Scott Lemieux: Review of Jan Crawford Greenburg's Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (Penguin Press)
As someone who not only studies the Supreme Court but teaches constitutional law, I always look forward to inside accounts of the Court -- the anecdotes they offer may be used to help students stay awake. Journalist Jan Crawford's much-discussed new book Supreme Conflict has both strengths and weaknesses compared to previous popular books about the Court, such as Edward Lazarus's Closed Chambers and Woodward and Armstong's The Brethren. It is not the book to turn to if you're interested in a legal analysis of the Rehnquist Court written for a general audience. (For that, I would recommend Mark Tushnet's fine recent book A Court Divided.) And since Greenburg is still a Supreme Court reporter, it doesn't (for better or worse) contain a great deal of the internal gossip about the Court that pervaded the Lazarus and Woodward-Armstrong books.
It's also true, as John O. McGinnis noted, that the book is considerably more sympathetic to conservatives than its obvious predecessors. What one thinks about this will depend, of course, on one's normative predilections. For my part, I was consistently annoyed by Greenburg's acceptance at face value of the (highly contestable, to put it mildly) claims made by conservatives that they want to lessen the role of the Supreme Court in American politics. I also gritted my teeth at seeing her describe as"defensible" William Rehnquist's ludicrously specious concurring opinion in Bush v. Gore -- an opinion requiring an assumption that applying a consistent interpretation of Florida's highly ambiguous election statutes was analogous to the arbitrary nullification of clear statutes by state courts in the Jim Crow South.
On the other hand, her greater sympathy for conservatives produces some good insights, such as the most detailed explanation yet of why it's dead wrong to claim that Clarence Thomas is merely Antonin Scalia's indistinguishable sock puppet (a myth Tushnet also debunks). Greenburg notes that, in Thomas's first term, it was Scalia who switched his conference vote to join a Thomas opinion, not vice versa -- but she also points out that, in encouraging Scalia to be more boldly conservative, Thomas inadvertently pushed the Court's more moderate conservatives to the center.
Whatever one's quibbles, however, what makes Greenburg's book worth reading is that she gets the big picture right. In particular, she argues that with the appointment of new Chief Justice John Roberts and Associate Justice Sam Alito, Bush has finally succeeded in engineering a significant rightward shift. Throughout her book, Greenburg's analysis provides further reason to reject the more optimistic (from a liberal perspective) narrative about the effects of Alito replacing Sandra Day O'Connor. ...