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Early in FIRST AMONG EQUALS Ken Starr describes President John Adams as a "virtuous, principled man, lacking in political skills." This characterization could easily be applied to the author himself. Starr, the independent counsel whose investigation in 1998 of the Clinton-Lewinsky mess led to the passage of two articles of impeachment in the House of Representatives, was famously demonized in a public relations war waged by his political enemies who sought to discredit him and his work as independent counsel. Four years later, Starr returns to the public arena as the author of a book about the Supreme Court, an institution he worked for as a clerk and appeared before in private practice and as Solicitor General under the first President Bush. The book opens a window through which Court observers --- casual and professional alike --- will gain insight into the Court's history, workings, and personalities.
In examining the Court over the last thirty years, Starr reviews the tools and methods the Court uses to decide polarizing cases involving abortion, criminal procedure, free speech, affirmative action and others. Starr, a political conservative, prefers decision-making processes that adhere to precedent, are firmly rooted in statutory or Constitutional text, and aspire to the unifying principles of equality and neutrality. In the 1960s, under Chief Justice Earl Warren, the Supreme Court was prone to --- in Starr's view --- the worst sort of activist decision making. The Warren Court acted not as judges but as liberal political reformers who, with "missionary zeal," sought to reshape society through a series of radical, constitutionally unsound decisions.
Although FIRST AMONG EQUALS includes no formal analysis of the Warren Court, Starr frequently references Warren for his lasting impact, especially with regard to privacy issues. For example, the right to abortion found in Roe v. Wade, which was decided after Warren left the Court, would likely not have happened were it not for expansive privacy rights first announced by the Warren Court.
Warren Burger sat as Chief Justice from 1969-1986. As a young lawyer, Starr clerked for Burger and he provides unique perspectives on opportunities missed by that Court. Burger, unpopular among his fellow justices, was a poor consensus builder. And Starr, to his credit, does not fail to harshly criticize his former boss for perceived failings. For example, Starr bemoans the fact that Burger was unable to muster the votes required to overturn the famous Miranda decision, which mandated that people in custody be provided with warnings aimed against self-incrimination. Starr almost relegates Burger to an insignificant figure when he indicates that it was Lewis Powell, not Burger, who commanded the most respect on the Burger Court. Powell, Starr claims, was the driving force shaping the issues at the time.
Starr himself served as a judge for five years on the U.S. Court of Appeals for the District of Columbia. He says he learned that honorable, disinterested judges are the ones who can vote against the people who helped put them on the bench. However, the current Supreme Court justices for whom Starr has the most praise --- Antonin Scalia and Clarence Thomas --- are the ones who consistently fail this test. Scalia and Thomas usually vote on the same side of most issues, and they almost always vote in a way that accords with the beliefs of their judicial patrons. Thomas is alleged by Starr to be an original thinker, brimming with ideas.
Yet Starr fails to provide examples of his originality. Rather, Starr cites numerous cases where Thomas predictably comes down on the conservative side of a given dispute. By contrast, Justices O'Connor, Kennedy, and the once ultraconservative Rehnquist have established credentials as innovative thinkers, capable of voting in ideologically surprising ways. Rehnquist, for example, adheres strictly to the principle of upholding precedent --- his instincts generally tell him to support existing case law for the sake of judicial consistency. To this end, he has a proven record of voting to uphold cases, like Miranda, which run contrary to his core political philosophy.
Starr clearly has personal preferences among members of the current Court, and he is not afraid to make plain his disdain for Justices Souter and Stevens. In a chapter discussing the Bush/ Gore election dispute, he relates an anecdote in which Souter comes across as unprepared and almost foolish, as one of the advocates for then Governor Bush corrects Souter on an obvious fact in the record. Starr has great respect for Justice Breyer's intellect and his ability to build consensus. Justice O'Connor is another favorite, who Starr calls the "most influential and powerful woman in America."
In the end, however, Starr's real favorite is the Court itself. FIRST AMONG EQUALS is his love letter to an institution he reveres. And this authoritative telling of some of its history adds greatly to the rich tapestry of Supreme Court literature.
--- Reviewed by Andrew Musicus
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