SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Thursday, February 26, 2004

FULL REVIEW OF FIRST AMONG EQUALS: The aforementioned SU Review published an (understandably) abridged version of my review of Judge Kenneth W. Starr's "First Among Equals." I will provide the (full) version I submitted below.


By Seth Cooper

To write a one-volume summary about the US Supreme Court and its major lines of jurisprudence over the last fifty years is no easy task. Yet, Judge Kenneth Starr is more than up to the task in “First Among Equals,” recently released in paperback.

Contrary to all the venomous nonsense you may have heard from James Carville & Co. during the Clinton Impeachment crisis, Starr is a brilliant legal mind and has had a stellar career in the law. A former Chief Justice Warren Burger, Starr has had a successful private practice, served as a judge on the U.S. Court of Appeals for the D.C. Circuit, and also served as Solicitor General, arguing cases before the U.S. Supreme Court.

He brings his insight and experience into this book, writing a short introduction to some of the early landmark cases in U.S. Supreme Court during the tenure of the Great Chief Justice John Marshall, followed by short biographical sketches of the Court’s current roster. Starr then provides sharp and succinct analysis of constitutional case law concerning a variety of issues, such as affirmative action, the rights of criminal defendants, the powers of the President, and federalism. The concluding chapter is devoted entirely to Bush v. Gore (2000).

Much of Starr’s analysis describes the cases and views of the justices in light of the two competing judicial philosophies adhered to the respective members of the court: textualism and common-law constitutionalism. As Starr notes, Justice Antonin Scalia has been a champion of textualism, an approach to statutory and constitutional interpretation that requires a jurist to discern the meaning of the text, according to its structure, history, logic and original understanding. Textualism is often wrongly confused with “strict constructionism” or an attempt to discover what law was “intended” to mean in the minds of those who made the law, rather than the search for the meaning of the words actually adopted.

This judicial philosophy stands in contrast to that of common-law constitutionalism, in which constitutional law is created through judicial decision-making by judges in individual cases, with the constitution’s text and its original understanding holding a less prominent position. This judicial philosophy is all but synonymous with the “living Constitution” concept, which holds that our “understanding” of the Constitution’s meaning “evolves” over time as our society continues to “evolve.” The values that underlie Constitution are to be expounded by the judges based upon the ideals of the contemporary age.

Starr spends a great deal of time in the First Amendment realm. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.) There is obviously much room to work with here, and Starr ably describes recent developments in the areas of free speech and religious establishment jurisprudence.

One important development is the increasing role of “viewpoint neutrality” in the context of religious speech. This simply means that speech involving religious perspectives is to be treated on an equal footing with secular viewpoints. The seminal case in this regard remains Rosenberger v. Rector (1995), where the court held that a student newspaper with a Christian message couldn’t be denied support from student fees collected for student groups and group publications when secular groups were given such support. As Starr points out, “[o]nce government establishes a ‘forum,’ a place where speech and assembly can take place, then it may not discriminate against certain views or perspectives.”

Since the initial publication of Starr’s book, the Court continued this approach in Zelman vs. Simmons-Harris (2002) in upholding a school voucher program that would allow state funds to be used to pay for students in failing in public schools to go to private or parochial schools instead. Critics claim this violates the separation of church and state, but the Court held that so long as such funds were disturbed for the purpose of education available for students to attend secular private schools that they could likewise be available for students to attend religious private schools, irregardless of the religious viewpoints at the latter institutions.

Of course, this free speech line of cases is marginally at odds with the Court’s modern Establishment Clause jurisprudence, which began with Everson v. Board of Education (1947). It was there that the Court held that the First Amendment’s Establishment Clause applied to the states as well as the federal government, that the Amendment erected a “wall of separation” between church and state, and that both are to be entirely neutral towards religion and irreligion. On its face, this may seem entirely acceptable and consistent with the recent developments in “viewpoint discrimination” cases, but a number of cases decided in Everson’s wake tell another story, in which those with religious viewpoints have been subjected to much discrimination, with providing an approving nod.

According to Starr, “Everson effectively denied the idea that religion has public value in a democracy.” In the wake of Everson, Christmas nativity scenes would disappear from public property, voluntary prayers would be eliminated from school classrooms, and other religious expressions by adults and children that might happen to give the appearance of government approval would be stopped by the Court.

Starr hoped that the Court would reverse itself in this area, when as Solicitor General he argued the case of Lee v. Weisman (1992). The Court did not see things his way, holding that a nonsectarian, consensual prayer offered at a high school graduation ceremony violated the separation of church and state. According to the Court, the offering of such a prayer was coercive and discriminatory against those who held different beliefs.

Indeed, the Court has showed no signs of slowing down in this regard, as in Santa Fe Independent School District v. Doe (2000), it was held unconstitutional for student-led and student initiated prayers before a high-school football tame. In a biting dissent, Chief Justice William Rehnquist opined that “the majority opinion bristles with hostility to all things religious in public life.”

In another line of cases, the Court has also recognized, in many instances, a freedom from coerced support of speech with which the individual disagrees. In Abood v. City of Detroit (1977), the Court upheld the right of a teacher to avoid paying fees to a union to the extent that the fees subsidized the union’s political activities. The Court similarly held in Keller v. California (1990) that a state bar association could require lawyers to pay annual fees, “but it could not use the money to finance anything other than its efforts to regulate, discipline, and control the bar and seek improvements in the administration of justice.”

Of course, the Court’s recent approach to the subject of political campaign contribution and spending limits are rather difficult to square with the Abood and Keller decisions. Starr served as Chief Justice Warren Burger’s clerk when the Court decided Buckley v. Valeo (1976). In that case, the Court dealt with a campaign finance reform bill passed by Congress that regulated the amount of money that could be contributed to and spent by political campaigns. The Court upheld contribution limits, per candidate, per election cycle, as well as public financing of campaigns, but it struck down provisions limiting how much money campaigns could expend. How are limits on contributions legal while limits on expenditures illegal? As Starr poignantly asks: “Isn’t an expenditure the flip side of a contribution? Shouldn’t they rise and fall together?” The Court upheld a similar state statute in Nixon v. Shrink Missouri PAC (2000), with the majority asserting a policy judgment that such laws protect the integrity of the process. Justices Clarence Thomas and Scalia, however, were of the view that such contributions and expenditures involved political speech, which lies at the very core of the First Amendment. Starr does not hide his disdain for campaign finance laws, and happened to be involved in a recent case before the Supreme Court on the so-called McCain-Feingold campaign finance law that was decided since his book went to press.

Starr’s book provides a solid and easy-to-read primer on the Supreme Court and some important decisions for the last half-century. Yet, as enjoyable as his book may be, I would much prefer to read his work in the form of a judicial opinion. For while reading it I could not help but think that had Starr not been appointed as Independent Counsel to investigate President Clinton, that he just might be sitting on the High Court today.


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