by Nancy Maveety. Lawrence, KS: University Press of Kansas, 2008. 200pp. Cloth. $29.95. ISBN: 9780700616107.
Reviewed by Terri Peretti, Department of Political Science, Santa Clara University. Email: tperetti [at] scu.edu.
In QUEEN’S COURT, Nancy Maveety examines policy leadership on the Rehnquist Court and offers a fascinating and nuanced assessment. Her account offers several interesting insights, including (1) the rise of a “supremely individualist conception of judicial power” (p.61), seen particularly in the increase in separate opinion writing and “multivocal judicial decision making;” (2) the dominance of “rule-of-thumb jurisprudence” that is “heavily dependent on singular judgment calls by individual justices in case by case adjudication” (p.8); (3) the key role of Justice O’Connor in developing and deeply embedding these complementary practices; and (4) the powerful and multiple legacies of these behavioral developments for constitutional doctrine, the Court’s institutional norms and practices, Court commentary, and decision making in the lower federal courts.
The first two claims regarding an individualist and “choral” Court enamored of rule-of-thumb balancing are clearly explained and well-supported, often with new evidence drawn from Justice Blackmun’s papers. The third contention regarding the centrality of O’Connor for these developments may be correct but is advanced more by repeated assertion than persuasive evidence. The fourth “judicial legacy” question is original and provocative, with Maveety inviting us to go beyond merely assessing behavioral patterns during a particular Court era, instead thinking more broadly about whether and why those patterns might persist and with what consequences for the Court and constitutional theory.
QUEEN’S COURT offers much of value and I highly recommend it. It will draw the attention of those interested in the Rehnquist Court era; decisional practices involving opinion writing, coalition building, and policy leadership; and the impact of Rehnquist-era developments for constitutional doctrine, judicial scholarship, and the Court itself. It is an interesting and thoughtful book.
Maveety begins with a puzzle: despite being highly regarded as a successful chief justice, Rehnquist was not a dominant voice or a policy leader during his tenure. Instead, the Court was “multivocal” with “many separate judicial voices raised in opinion to constitute Court decisions” (p.3). In fact, the Court was “staffed by nine separate sovereignties,” which “is why there was at once no Rehnquist Court and also, a distinctively Rehnquist-era Court chorus” (p.3). The “choir director,” Maveety contends, was O’Connor – “Queen Sandra” – rather than Rehnquist. Understanding these new behavioral patterns and their [*74] doctrinal and intellectual impacts sets the agenda for the rest of the book.
Chapter One examines “Policy Leadership on the Early Rehnquist Court,” with policy leadership “refer[ring] to which justice – chief or associate, conservative, liberal, or other – controls or fashions the Court’s legal policy outputs” (p.14). Maveety finds a decentralized policy leadership pattern, though it was enabled by two Rehnquist-initiated institutional changes: a sharp decline in the number of cases accepted for review and formal opinion and a “truncated and nondeliberative conference” (p.14). Rehnquist encouraged issues and details to be worked out in the opinion-writing phase, which is consequently where policy leadership and coalition-building occurred. Maveety thus looks “behind the scenes” at the justices’ efforts to exert influence over the Court’s decisions and opinions.
Relying on Justice Blackmun’s papers and the Benesh-Spaeth Supreme Court Database for the 1986, 1991, and 1993 Terms, she identifies and documents two types of influence-exertion behavior – concurring opinions and conditional join memos (and responses to them). Examining the case records for these two phenomena produced some interesting findings. Policy exertions on the early Rehnquist Court were frequent and increased over time. Policy leadership was highly decentralized and dispersed, with different justices dominating the coalition-building and opinion-writing process in each of the three terms, although Thomas and Rehnquist tended to be the least active justices. Centrist justices like O’Connor and Kennedy frequently engaged in “policy leadership exertions,” but so did justices more distant from the Court median, such as Stevens, Blackmun, Souter, and Ginsburg. Maveety offers little evidence to support her claim that O’Connor helped to establish this individualist norm, rather than merely practicing and taking advantage of it; that is particularly true given that O’Connor, along with Thomas and Rehnquist, had the fewest leadership exertions in the 1991 Term. In any case, Maveety concedes that O’Connor was “less a solo ‘norm entrepreneur’ than one of several powerful associate justices who shaped the policy outcomes of their chief justice’s Court” (p.36). More strongly supported are her conclusions that policy leadership on the early Rehnquist Court was widely dispersed and “poorly orchestrated” (p.30) and that Rehnquist’s Court “was more his colleagues’ than his own in terms of influence over legal policy outputs” (p.36).
The next chapter explores the Rehnquist Court’s “propensity for judicial chorality – the issuance of separate concurring opinions – often including joiners – that bracketed the opinion of the Court and collectively made up the Court’s decision-making ‘chorus’” (p.37). Maveety concedes that a “dissensual trend” was well established by the start of Rehnquist’s tenure. However, she finds both a broadening of the use of concurrences (i.e., by more of the Court’s members) and an increase in “concurring coalitions, as opposed to individuals discreetly disagreeing with the majority opinion coalition” (p.40). Demonstrating how entrenched concurring behavior became in the Rehnquist era, “multivocal” decisions were not limited to high-salience cases, nor did concurrence rates vary with [*75] ideology; after all, the most prolific filers were Scalia, Stevens, O’Connor and Kennedy, with Rehnquist, Ginsburg and Souter least likely to concur. Maveety plausibly speculates that Rehnquist Court justices became powerfully committed to “sounding their discernable notes within the institutional refrain” (p.40) and “making sure that the decisional record reflected the exact parameters of the Court’s opinion so that it would not or could not be misapplied to constrict or distort the next opinion in the doctrinal line” (p.50). Concurrences, both regular and special, “served a rule-making function that enhanced the authority of individual justices to promulgate doctrine” (p.40). This is unlikely to disappear with Rehnquist’s departure from the Court, she argues, with the practice deeply ingrained among Rehnquist Court associates and clerks.
Instead of characterizing the Rehnquist Court in traditional ways, for example along an activism or ideological continuum, Maveety offers an alternative in Chapter Three, “Associates’ Justice.” She discerns from its leading cases individualism and rule-of-thumb balancing as the Rehnquist Court’s dominant decision making approach and thus its “primary institutional contribution.” “[T]he Rehnquist Court’s doctrinal legacy must be reframed as associates’ justice, that is, case-fact-sensitive jurisprudential pragmatism that occurred as individual associate justices vied for influence from the center and with one another” (p.61). Intra-Court debates focused not on the desirability of balancing itself, but on which justice offered a more suitable multi-factor, context-dependent doctrinal rule. Rule-of-thumb balancing does not appear to have emerged by necessity out of ideological division. Instead, its use by various opinion authors and in decisions where solid majorities existed suggests its deliberate and extensive adoption by the Court. The chapter does concede that there were “many thumbs,” i.e., many justices employing “rule of thumb-ism” (p.62). However, O’Connor is again given special significance in facilitating this increasingly dominant practice. Rehnquist-era decisions reflected “O’Connor style individualism” and constituted a new regime of “O’Connorist jurisprudence.” The “doctrinal legacy of the period, then, [was] a ‘queen’s Court’ of O’Connor-style legal reasoning across the board” (p.102).
Another legacy is the Rehnquist Court’s “ideational impact,” which is claimed to rival the Warren Court in its effect on constitutional theorizing. Judicial activism and juricentrism have been “increasingly castigated,” with calls for restraint and “minimalist decision making and institutional limitations . . . supplant[ing] a faith in broad and principled judicial review” (p.108). After briefly and deftly taking the reader through five decades of constitutional scholarship, Maveety offers several clever observations. She first reports that the Rehnquist Court “united a devotion to judicial seriousness with a multivocal approach to decision making” (p.121). The justices spoke confidently, seriously, and separately, “highlighting the (self-?) importance of the individual jurist to constitutional law,” each determined to clarify exactly what the Court’s ruling did and did not mean (p.122). Ironically and unintentionally, the commentators’ call for restraint safeguards the Court’s “rule of thumb [*76] precedents” that reserve to it considerable discretion and power as “doctrinal promulgation” becomes “a perpetually aggregative and additive process . . . [D]octrine is never truly set, and so never really governs judicial choice” (p.148). Thus, “O’Connorism’s wrapping dresses as it conceals the vagaries of judicial power” (p.155). The final irony or “discrepancy” that Maveety observes is O’Connor serving as “the contemporary gold standard for a judge: the practical jurist” (p.126) on a Court that was cast as a “juricentric villain” (p.125), despite O’Connor contributing the most to its identity.
Chapter Five offers a brief look at how “rule of thumb juricentrism” – O’Connorism – continued in the decisions of the early Roberts Court and will likely prove resistant to the new Chief who has expressed his desire for judicial modesty and a more unified Court voice. The conclusion then explores the consequences of this “new decisional paradigm or . . . decisional pathology” (p.146). They include: a loss of public support for the Rehnquist Court and its decisions; problems for the lower federal courts including excessive delegation of discretion and a similar and corresponding increase in judicial chorality on appellate courts; an undermining of the rule of law as vague, multi-factor tests are “mysteriously” and unpredictably applied; and “a critical problem of legitimacy.” Echoing Thomas Keck (2004), Maveety regards the latter as “the greatest danger and the most worrisome legacy . . . [A] rule-of-thumb approach masks ideological legal policy making as ‘judicious’ balancing of interests and adapting of precedential guidelines [which] inures us to judicial power without frankly acknowledging it as such, and provides comfort and cover where none should exist for unaccountable and possibly unwarranted judicial decision making” (pp.154-155).
As with any ambitious book like this one, some claims are under-developed and insufficiently defended, with the most troubling one regarding the critical role of Justice O’Connor. Perhaps it is because she is an expert on O’Connor (Maveety 1996) that the author seems determined to place the justice at the center of these developments rather than allowing the evidence to lead us toward or away from that conclusion. For example, O’Connor was not the most frequent concurrer on the Rehnquist Court and was in the top three in only two of the terms in the Court’s last decade (pp.47-48). Yet Maveety argues for O’Connor’s “essential contribution to the individualist conception of judicial power the separate opinion writing on the Rehnquist Court reflected” (p. 48). O’Connor demonstrated the importance of concurrences with her “undue burdens” test regarding abortion and the endorsement test in religious establishment cases (pp.48-49). Additionally, Maveety argues, O’Connor was “among the regular concurring opinion writers” and thus “helped to sustain the trend” (p.49). This weak conclusion is followed by a concession: Of course, “[n]o one justice . . . could be single-handedly critical to the Court’s choral decision making, but single justices could repeatedly show their decisional singularity and, by doing so aggregatively, manifest chorally” (p.49). Maveety later reasserts the claim that O’Connor’s role in developing “individuated judicial power was as a teacher of the convention, by being a confirmed practitioner” (p.56). Again, [*77] concessions follow: it is “of course difficult to verify O’Connor’s role-model influence” (p.56); additionally, Stevens and Scalia could also be viewed as teachers and practitioners, though they lacked O’Connor’s “centrist coalitional position.” Most of us will be inclined to agree with the book’s point regarding O’Connor’s substantial doctrinal and stylistic influence on the Rehnquist Court. However, this alone does not get us to the “Queen’s Court” conclusion that Maveety desires. The evidence is often insufficient and alternative explanations are overlooked, such as Kennedy’s considerable influence, Scalia’s creation of a vacuum for centrist leadership, and even Brennan’s effective practice, demonstrated over several decades, of both frequent concurrences and forging of majority coalitions through (when necessary) narrow, case-based doctrinal rules.
Despite this complaint, QUEEN’S COURT is thought-provoking and makes a valuable contribution to our understanding of the Rehnquist Court and the growth of dissensus and separate opinion-writing over the last two decades. It also offers a fine example for scholars to follow in assessing judicial behavioral change through doctrinal analysis, empirical assessment, institutional development, and normative evaluation.
Keck, Thomas M. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY. Chicago: University of Chicago Press.
Maveety, Nancy. 1996. JUSTICE SANDRA DAY O’CONNOR: STRATEGIST ON THE SUPREME COURT. Lanham, MD: Rowman & Littlefield.
© Copyright 2009 by the author, Terri Peretti.