Clear writing comes from clear thinking. Unfortunately, at times the arguments Mark Tushnet presents in his new book “In the Balance: Law and Politics in the Roberts Court” are quite murky. “In the Balance” follows the ascension of Justices John Roberts and Elena Kagan to the Supreme Court. It then focuses on how the Roberts Court has dealt with four legal topics: Second Amendment rights, business cases, free speech, and campaign finance restrictions. Tushnet asserts that Roberts and Kagan believe in “competing visions of constitutional law,” which have locked them in a power struggle for the intellectual leadership of the Supreme Court.
Tushnet describes these competing visions as he understands them, and then attempts to explain their effects on each justice’s stance regarding the aforementioned legal topics. Although Tushnet claims that justices primarily make decisions based upon the clear dicta of the law, he notes that their constitutional philosophies influence “the 5 percent” of cases open to wider interpretation.
While Tushnet’s analysis initially seems sound, throughout the remainder of “In the Balance,” he carelessly throws individuals into one of two camps, conservative or liberal, ascribes inaccurate political tenets to each group, and then builds his arguments upon these flawed premises.
Tushnet insists that liberals favor “the individual” while conservatives favor big businesses. Setting Tushnet’s careless selection of terms aside, the right does not incontrovertibly support businesses over the individual any more than the left indubitably champions the individual. Tushnet constructs a false dichotomy in which the interests of business and the interests of the individual inevitably conflict, and then claims that liberals champion the individual while “conservatives” like Roberts always favor “big business.” Of course, Tushnet’s idyllic individual clearly does not include those who belong to groups he labels as “conservatives,” “gun nuts,” and “the rich.” In short, he only uses the term “individual” when it suits his purposes.
Tushnet’s support of judicial flexibility ultimately depends upon the issue or group at stake. This judicial ideology cuts the judicial process free from its traditional mores and results in an alarming tendency to determine winners and losers in a legal process based on personal opinions. Tushnet admits that Justice Kagan intends to use judicial discretion to advance the rights of particular groups, but he supports this endeavor because he believes she does so in support of the right groups. In contrast, Tushnet criticizes Roberts — and all conservatives — because he believes that they favor the wrong groups.
At one point, Tushnet concedes that it is difficult to deduce policy positions from the Supreme Court’s case records due to the multiplicity of legal issues surrounding each case. Yet this concession does not stop Tushnet from concluding that Roberts uses procedural rules to favor businesses over individuals, without providing a single scrap of evidence for this conclusion at all.
Can I recommend Tushnet’s book? Only if you enjoy picking through hundreds of pages of snide remarks, superfluous opinions, and puzzling conclusions and paying for the privilege. If any redemptive value exists in a perusal of “In the Balance,” it lies in Tushnet’s clear synopsis of the academic left’s view on Second Amendment rights, business interests, speech rights, and campaign finance restrictions.
In the final acknowledgements, I came across a rather ironic quote. Tushnet gratefully acknowledges that his “friend Louis Michael Seidman read several chapters, and cautioned me against making insupportable claims about what one or another justice might have been thinking.” Upon finishing the book, I could not help wishing that someone had cautioned Tushman against making any insupportable claims.
