The Rehnquist Court: Judicial Activism on the Right - Softcover

Softcover

ISBN 10: 0809080745 ISBN 13: 9780809080748

Publisher: Hill and Wang, 2003

Synopsis

Incisive commentary on recent Supreme Court decisions from America's foremost constitutional scholars

For nearly all his tenure as Chief Justice of the Supreme Court, William Rehnquist has enjoyed the support of a slim but usually solid majority of his fellow justices. With it he has been able to effect a dramatic shift to the right in many vital areas of constitutional law. Displaying a judicial activism not seen since the 1930s, Rehnquist and his allies, in a series of 5-4 decisions, have undermined civil rights and weakened the federal government's ability to respond to pressing social needs.

As the Rehnquist court concludes its fifteenth term, the well-known constitutional authority Herman Schwartz has assembled seventeen distinguished legal scholars to evaluate its record on the many controversial issues that have come before it. Among them are Stephen Bright on capital punishment, Charles Ogletree on criminal procedure, Norman Redlich on religion, Allan Morrison and David Vladeck on regulation, and John Mackenzie on Bush v. Gore. The book concludes with an overall reflection on Rehnquist's legacy by Tom Wicker.

About this title

About the Author:

Herman Schwartz, a professor of law at American University, is a civil rights and civil liberties activist who has written extensively on constitutional law and human rights. He is the author and editor of three previous books. He lives in Washington, D.C.

Excerpt. © Reprinted by permission. All rights reserved.:

Introduction

Herman Schwartz

In the introduction to The Burger Years (1987), I wrote that the appointment of Associate Supreme Court justice William H. Rehnquist as the sixteenth chief justice of the United States and the elevation of Court of Appeals judge Antonin Scalia to the high court mark "the beginning of a reshaping of the Supreme Court, the contours of which are still unknown." Fifteen years later, we know those contours. The Rehnquist Court is the most conservative Supreme Court since before the New Deal. Ronald Reagan's efforts to reshape the American judiciary have succeeded. 

For a half century, from 1937 until as late as 1987, the Court could be characterized as moderate to liberal, for even the Burger Court, the Rehnquist Court's predecessor, turned out to be far less conservative than had been anticipated after Nixon appointed four justices. But in 1988, Anthony Kennedy succeeded justice Lewis F. Powell, Jr., who, though fundamentally conservative, had often voted with the Court's liberals on such issues as affirmative action and church-state separation. Kennedy has been more consistently conservative, which has produced a fairly firm five-justice majority. This majority has persistently used its one-vote margin to move the constitutional and legal clock back toward the 1920s and early 1930s. It has not been able to do so completely, and probably has not even wanted to in all respects. Indeed, in some areas, such as women's rights and to some extent the rights of gays and lesbians, the Court has consolidated earlier gains and even moved beyond them, though usually over the objections of Rehnquist, Scalia, Clarence Thomas, and either Kennedy or Sandra Day O'Connor. Nevertheless, the conservative bloc has moved as aggressively as its slim margin has allowed to undermine or restrict many of the gains for social justice and civil rights that the Court consolidated over the preceding fifty years. 

Two events dominate this period, both coming at its end and within a year of each other: Bush v. Gore and the terrorist attacks on September 11, 2001. Their long-term consequences for the future of the Supreme Court and the nation are still unclear, despite their immense immediate impact. There may not even be any real long-term consequences to Bush v. Gore, and the Court will probably not be harmed or even affected by the outrage that decision produced. Soon after the decision, most Americans appeared willing to forget and forgive whatever the Court did that was wrong. Moreover, impartial studies of the contested balloting indicate that although Vice President Al Gore would have won by a very narrow margin if all the votes cast in Florida had been recounted, the limited recount that the Court blocked -- the only matter at issue before it -- would not have changed the outcome. This, of course, does not change the fact that in its handling of that case, the Court's conservative majority displayed blatant partisanship and judicial unscrupulousness, as John P MacKenzie's essay in this collection demonstrates. But those studies make it less likely that the Court's public standing will be seriously undermined by its behavior. 

In part, this is because the conventional wisdom that the Supreme Court has been hurt by a series of self-inflicted wounds (Dred Scott is the most frequently cited example) is wrong. The Court hasn't really suffered all that much from these "wounds." It has become so "peculiarly powerful," as Tom Wicker puts it, that it is less affected by public reaction than the other two branches of government. The Court's decisions since Bush v. Gore certainly show no tendency on its part to pull in its horns. 

As to the consequences of September 11, it is certain that there will be important ones. At least some of the many intrusive security measures adopted by the Bush administration on its own and by Congress at its behest -- surveillance of lawyer-client conversations of prisoners in custody, secret military commissions with the power of life and death over all noncitizens in deliberately hasty proceedings under rules made up by the secretary of defense, military detention of American citizens without access to counsel or a judicial hearing, expanded surveillance powers -- will come before the Court . And if history is any guide, these measures will almost always be upheld. The Supreme Court's record in defending our liberties at a time of foreign threat is not reassuring. If anything, the Court as a body and some justices individually have made things worse. From the Alien and Sedition Acts during the Napoleonic Wars through the Court-sanctioned punishment of dissent in World War I and the Palmer Raids in 1919-20, through World War 11, the internment of the Japanese Americans (even after any danger of a West Coast invasion -- the ostensible justification -- was past), and the trial of General Yamashita, and on through the McCarthy years, the Court has rarely prevented or even criticized flagrant violations of fundamental rights.

*endnotes were omitted

Copyright © 2002 Herman Schwartz

About this edition

• Publisher: Hill and Wang
• Publication date: 2003
• ISBN 10: 0809080745
• ISBN 13: 9780809080748
• Binding: Paperback
• Edition number: 1
• Number of pages: 288
• Editor: Schwartz Herman