Kenneth Starr puts the court on top of all

September 29, 2002|By David W. Marston | By David W. Marston,Special to the Sun

First Among Equals: The Supreme Court in American Life, by Kenneth W. Starr. Warner Books. 320 pages. $26.95.

Ken Starr has a written a new book, which for him is a high-risk activity, since his last book arguably cost him a seat on the Supreme Court.

Consider: Until 1994, Starr was a consensus favorite for eventual appointment to the court. After Duke Law School, he clerked on the contentious Fifth Circuit, then won a coveted Supreme Court clerkship. In 1981, Starr became counselor to the U.S. attorney general, and in 1983, at the venerable age of 37, he was appointed to be a judge on the prestigious U.S. Court of Appeals. Six years later, Starr was named by President Bush to be solicitor general, the nation's top appellate lawyer. And in between, Starr built a stellar reputation in private practice, a genteel lawyer's lawyer with a hit man's instinct for the legal jugular.

But then came Whitewater, Starr's service as independent counsel, and the incendiary Starr Report. Today, after the partisan furies unleashed during that surreal season, it would take a political sea change for Starr to have a shot at the high court.

Still, seas sometimes change. And even if they don't, Starr's new book, First Among Equals, demonstrates that he still has the extraordinary legal insight and creativity -- plus a healthy dose of ambition -- that produced all those career successes in the first place.

First Among Equals is not about Whitewater. Rather, it is part-history, part-memoir, and a thoughtful overview of major, often controversial, Court decisions during the last three decades. Starr's stated goal is "... to describe the legal tools the justices have used ... to explain the big ideas that have moved the justices ... and to show the difference that the vote of a single justice has frequently made."

In this, using his insider's insight, Starr largely succeeds. After sketching brief bios of each justice, Starr surveys a number of "rights" cases (First Amendment, affirmative action, and abortion, Miranda), and then explores basic federalism principles. He concludes with a provocative analysis of Bush v. Gore (spotlighting a response by Gore attorney David Boies that Starr calls "especially unhelpful to the Gore cause"). Throughout, Starr is particularly adept at tracking the shifting combinations of justices, which produce majorities, often to the intense consternation of the presidents who appointed them.

Perhaps the biggest of the "big ideas" explored by Starr is the one implicit in his title. High school civics to the contrary, the three branches of government are not co-equal. The high court has been overruling Congress since Marbury v. Madison in 1803, and Starr traces a recent series of 5-4 decisions dramatically cutting the power of Congress to legislate under Commerce Clause jurisdiction. And despite the perceived power of presidents, Starr describes how the court has recently rebuffed three sitting presidents, making a persuasive case that the court is in fact first among equals.

Although intended for general readers, Starr's encyclopedic knowledge of his subject is occasionally intimidating, and his attempts at informality (e.g., "a blast from the Warren Court past ..." sometimes seem jarring. But these are quibbles. First Among Equals may not outsell the Starr Report, but it is informative, insightful and a valuable addition to Supreme Court literature.

David W. Marston is author of Malice Aforethought, an analysis of abuses in law practice, and co-author of Inside Hoover's FBI, with Neil J. Welch. U.S. attorney for the Eastern District of Pennsylvania from 1976 to 1978, Marston is now a lawyer in civil practice in Philadelphia.

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