Tushnet's a Court Divided

Tushnet's A Court Divided

By R. Anastasia Tremaine - February, 2005

Tushnet's A Court Divided

Tushnet (2005) takes an insightful look into the current Supreme Court and what it means for the future in his work entitled A Court Divided. Much has been discussed about the Court, particularly since the 2000 election ended up being referred to the judicial branch of government. Constitutional law has always been fascinating subject, as it broaches the areas of guaranteed legal protections. Landmark decisions change the course of history and determine which rights the people have and have not.

The book addresses the obvious problems. First, the author identifies the division between liberal and conservative judges. These two divisions have played a huge role not only in the court systems, but in the political arena as well. Because the president is able to appoint judges, many people believe that he will appoint someone like himself. A Republican president will appoint a conservative and a Democrat will appoint a liberal. Although this is largely the case, all too often surprises emerge. It should really not be a surprise at all that judges have their own minds and are not stereotypical. Brilliant men seldom have one mindset, even though they may lean one way or another. Still, the idea that the president may appoint chief justices does suggest that, like a game of chess, the future of Constitutional law is to some extent contingent on who is president. Depending upon the makeup of the court at the time, one appointment can change a great deal and shift the court either to the right or to the left.

The author does admit that the court is divided by party or ideology, but he does contest the argument that a particular type of judge will always go a particular way. Rather, he looks at each individually and notes each of their distinct prejudices. The idea that the conservatives and liberals are at odds is not necessarily true and instead the author vies for a theory that shows divisions in certain subject areas. It is not necessarily the case that conservatives will side one way or another. For example, the author points out that many social issues are not ruled conservatively and this is because some of the fiscal conservatives on board are really just fiscal conservatives.

It appears that what the author is saying is that while there are certainly tendencies for a judge to veer right or left, it is the composition of the court at any given time that really dictates the outcome. Although he does not say so in so many words, the author does express the idea that the court is predictable when one has the right tools of analysis, but it is not predictable based on the ratio of conservative to liberal judges. That is a misnomer. Of course, if that is the case, much attention that is paid to the appointment of judges is not warranted. Hence, the author expresses a point that has been made by some but is largely disfavored by a media that loves to accentuate the relevance of appointments.

Tushnet's (2005) point is this: he claims that judges are activists in their own way. This is quite a controversial position. Not only does he make this blanket statement but he goes through the court, judge by judge, and discerns each of their preferences. The reason why this is controversial is that the concept of judicial activism itself is controversial. Historically, during the judicial review process, restraint is admired. Judicial restraint is about trying to maintain the integrity of the Constitution, even if it means holding on to unfavorable legislation or not acting according to conscience. In other words, according to this idea, a Supreme Court justice should want to interpret the law as conservatively as possible, so as not to change the meaning of the Constitution. This is similar to other types of cases where a judge must stick to what the law allows and not what he or she thinks is right. By being conservative in interpreting law, and trying to stick as close to what the Constitution had intended as possible, one is exercising judicial restraint. Yet this author says, and it appears to be so, that the court has exercised judicial activism. Roe v. Wade is a case in point. Activism goes to the idea that the Constitution may be interpreted in a broad manner where the mores of the day are considered.

Today, the most significant issue facing the legislature and the courts is the concept of gay marriage. While these issues are to some extent tackled by Tushnet (2005) it is only in the context of the larger subject which is how the court is divided. As its title suggests, this work is about the division of the court, not important Constitutional