by Jan Crawford Greenburg. New York: Penguin Press, 2007. 368pp. Cloth. $27.95. ISBN: 9781594201011.
Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh. E-Mail: cwb7 [at] pitt.edu.
In this impressive book, Jan Crawford Greenburg relies on interviews with administration officials, the papers of Justices and Presidents, and even interviews with the Justices themselves to give readers an inside look at the Supreme Court. Starting with the appointment of Sandra Day O’Connor, and ending with the confirmation of Samuel Alito, Greenburg discusses the politics behind the appointment and confirmation of all of the current Justices as well as the impact these Justices have had on the Court. Perhaps not surprisingly, Justices Sandra Day O’Connor and Anthony Kennedy play central roles in the book (much as they did on the Court during this time). In many ways, this reminds me of THE BRETHREN (Woodward and Armstrong 1979), but with more of a focus on the justices than on the key cases decided (though there is some discussion of cases). The book is both well-written and well-organized. In addition to learning much from the book, it is also easy to read.
Some of the information in the book will be familiar to scholars of the Court – for example, the fact that Chief Justice William Rehnquist was a good leader of the institution, rarely pressuring Justices who disagreed with him. Greenburg writes (p.17), “Rehnquist . . . was a well-liked leader, and the justices had developed a warm and easy rapport over the years.” This is in contrast to the man he replaced, Warren Burger, whose leadership style was criticized by both liberal and conservative justices alike (Woodward and Armstrong 1979; Greenhouse 2005). Interestingly, later in the book (p.315) Greenburg describes Chief Justice John Roberts as more collegial and savvy than Rehnquist, something that is curious given the high marks generally given Rehnquist on both accounts. (Greenburg offers no evidence to support this claim.) Another example is the way the Bush White House completely blundered the nomination of Harriet Miers. Given all of the opposition to Miers, both internally and from key supporters, one is left with a feeling of amazement that the Administration thought that she would be confirmed by the Senate.
Like all good books, in addition to discussing and confirming things we already knew, Greenburg goes on to discuss some things that I found both new and surprising. I, for one, did not know that Clarence Thomas was considered for the vacancy eventually filled by David Souter (p.94). Thomas was ruled out because it was “too soon” for him (though the next year he was appointed). Also, it is interesting how Roberts is described as the “anti-O’Connor” (p.230). In fact, Greenburg [*500] says, Roberts “had little patience for her approach to the law, which he saw as undisciplined, almost to the point that it bordered on irresponsible.” This is quite a harsh assessment. Greenburg does not footnote her source for this claim, so it is difficult to assess its accuracy. This biting critique of O’Connor seems more consistent with Antonin Scalia than Roberts. Finally, it is interesting how openly Kennedy desired to be elevated to Chief Justice (p.240), despite the fact Kennedy had fierce opposition by conservatives inside the Reagan Administration when he was appointed (p.53), was perceived as pompous by some other Justices (p.112), and was widely perceived to disappoint conservatives on cases they cared about most (pp.162, 312). One gets the sense that Kennedy is unaware of how he is perceived by other justices and conservatives. In fact, as early as 1992, Scalia concluded Kennedy was a “lost cause” (p.157).
Despite the considerable strengths of the book, there are some things I wish had been developed better. First, I think Greenburg needs to provide better evidence for some of her claims that contradict previous accounts or scholarly studies. On p.171, she writes, “[Harry] Blackmun hadn’t been a particularly likable colleague.” This seems to contrast with the portrayal of Blackmun in both THE BRETHREN (Woodward and Armstrong 1979) and BECOMING JUSTICE BLACKMUN (Greenhouse 2005). While Blackmun could be finicky sometimes, he was never accused of being a bad colleague. Greenburg needs to say more here, especially since it seems contradictory to other accounts. Another example is when she writes that BUSH v. GORE was “a case that would shake the political world and deeply damage the Supreme Court’s reputation for years to come” (p.174). Yet, there is no evidence that the Supreme Court’s reputation was damaged by the case (e.g., Kritzer 2001; Gibson, Caldeira, and Spence 2005).
Second, there are several points at which I found myself asking why something occurred. The best instance of this is O’Connor’s drift to the left while she was on the Court. Greenburg writes (p.122), “When the balance of the Court began to shift to the right, O’Connor’s line of compromise changed. With Thomas on the bench, she was not reacting to the liberals. She was pulling away from the conservatives.” Greenburg suggests the reason for this is because of Thomas; he somehow pushed her away (pp.115-116, 122, 123). This is a plausible explanation for why she refused to join his opinions (p.123), but it does not explain why she would support a different outcome in the case. Why would O’Connor move to the left and start siding with the liberals simply because she found Thomas (and Scalia) rude and perhaps a bit disingenuous (even incompetent?) (p.83, 136)? Are we really to believe O’Connor voted conservatively because Brennan pushed her that way (p.82) and then voted liberally because Scalia and Thomas pushed her that way? This explanation is not sufficient and seems to contradict the voluminous political science literature on Supreme Court decisionmaking (e.g., Segal and Spaeth 2002). A more likely explanation has to do with her evolving sense of what the [*501] Constitution does (and does not) permit, as well as the Court’s changing agenda.
More troubling is the fact that Greenburg’s conclusion that the Court is finally going to shift to the right seems a bit premature and overly optimistic. After all, after the appointment of O’Connor, Kennedy, Scalia, Souter, and Thomas, people thought the Court was going to swing to the right. And, there was evidence this was occurring: in addition to the consistently conservative decisions of Scalia and Thomas, O’Connor voted with Rehnquist as often as Thurgood Marshall did with William Brennan during her first three terms (p.68), Kennedy “emerged as one of the most conservative of the justices” (p.73), and Souter was solidly conservative early on as well (p.109). So, if all these justices drifted to the left, how can we be sure the same will not happen with Roberts and/or Alito? To be sure, their records are both more solidly conservative before reaching the Court than O’Connor, Kennedy, and Souter. But, there are no guarantees. Also, if Scalia and Thomas pushed O’Connor to the left, how can we be sure they will not push Kennedy even further to the left, thereby, stymieing the conservatives once again. It is for these reasons that her conclusion (p.315) that “George W. Bush and his team of lawyers will be shaping the direction of American law and culture long after many of them are dead” seems a bit premature. This may well be true, but we have heard this before.
In sum, SUPREME CONFLICT is sure to be a book of interest to scholars of the Court, regardless of the approach they take in their research. While there are some shortcomings, on balance it is interesting and insightful. It is certainly appropriate for use in undergraduate classes on the Supreme Court as students are likely to find the behind-the-scenes account of the Court and its Justices compelling.
Gibson, James L., Gregory A. Caldeira, and Lester Kenyatta Spence. 2003. “The Supreme Court and the US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?” 33 BRITISH JOURNAL OF POLITICAL SCIENCE 535-556.
Greenhouse, Linda. 2005. BECOMING JUSTICE BLACKMUN. New York: Henry Holt.
Kritzer, Herbert M. 2001. “The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court.” 85 JUDICATURE 32-38.
Segal, Jeffrey A. and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. New York: Cambridge University Press.
Woodward, Bob and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon & Schuster.
BUSH v. GORE, 531 U.S. 98 (2000).
© Copyright 2007 by the author, Chris W. Bonneau.