The Rehnquist Court and the Constitution

Federalism as Docket Control

The Constitutional Structure and the Jurisprudence of Justice Scalia

by Neal Devins, College of William and Mary Linking the Warren Court's school desegregation decisions to more recent Rehnquist Court actions limiting congressional power helps us see clearly how social and political forces shape Supreme Court behavior. This article argues, contrary to common impression, that interest group litigation strategy was relatively unimportant to both the Warren Court's decision in Brown v. Board of Education of Topeka, Kansas (1954) and to the Rehnquist Court's decision to revitalize federalism in United States v. Lopez (1995). Social and political forces are crucial factors in both Brown and in the initiation of a federalism revival. Moreover, majoritarian pressures also influenced the Warren Court's avoidance of school desegregation after Brown and the Rehnquist Court's continued enhancement of state power at federal expense.

List of tables and figures Preface 1. Precedent and the Court 2. Measuring precedential behavior 3. Precedential behavior from the beginning through the Chase Court 4. Precedential behavior bridging the 19th and 20th centuries 5. Precedential behavior in the Hughes, Stone, and Vinson courts 6. Precedential behavior in the Warren court 7. Precedential behavior in the Burger Court 8. Precedential behavior in the Rehnquist court 9. The Supreme court and state decisions 10. Conclusions List of references Case index Subject/name index.

Progressive Political Theory and Separation of Powers Law on the Burger and Rehnquist Courts

Reviving Tocqueville's America: The Supreme Court's New Jurisprudence of Social Discovery

William Rehnquist's tenure as Chief Justice of the US Supreme Court (1986-2005) brought a new approach to constitutional precedent and its reversal. While prior to the Rehnquist Court the reasons for constitutional precedent were done on an ad hoc or one-by-one basis, the Court in Payne v. Tennessee began to articulate a theory of precedent reversal. During the Rehnquist Court various decisions on race, abortion, and criminal due process began to articulate and develop a theory of constitutional precedent reversal and explicitly describe and employ it in its decision making.

Getting off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-clever Congress Could Provoke it to do So

This study examines the collective voting behavior of the United States Supreme Court in civil rights and liberties decisions for the 1986-87 through the 1991-92 terms to determine if the Court has become signifi cantly more conservative and, if changes have occurred, to determine the reasons for these changes. Despite the efforts of Presidents Ronald Reagan and George Bush to pack the Court with judicial conservatives, the Re hnquist Court during this period was more liberal in its voting behavior than the Burger Court was in its last decade. Membership change, changes in the voting behavior of continuing members of the Court, and issue change all appear to have influenced the collective voting of the Rehnquist Court, with the result that the Court has not been as conservative as liber als had feared and conservatives had anticipated.

The United States has a distinctive dualist government system whereby the elected government must share its responsibilities with parties that have no mandate from the people. It is seen as a good feature of the American system that the party in power cannot always prevent others from securing policies it may disapprove. The Supreme Court is said to be a co-equal branch of government, one institutional mechanism by means of which counter-majoritarian, dualist principles are actualized. This kind of leadership can be seen to be desirable between 1955-1986 when the Supreme Court, under Chief Justices Earl Warren and Warren Burger used judicial authority to expand the protection offered to individuals and groups by the Bill of Rights. For example, it redefined the separation of Church and State doctrine to eliminate prayer from public schools, recognized privacy as a right to free sexuality from the shackles of religious morality and to forbid state governments from preventing pregnant women from securing abortions. This book reflects the growing disenchantment within the US with this dualist paradigm. Because of the influence Republican Presidents have enjoyed over the appointment of federal judges, the resurgence of monist ideas in the US is now influential within the federal judiciary itself. Many US judges reject the dualist approach, and advocate a return to a vision of how their constitutional system should function that is focused on the need to allow those who win elections to govern.

In light of the Rehnquist Court's misuse of stare decisis, and the Court's repeated admonitions that stare decisis is a doctrine of policy, not a command, this Article suggests the abrogation of stare decisis from the Supreme Court's analysis of constitutional issues. Policies are designed to foster beneficial outcomes. When stare decisis is viewed in the context of relevant case law, particularly Casey and Dickerson, it is apparent that this haphazard and consequentialist application of stare decisis is not a benefit, but a detriment. Although abandoning stare decisis has consequences, those consequences are administrative and have no impact on the Constitution. In the end, stare decisis is merely a tool used to reach a preordained outcome based on a blending of the merits of a case and public pressure. This pragmatic approach is illegitimate and an abdication of the Court's constitutional duty to say what the law is. The Court damages its reputation in an attempt to mask its primary responsibility. This policy should end. Pragmatism has no place in the Supreme Court and its application in the realm of stare decisis is unwarranted and unacceptable. In the end, it is pragmatism, not constitutional adjudication, that sacrifices the Court's legitimacy.

Constitutional scholars Christopher P. Banks and John C. Blakeman offer the most current and the first book-length study of the U.S. Supreme Court’s “new federalism” begun by the Rehnquist Court and now flourishing under Chief Justice John Roberts. Using descriptive and empirical methods in political science and legal scholarship, and informed by diverse approaches to judicial ideology, from historical to new institutionalist, they investigate how the U.S. Supreme Court rulings have shaped the political principle of federalism. While the Rehnquist Court reinvorgorated new federalism by protecting state sovereignty and set new constitutional limits on federal power, Banks and Blakeman show that in the Roberts Court new federalism continues to evolve in a docket increasingly attentive to statutory construction, preemption, and business litigation. In addition, they analyze areas of federalism not normally studied by scholars such as religious liberty and foreign affairs.

This chapter investigates collegiality’s effects on judicial decision-making at the top of the judicial hierarchy—the U.S. Supreme Court. It combines historical and contemporary examples of the importance of collegiality on the high court, unique interview evidence from former U.S. Supreme Court clerks, and a statistical model of Supreme Court cases from 1955 to 2009 to understand how social interactions among the justices explain ebbs and flows in the Court’s level of consensual decision-making over time. This multimethod approach reveals that Supreme Court justices become more likely to agree with one another the longer they serve together. Given the salient and controversial legal issues that come before the justices and an institutional context that makes the Court a challenging venue to uncover the effects of collegiality, the results indicate that interpersonal relationships affect legal outcomes at the highest court in the land.

Where Was Everyone? The Fatal Siloing of Abortion Advocacy Meaghan Winter (bio) Click for larger view View full resolution On December 13, 2021, activists with ShutDownDC held a candlelight vigil to draw attention to the Supreme Court's attack on abortion rights and mark the fiftieth anniversary of Roe v. Wade. (Alex Wong/Getty Images) [End Page 100] I briefly dated a man who told me that he thought abortion should be legal but “didn’t think it should be used as birth control” and later, with no sense of irony, argued with me and then became so angry that I was frightened when I insisted that we use a condom. I bring this up for a couple of reasons. First, public writing about abortion is usually either personal and confessional or, more often, legalistic, political, and abstracted from what abortion is really about—people’s bodies, the most private aspects of their lives, and the bargains, dilemmas, and battles, small and large, that cisgender women face as a matter of course. Second, abortion is usually framed as a women’s issue, and it does, of course, foremost affect women. But straight men of my generation have also built their lives—lives often defined by enormous freedoms—on access to contraception and abortion. Those of us who came of age after Roe v. Wade have rarely had to reflect on how legal abortion has shaped our most basic assumptions about our lives. If you’ve grown up in a country with legal abortion, and particularly if you’re a straight man, I ask that you pause and imagine what your private life would have been like if had you faced the real possibility of creating a pregnancy that couldn’t be terminated every time you had sex. Consider everything that makes up your life—degrees or jobs, yes, but also your friendships, marriages, turns in the road, children born because they were wanted, whatever you value—and appreciate how much of it was made possible by living in a society where abortion was legal and often presumed accessible. The right to have an abortion is in peril. This spring, the Supreme Court will hand down its decision in Dobbs v. Jackson, the most pivotal abortion case in fifty years. Under consideration is Mississippi’s ban on abortions after fifteen weeks, which the state legislature passed in 2018. According to the central holding of Roe, all pre-viability bans are unconstitutional, which includes a fifteen-week ban. The only remaining abortion clinic in Mississippi, Jackson Women’s Health, sued the state, asking courts to block the law. A district court and then the U.S. Court of Appeals for the Fifth Circuit [End Page 101] (which is infamously conservative) sided with the clinic. The state appealed, and the Supreme Court agreed to hear arguments. Dobbs should be an open-and-shut case, and before 2020 it would have been. The only way for the Court to allow Mississippi its fifteen-week ban is to defy decades of precedent and gut the core of Roe. The mere fact that the Supreme Court decided to hear Dobbs is an ominous sign. Usually, the Court will take up a case when the lower federal courts disagree over whether a law is constitutional. In this case, the federal courts agree; they have consistently squashed total pre-viability bans because fifty years of precedent clearly prohibits them. For decades, the Court hasn’t bothered to take up abortion cases that obviously defy Roe. What has changed is the political makeup of the Court, particularly following Trump’s appointment of Amy Coney Barrett. Her nomination, like those of Neil Gorsuch and Brett Kavanaugh before her, was not an accident of history. The Trump administration was able to remake the judiciary for at least a generation, installing an unprecedented number of federal judges and three Supreme Court justices, because leaders of the conservative movement have spent forty years and millions of dollars to incubate a legal establishment that would shrink the power of the federal government, give more leeway to states and corporations, and prioritize conservative social views and textual interpretations of the Constitution. One powerful group, the...

That Eminent Tribunal: Judicial Supremacy and the Constitution. Edited by Christopher Wolfe. Princeton: Princeton University Press, 2004. 256 p. $55.00 cloth, $19.95 paper.“Constitutional law professors have been very upset lately with the U.S. Supreme Court” (p. 181). So begins Keith E. Whittington's contribution to this collection of 11 essays on the subject of, in the words of the subtitle, “judicial supremacy and the Constitution.” Many in the unhappy chorus mentioned by Whittington are mainstream legal academicians who decry the conservative judicial activism sometimes practiced by the Rehnquist Court; they long for a robust activism in defense of liberal political values that characterized Warren and some Burger Era rulings. But the contributors to this book are not members of that chorus. Instead, most question or condemn the liberal activism preferred by the legal mainstream, while a few reject both styles of activism and hanker for a modest judicial role characterized by editor Christopher Wolfe as “traditional judicial review” (p. 202).