tushnet describes as a “straightforward problem in statutory interpretation and administrative law.”13 Normally, claims Tushnet, this would have been another partisan battle site, but agreed upon precedent was the clear and unequivocal deciding factor. The Constitution informs decisions of the Court, so it is only on the most contentious and open issues that there is significant disagreement in the Court. The differences are in interpretation. This explains how most of the most partisan and contentious issues end up in 5-4 decisions, with Kennedy as the swing vote most of the time. However, to argue that the Court is mechanical—algorithmically predictable—is false.
Tushnet’s perspective is informed by extensive experience in law. Tushnet graduated from Harvard College and then with a history degree followed by a juris doctor from Yale. Tushnet clerked for Thurgood Marshall, a prominent liberal Supreme Court justice which would have influenced him in that direction. Marshall had been appointed by Lyndon Johnson in 1967 and was the first African-American Justice to sit on the Supreme Court. Tushnet has also published articles in the Harvard Law Review and Politico. Tushnet has served as faculty at Georgetown School of Law, the University of Wisconsin-Madison, and is the William Nelson Cromwell Professor of Law at Harvard University. He is a prominent figure in constitutional law and has written many casebooks, reviews, and studies focusing on Constitutional law and legal history. One of his works, Taking the Constitution Away From the Courts, advocated the idea of a “thin constitution” where the main ideals of the document are located in the preamble.14 This suggests he is skeptical of judicial review, and it can be inferred that he is ideologically opposed to textualism. In turn, one must consider this bias to their reading of Tushnet’s works.
The publication date of 2013 suggests Tushnet was influenced by several very important events in the last 10 years. First, the book was published immediately after the 2012 Presidential Election in which incumbent Barack Obama was reelected President. Secondly, the Affordable Care Act in mid-2012 greatly influenced the book, as it revealed the greater struggle between liberalism and conservatism, big-government and small-government, the loose construction and the strict construction. Tushnet wrote the book in a time period at which hope for bipartisan action was small, and tensions between the legislative branch and executive branch were high. This could explain Tushnet’s detailed focus on the differences between party viewpoints and ideological divides as to reading of the Constitution. After all, publishing the year after an election meant that viewpoints on controversial issues like Roe v. Wade were fresh in the public and intellectual conscience.
In his review David Cole opines that In the Balance: Law and Politics on the Robert Court is “an engaging and accessible history of the Court’s major decisions.”15 Cole concurs with Tushnet’s assertion that the fallout from a decision is always unpredictable. Even an unfavorable decision can lend “wind” to a political party. Additionally, it is often impossible to account for personal factors and subtle nuances in a judge’s constitutional philosophy that cannot be gleaned from previous opinions. Cole also highlights the numerous social liberal cases the court has ruled in favor of, including gay rights and “prisoners to be free of overcrowding.”16 However, Cole also highlights the conservative decisions, including gun laws and campaign finance laws, exemplified by the ruling in Citizens United. Cole emphasizes the role of Justice Anthony Kennedy, appointed by Ronald Reagan in 1987, stating that “the center defines the Court, not the chief justice.”17 This means that conservatives on the Supreme Court, no matter how conservative, or liberals, no matter how liberal, need to appeal to Kennedy to get their decision through. Thus, in Cole’s eyes, it is not Robert’s who is the crux upon which the court operates, but Kennedy, with both sides needing a vote from him. Meanwhile, Terri Peretti’s review in the Law and Politics Book Review is more negative, with Peretti critiquing that “instead of effectively elaborating on the themes introduced in the preface, much of the book consists of disconnected, unremarkable, and often poorly-written descriptions of leading cases decided by the Roberts Court.”18 Peretti also observes the book to be a bit careless in editing, noting an error of how the Nebraska statute is suddenly referred to as the Kansas statute later on.
Tushnet’s book offers an interesting perspective on the Supreme Court’s role in modern government. Readers will appreciate Tushnet’s deep scholarship and knowledge about the subject he chose to write about in the book. His backgrounds on the ascendancy of Alito and Roberts, and then later Sotomayor and Kagan, to the Supreme Court form a fascinating history. The perspective on the relationships between Justices and the inner workings of the court offer an interesting viewpoint hard to find elsewhere. In addition, Tushnet’s discussion of Robert’s “balls and strikes” metaphor offers an interesting dialogue on what the proper role of a Justice is.19 Following this, the book offers an in-depth analysis of varying viewpoints on the role of a Justice, forming a valuable exposition as to the differences between liberalism and conservatism and how this informs their viewpoints of the roles of the Court and government in the lives of its citizens. Tushnet’s following foray into the differences between originalism or textualism and a more liberal, loose interpretation of the Justice as a pragmatist provides another interesting read on the dynamics of the Court. However, readers would benefit, perhaps, from a more structured approach to the chapter by chapter organization of the book, as sometimes the book meanders from topic to topic, and overarching themes can be hard to notice, especially considering the technical nature of the subject and the often impenetrable nature of the legal argument. More examples of recent cases from the last ten years and more analysis on the decisions would give the book a more detailed and comprehensive account.
The content of the book is a reflection of the growing partisanship between conservatism and liberalism, Republican and Democrat. The changing nature of American politics manifests itself in the Court cases. Also, the changing perspective on social issues in the United States manifests itself in the decisions of the Court. For example, the debate over Roe v. Wade and the importance of a Justice’s confirmation and his perspective on the case, reflect the competition between conservative and liberal for influence. The impact of technology is less clear. The conflict between surveillance and Fourth Amendment rights constitute the main issue of technology the Court has had to grapple with so far. For example, in United States v. Jones, the Court ruled that attaching a GPS to a car constituted a search or seizure.20 However, the 5-4 voting margin suggests that issues like this are not going to go away and are far from being settled fully. Even a nuanced difference in philosophy or in a judge’s reading can have massive consequences on his decision and for that reason these contentious cases are important barometers as to where the Court is ideologically.
In conclusion, Tushnet’s book is an approachable introduction to the topic. He writes well and he is very knowledgeable about the topic. Tushnet’s book is an interesting read for anyone looking to learn more about the interplay between ideological forces in the modern Supreme Court. Tushnet leaves readers with the analysis that “the Court will remain balanced between politics and law, between being a Roberts Court and being a Kagan Court, until new appointees join the Court’s family and reshape its dynamics.”21 How exactly they will affect the Court is not stated, as Tushnet adopts an agnostic stance as to the predictability of the Supreme Court.
[1]Tushnet, Mark. In the Balance: Law and Politics on the Roberts Court. Norton and Company. 2013. 16.
[2]Tushnet, Mark. 2013. 16 .
[3]ushnet, Mark. 72.
[4]Tushnet, Mark. 70.
[5]Tushnet, Mark. 213.
[6]Tushnet, Mark. 118.
[7]Tushnet, Mark. 2013.
[8]Tushnet, Mark. 227
[9]Tushnet, Mark. 153.
[10]Tushnet, Mark. 151.
[11]Tushnet, Mark. 116.
[12]Tushnet, Mark. XIV.
[13]Tushnet, Mark. Taking the Constitution Away From The Courts. 2000
[14]Cole, David. The Anti-Court Court. New York Review of Books. 2014
[15]Cole, David. The Anti-Court Court. New York Review of Books. 2014
[16]Cole, David. The Anti-Court Court. New York Review of Books. 2014
[17]Tushnet, Mark. 71.
[18]Peretti, Terri. Law and Politics Book Review. 2014.
[19]Tushnet, Mark. 40.
[20]US Courts Government. What does the Fourth Amendment Mean? United States Courts
[21]Tushnet, Mark. 288.