Courting Disaster: The Supreme Court and the Unmaking of American Law.

Martin Garbus Times Books www.henryholt.com 336 pp., $25

Conservative politicians are fond of attacking liberal judges, but the reality is that conservatives are solidly in control of the U.S. Supreme Court. For many reasons, the extent to which conservative judges are activists is not realized by most inside and outside the legal profession.

The Supreme Court has not overturned controversial decisions like Roe v. Wade or Miranda v. Arizona, creating the impression of a moderate Court. Many of its most conservative rulings have involved technical topics such as sovereign immunity and the scope of Congress's powers under [section] 5 of the Fourteenth Amendment. Perhaps most important, its conservative rulings do not come all at once as a package, but one decision at a time over many years.

Martin Garbus's new book, Courting Disaster: The Supreme Court and the Unmaking of American Law, is most important in pulling together what the Court has done in the last 16 years under the leadership of Chief Justice William Rehnquist. Garbus details a disturbing picture of a Court that has moved constitutional law far to the right. Moreover, he describes the possible impact of President George W. Bush keeping his campaign promise and appointing additional justices with the philosophy of Antonin Scalia and Clarence Thomas. The result would be an extremely conservative Court that would last for decades.

Garbus's book begins with a lengthy chapter describing the successful effort by presidents Ronald Reagan and the first George Bush to fill the federal bench, including the Supreme Court, with conservatives. The remainder of the book looks at how the Court has moved to the right in specific areas of law, ranging from criminal procedure to reproductive choice to federalism to economic rights to race and affirmative action. Each chapter carefully describes key decisions and explains how they have implemented a conservative vision of the law.

The author makes no pretense of neutrality; his is a liberal critique of a conservative Court. Liberal readers will find themselves nodding at every page, and conservatives will vehemently disagree with everything in the book.

For those who do not carefully follow every ruling by the Supreme Court, Garbus offers an excellent overview of what the justices have been doing over the last decade. The book is written in an engaging and easily readable style, and the author does a good job explaining relatively technical areas of the law, such as sovereign immunity and the Takings Clause. Garbus is particularly effective in describing cases, telling them as stories.

Even avid Court watchers will benefit from his comprehensive overview of the changes in constitutional law. Garbus exposes some recent Court actions that have received relatively little publicity and have escaped the attention of many experts. For example, he describes in detail several cases where executions occurred because the Supreme Court tied in its vote for a stay, when one or more justices were not participating in the matter. The author powerfully describes the irony of those votes in which a tie meant death.

Garbus is not the first to write of the Court's conservative judicial activism. David Savage's Turning Right: The Making of the Rehnquist Supreme Court (1993) and Edward Lazarus's Closed Chambers (1999) are other excellent books in this genre. What distinguishes Garbus is his passionate vision of how the Supreme Court should be advancing individual rights and freedom. While I read this book, I imagined William Brennan and Thurgood Marshall sitting on a cloud in heaven and cheering every page.

Garbus wrote Courting Disaster before the Republicans took control of the Senate in last year's elections. This, of course, increases President Bush's ability to appoint conservative judges to the Supreme Court and the U.S. Courts of Appeals. For those who care about civil rights and civil liberties, the message of Garbus's book and recent political events is clear: It's really bad, and it's going to get a whole lot worse.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.