The Center Holds: The Power Struggle Inside the Rehnquist Court.

James F. Simon Simon & Schuster, 1230 Avenue of the Americas, New York, NY 10010. 384 pp., $245.

Reviewed by Erwin Chemerinsky

In the 1980s and early 1990s, two Republican presidents, Ronald Reagan and George Bush, sought to move constitutional law in a conservative direction through their appointments to the Supreme Court. More than at any time since the era of Franklin Roosevelt's appointments in the 1930s, ideology was openly used as a criterion in selection.

New York Law School Professor James Simon's new book assesses the impact of the justices Reagan and Bush appointed and considers the extent to which there has been a conservative revolution in constitutional law.

As the book's title implies, Simon's conclusion is that the revolution never happened, that ultimately moderate positions have prevailed in most areas of constitutional law. Indeed, the first sentence in the book declares, "This is the story of a conservative judicial revolution that failed." The last sentence states, "For those who value the civil rights and liberties protections guaranteed by the decisions of the modern Supreme Court spanning more than three decades, it was a very close call."

Although there is a great deal to admire about Simon's beautifully written book, his overall conclusion is questionable. In the last decade, there has been a dramatic change in almost every area of constitutional law, and the movement has been in a very conservative direction. In fact, one wonders whether Simon would modify his conclusion in light of the just-completed Supreme Court term --virtually every important case was a 5-4 ruling supporting positions favored by conservatives.

Simon divides his book into four parts, each examining a different subject of constitutional law: race, abortion, crime and punishment, and the First Amendment. The law with regard to each subject has changed radically in recent years.

With regard to race, a series of decisions in 1989 very narrowly interpreted the scope of federal civil rights laws and led to the Civil Rights Act of 1991. Also, the conservative Rehnquist Court greatly limited the ability of the government to engage in affirmative action. In City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), and the more recent decision in Adarand Constractors, Inc. v. Pena, 115 S. Ct. 2097 (1995), the Court made it extremely difficult for the government to use set asides to help minority-owned businesses. In a series of decisions in the 1990s, the Court ended many federal court efforts at school desegregation. The most recent of these was Missouri v. Jenkins, 115 S. Ct. 2038 (1995).

As to abortion, Simon is correct that the center held in the sense that Roe v. Wade, 410 U.S. 113 (1973), was not overruled. However, the Court has approved many restrictions on a woman's right to have an abortion. For example, the Court approved waiting periods for abortions, parental notice and consent laws, and government denial of funds to clinics that perform abortion counseling.

The third area Simon discusses--criminal procedure--is the one in which the Court has most dramatically moved constitutional law to the right. The Court substantially restricted the availability of habeas corpus and broadly expanded the ability of the government to engage in searches without individualized suspicion. For instance, in the recent decision in Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), the Court upheld the constitutionally of random drug testing for high school athletes.

Finally, there have been major changes in the law with regard to the First Amendment's religion clauses. In Employment Division, Department of Human Resources v. Smith, 110 S. Ct. 1595 (1990), the Court radically changed the law of the Free Exercise Clause by holding that it could not be used to challenge neutral laws of general applicability no matter how much they burden religion. The Smith case was expressly overruled by the Religious Freedom Restoration Act of 1993.

The Court also has significantly weakened the protection of the Establishment Clause. For instance, in Rosenberger v. Rector and Visitors of the University of Virginia, 115 S. Ct. 2510 (1995), the Court for the first time approved direct government financial assistance to a religious group.

Overall, the book has many superb features. Professor Simon, a former correspondent and contributing editor to Time magazine, writes clearly about technical aspects of constitutional law. And he includes fascinating profiles of each justice.

Although the book has much to recommend it, the author's conclusions about the Rehnquist Court are debatable. The just-completed term shows that the Court is composed of a solid conservative majority. The interesting question in the years ahead will be, How often does the center really hold?

Erwin Chemerinsky is the Legion Lex Professor of Law at the University of Southern California Law Center in Los Angeles.