Looking Back at The Past Supreme Court Term:
The Rehnquist Revolution Comes to a Standstill, For Now

By EDWARD LAZARUS

Thursday, Jul. 08, 2004

In early July, at the end of every Supreme Court term, it is customary to look back and attempt some meaningful judgments about the opinions issued over the previous nine months.

This is in many respects an artificial enterprise. Trends at the Court do not organize themselves neatly into the Court's yearly calendar. They run over the course of many terms and, especially in the absence of any turnover of Justices on the Court, they do not start or stop abruptly.

That said, the end of this term does seem an appropriate moment to venture one very broad generalization: The Rehnquist Revolution - a decisive shift in constitutional law that has progressed for 17 years - is now in a state of equilibrium. That is, it is neither advancing nor retreating in any great measure. And this is likely to remain the state of affairs until new blood comes to the Court - ending the current, remarkable nine years of unchanging membership.

The Rehnquist Agenda: Partially Realized, But Currently Stalled

When William Rehnquist assumed the Chief Justiceship in 1986, the conservative judicial agenda was fairly well set. In broad terms, the conservatives wanted to undo both the substance and the analytic methodology of the Warren era.

In application, this meant targeting liberal precedents in a host of fields. The conservative wish list looked roughly like this:

Rollback or overturn Roe v. Wade.

Rollback or declare unconstitutional affirmative action.

Undercut or overturn Miranda.

Relax other constitutional limitations on police investigations.

Lower the wall separating Church and State.

Increase states' rights while cutting back on federal power.

Relax judicial oversight of the death penalty.

Cut back on the scope of civil rights laws.

Revitalize the "takings" clause as a way of protecting private property.

Sharply limit the use of Due Process to discover "new" constitutional rights.

As is evident just from reading this list, the Rehnquist Court has made substantial progress towards achieving all these objectives.

But, if the last few terms are any indication, the Rehnquist Revolution has finally exhausted itself - at least while the current set of justices presides.

Moderate Justices O'Connor and Kennedy Are Unlikely to Go Further Than They Have

Simply put, the Rehnquist Revolution has become a victim of its own success and of the relative moderation of the two swing vote justices, Sandra Day O'Connor and Anthony Kennedy, whose votes are necessary to achieve any major shift in the law.

If this term and the several preceding are any indication, O'Connor and Kennedy have gone as far as they will go - and, thus, we are likely to see fewer and fewer major innovations until new appointments eventually change the Court's internal political dynamic.

Indeed, the engine of the Rehnquist Revolution has been sputtering for some time now. As far back as 1992, it became clear that the conservatives would not fully achieve their most important objective: the overturning of Roe v. Wade. Although Rehnquist and his fellow conservatives opened the door to substantially increased state regulation of a woman's constitutional right to have an abortion, in Planned Parenthood v. Casey, O'Connor and Kennedy made clear that there would be no fifth vote on the current Court to move from cutting back on Roe to doing away with that decision entirely.

Over the intervening twelve years, in field after field, the Rehnquist Revolution has followed a similar pattern. On every front, conservatives have made very substantial progress towards their jurisprudential goals. But in the end, the moderating instincts of either O'Connor or Kennedy have kept their more revolutionary brethren from capturing the field entirely.

Take the field of criminal procedure. Over the past 15 years, the Court carved large holes in the Miranda doctrine. As a general rule, Miranda prohibits prosecutors from using evidence obtained through interrogations, when police have not given suspects the famous warning about the right to remain silent and to consult with a lawyer. Over time, however, the Court created a host of exceptions to this general rule - so many, in fact, that many observers considered it just a matter of time before the conservatives succeeded in doing away with Miranda completely.

But, here, as with Roe v. Wade, O'Connor and Kennedy disappointed more ardent conservatives. They balked at actually overturning Miranda and, two terms ago, the Court ended up actually reaffirming Miranda, albeit in its already diminished form.

Affirmative action survived, albeit in similar minimalist fashion. In case after case, the conservatives whittled away at the permissible scope of racial preferences. For example, they succeeded in changing the standard of review applied to affirmative action programs from "intermediate scrutiny" (a modestly rigorous test) to "strict scrutiny" (an extremely stringent test).

In the end, however, as reflected in the 2003 rulings in the University of Michigan cases, O'Connor and Kennedy stopped short of totally outlawing such racial preferences. And so they remain, narrow and shallow, a token remedy for slavery's lasting legacy.

The Term That Just Ended: Also a Story of the Victory of Moderation

In the term just completed, the same basic story line played out in several other areas of law.

For fifteen years, the conservatives have made significant progress in lowering the metaphoric wall separating church and state. In particular, the Court has done away with many of the traditional limitations that - based on the First Amendment's ban on the "establishment" of religion - had precluded the government from providing funding to sectarian institutions.

This term, however, in Locke v. Davey, the watering down of the establishment clause reached its limit within this Court. In previous cases, including a school voucher decision that Rehnquist wrote two years ago, the Court had given states the okay to fund religious institutions if that funding fit naturally within the scope of a more general funding program. In other words, notwithstanding past precedents to the contrary, the Court had ruled that the establishment clause does not force states to exclude religious institutions that would otherwise be eligible for government subsidies, simply because the institutions are sectarian in nature.

The issue in Locke v. Davey was whether it was not merely permissible to fund sectarian institutions that were otherwise eligible for a general funding program (such as school vouchers), but actually constitutionally required.

Put another way, the case asked this question: Can states choose to make religious institutions ineligible for broadly available public funding programs? Or is such a choice an impermissible form of discrimination against religion?

Actually requiring government to fund religious institutions would have been a huge new step for the Court. And, once again, O'Connor and Kennedy balked. In Locke, the Court ruled that no religious subsidy was required.

This term also saw the reaching of a limit in the Court's federalism jurisprudence, where the Rehnquist Court has dramatically increased states' rights and often at the expense of federal governmental power.

In a series of recent decisions, for example, the conservatives on the Court had repeatedly rejected congressional efforts to overcome the states' constitutional immunity from lawsuits. This term, however, in Tennessee v. Lane, O'Connor switched sides and provided a fifth vote for the ruling that states could be sued under the Americans With Disabilities Act for failing to make their courthouses accessible to the disabled.

When Tennessee v. Lane is taken together with a few other cases in which the Court declined invitations to expand states' rights, it would seem that the run of new federalism landmarks may well be at or near an end.

Much the same story can be told about the death penalty. Ever since Rehnquist took over as Chief, the Court has dramatically cut back on judicial oversight of the death penalty. But then, starting a few terms ago, the pendulum began to swing back. The Court, led by O'Connor, declared unconstitutional the execution of retarded persons, and also began to re-assert its supervision over other aspects of capital sentencing.

This term solidified this recent trend. Specifically, in two cases (Banks v. Dretke and Tennard v. Dretke), the Court sharply rebuked the U.S. Court of Appeals for the Fifth Circuit -- arguably the most conservative federal appellate bench in the country -- for failing to give habeas corpus relief to two death row inmates whose prosecutions were patently flawed.

The Real Reason for the Court's Current Caution With Respect to Many Cases

Looking at the decisions, a leading constitutional law commentator, University of Chicago Professor Cass Sunstein, has noted a decided trend towards "minimalist" decision-making. That is, Sunstein notes a proliferation of very narrow, case specific rulings, rather than sweeping pronouncements by the Court.

As a descriptive matter, there is surely some truth to Sunstein's observation. Last term, the court ducked a lot of big and difficult issues -- ranging from the constitutionality of the Pledge of Allegiance, to the actual procedures to which "enemy combatants" are entitled. The Justices sent a lot of cases back to the lower courts for further analysis rather doing the analysis themselves.

But I have my doubts that this cautious approach really reflects an aversion to large judicial statements. The Court showed it is still fully capable of these - as in Blakely v. Washington, where it cast doubt on the way most states and the federal government handle criminal sentencing.

Instead, I believe that the narrow, "small-ball" style of decisionmaking reflects a political truth inside the Court. That truth is this: As a political matter, in most areas of law, the Court has already moved into the very conservative, but not radically conservative, posture that the controlling justices, O'Connor and Kennedy, favor.

No wonder, then, that the Court's decisions increasingly amount to treading water. It is not because the Court does not know how to swim. It is because O'Connor and Kennedy like the water they're in just fine, and no other group of justices has the power to change the Court's location.

And that leads me towards that very dangerous ground of prediction. I believe next term is going to look a lot like this term: Again, the Court will vacillate, in most areas of law, within a narrow range.

After that, everything will depend on who retires from the Court, and whether it is Bush or Kerry who is appointing the replacements. For that, stay tuned.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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