I’d heard great things about this book, and so I read it with high expectations. It is indeed well-written, interesting, and, though it’s opinionated, it is generally fairly balanced (though not entirely so). I didn’t find much that was strikingly new there, but I’ve followed the Court quite closely; I expect that others will find a good deal of new material there, and I found some myself.
Still, I was in many instances disappointed by the book. I’m not sure whether I might have been in too nitpicky a mood, or perhaps had my expectations set too high. Still, there were more than a few instances in which I saw some pretty significant omissions or misdescriptions — sometimes in situations when the facts were seemingly being shoehorned into the theory that the book was at that point propounding. Let me give four examples.
1. On p. 301, the book is setting forth the theory that Justice O’Connor moved to the left in the early 2000s. The theory itself may well be sound, to some degree. But consider the following passages that seem to be framed as support for the theory:
For all of O’Connor’s fondness for Roberts, his appointment did not restrain [1] the move to the left that characterized her jurisprudence and [2] thus [3] the Court’s. Indeed, as Rehnquist and O’Connor prepared to leave, there was a quality of a Prague Spring in the Court’s decisions — [4] a last gasp of liberalism before a likely surge to the right. At the end of his tenure, [5] Rehnquist was never more beloved, but also never more irrelevant. [Bracketed numbers added. -EV]
Take, for example, the chief’s vaunted federalism revolution. [Some details that go into the federalism debate and mention the Raich medical marijuana possession case, and that don’t mention O’Connor, omitted. -EV]
In Gonzales v. Raich, six justices, including Kennedy and Scalia, said that Congress could indeed prohibit private, doctor-authorized pot farming….
The trouble is that Raich is a counterexample for three of the five assertions in the first paragraph, not an example. Raich might be seen as an example of “the Court’s [move to the left]” (assertion 3), if one treats the rejection of a judicially enforceable enumerated powers doctrine as a left position, and of Rehnquist’s “irrelevan[ce]” (assertion 5). But consider the other three assertions:
- O’Connor didn’t move to the left (assertion 1) in Raich: She took the “right-wing” restraints-on-government-power position in Raich (something the book never explicitly says).
- The Court’s move to the left in Raich did not stem (in a “thus” relationship, as assertion 2 posits) from O’Connor’s position — it moved in spite of O’Connor’s vote.
- Even setting aside the singularly inapt Prague Spring metaphor (Prague Spring was a brief moment of democracy, preceded by dictatorship and followed by foreign tanks), Raich is not an example of “a last gasp of liberalism before a likely surge to the right” (assertion 4): The six Justices in the Raich majority remain on the Court, so Rehnquist’s and O’Connor’s retirements would either not affect the Raich lineup or turn it into a 7-2 or 8-1 case (if Roberts and Alito are more like Scalia than like Thomas).
So the example undermines three of the five claims that it’s supposed to exemplify, and supports only the other two. Yet a casual reader who doesn’t know the Raich lineup (and doesn’t infer it from the ambiguous “six justices, including Kennedy and Scalia”) might well assume that the example does fully support the opening paragraph.
2. On p. 90, the book talks, with some admiration, about the strategy of Jay Sekulow, one of the leading lawyers of the Religious Right. Sekulow’s first Supreme Court case, the book says, was the Jews for Jesus’ challenge to a Los Angeles International Airport ban on all “First Amendment activities”:
The original theory of the case was straightforward. Proselytizing was a form of religious activity among Jews for Jesus followers. A blanket ban on the practice thus interfered with their First Amendment right to the “free exercise” of their religion. That was how these cases had customarily been argued. Religious expression was always defended under the Free Exercise Clause.
But Sekulow’s relative ignorance about the Constitution turned out to be his best weapon. Sure, cases involving religion were always argued under the Free Exercise Clause. But Sekulow came up with a different theory. The First Amendment, after the religion clauses, goes on to say that Congress shall make no law “abridging the freedom of speech.” (In a series of cases after World War II, the Court said that the First Amendment was binding against states and localities as well as Congress.) Sekulow thought the eviction of the Jews for Jesus minister was a speech case, not a religion case….
[Later on p. 94, following a discussion of Sekulow’s other free-speech-based victories for religious speech:] By the midnineties, the issue was settled. According to the standards of Supreme Court litigation, Sekulow had emerged out of nowhere to revolutionize an important rule of law. As a result of his efforts, it was clear that if a school, airport, or other public forum was going to open up its facilities to some individuals or groups, the authorities couldn’t exclude religious speakers from the list.
But of course religious speech cases had long been argued under the Free Speech Clause as well as under the Free Exercise Clause. The 1943 West Virginia Board of Education v. Barnette case — which the book discusses just three pages earlier — struck down a compulsory flag salute as a violation of Jehovah’s Witnesses’ free speech rights; the Witnesses had lost on a religious freedom theory just three years before, in another case the book cites. In fact, many of the leading free speech cases of the late 1930s and 1940s, such as Schneider v. New Jersey (which upheld the right to leaflet) involved “religious expression” “defended under the Free [Speech] Clause,” not the Free Exercise Clause. Some other leading cases of that era, such as Cantwell v. Connecticut, involved religious speakers who successfully sought protection both under the Free Speech Clause and the Free Exercise Clause.
What’s more, in 1981, just six years before the Jews for Jesus case reached the Supreme Court, the Court’s Widmar v. Vincent decision had upheld religious speech rights on public property — there, university classrooms rather than airports — based on the Free Speech Clause, on the theory that religious speech couldn’t be discriminated against in a publiuc forum. The same year, the U.S. Court of Appeals for the Fifth Circuit upheld (in Fernandes v. Limmer) the rights of speakers to leaflet in airports; the case was brought by a religious group (the Hare Krishnas), relying on the Free Speech Clause as well as on religious freedom. And the same year, 1981, the U.S. Court of Appeals for the Ninth Circuit (in Rosen v. Port of Portland) reached the same result, relying entirely on the Free Speech Clause, in a case involving the Jews for Jesus themselves. Sekulow became general legal counsel for the Jews for Jesus in 1986; in mid-1980, when the Rosen case was briefed, Sekulow had apparently just graduated from law school, and was on his way to a job as a lawyer for the IRS.
So it may well be true that Sekulow is, as the book suggests, a skilled and important legal strategist for the Religious Right. But his supposed great innovation — which changed the way “[r]eligious expression was always defended” — seems to have been no innovation at all.
3. On p. 194, the book says:
Even without outright opponents of the death penalty like Brennan, Marshall, and (eventually) Blackmun, the Court in the Bush years imposed new limits on executions. In 2002, the Court said judges alone, without the concurrence of jurors, could not impose death sentences; also that year, the justices ruled that the execution of the mentally retarded violated the Eighth Amendment’s ban on cruel and unusual punishments. These rulings all came over the vigorous dissents of Rehnquist, Scalia, and Thomas — sometimes joined by Kennedy or O’Connor, who was an especially strong supporter of the death penalty — but the shift on the Court as a whole was unmistakable.
But the 2002 decision holding that there’s a right to jury trial in death sentencing was joined by Justices Scalia and Thomas (Rehnquist and O’Connor were the lone dissenters).
4. On p. 309, the book describes the Solomon Amendment case, Rumsfeld v. FAIR, by saying
In short, Roberts said that he who pays the piper calls the tune. “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept,” he wrote….
Yet the Court actually refused to rest on the proposition that “he who pays the piper calls the tune,” and instead held that the government could mandate access to universities by military recruiters even if this was a flat mandate rather than a condition on federal assistance:
This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.
The “Congress is free” quote is from Grove City, and was quoted by Chief Justice Roberts only as part of his description of Grove City.
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So how big a deal is all this? Maybe not that much; maybe these errors and some others I found are about par for the course even for a well-written book. Still, they made me worry how accurate some of the other material was — material that I didn’t know as much about, and thus couldn’t fact-check myself.