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HAIL (AND FAREWELL?) TO THE CHIEF:
A Review of an Anthology Giving An Early Retrospective on the Rehnquist Court


By Roger CLEGG


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Friday, May 31, 2002

The Rehnquist Court: A Retrospective, ed. Martin H. Belsky (Oxford University Press 2002)

It is widely rumored that the retirement of Chief Justice William Rehnquist is imminent. As a result, The Rehnquist Court: A Retrospective - a collection of analyses by a wide range of lawyers, judges, and other Court-watchers - has the cardinal virtue of timeliness.

It has, in addition, both the virtues and vices of any multi-author creation, with essays ranging from the very good, to the bad, to the ugly. It is perhaps too determinedly "big picture," providing no analysis of statutory or regulatory jurisprudence, but only of constitutional decisions and decisionmaking. Yet it is a useful starting point for those looking to evaluate the controversial Chief Justice's legacy, as his tenure draws to a close.

In 1993, the late Professor Bernard Schwartz, who taught at the University of Tulsa College of Law, developed a decade-long strategy for holding major conferences there on the modern Supreme Court. Accordingly, the first conference reviewed the Warren Court and the second, the Burger Court, and the papers presented there were collected in two respective volumes edited by Schwartz.

But then, after he had begun planning the third conference on the first fifteen years of the Rehnquist Court, Professor Schwartz died. Nonetheless, the conference was held in September 1998, and Schwartz's colleague, Professor Martin H. Belsky, has collected the papers in the present volume. (The papers were edited, according to the preface, before the Court's controversial 2000 decision in Bush v. Gore and, of course, before the terrorist attacks of last September 11.)

The book is divided into fifteen chapters, including Professor Belsky's introduction. Part I, "The Constitutional Corpus," includes chapters on free expression, free speech in cyberspace, affirmative action, the religion clauses, criminal procedure, and economic rights.

Part II, "A Broader Perspective," evaluates the Rehnquist Court from the perspectives of, respectively, history, a journalist, the legal profession, a constitutional law professor, a state supreme court justice, a Canadian supreme court justice, a court of appeals judge, and two more law-school professors.

All in all, it's something of an all-star cast - with contributions by Burt Neuborne, J. Harvie Wilkinson III, John Noonan, Yale Kamisar, Lino Graglia, David Savage, Jerome Shestack, and many others.

This Multi-Author Work Offers An Uneven Smorgasbord

Like any smorgasbord, this one has something to delight every palate and something (often the same dish) to wrinkle everyone's nose. But it's easy for the reader to find out what he wants, even though there isn't an index, because the chapter titles and subheadings are straightforward enough.

To return to the food metaphor, is there a theme to this dog's breakfast of a pudding? Well, yes, obviously: the proclaimed theme is the Rehnquist Court--and this makes the whole at least somewhat greater than the sum of its uneven parts.

Getting a wide variety of views of the many different facets of the Rehnquist Court and its jurisprudence is interesting, and certainly each author has something to say. It is somewhat arbitrary to bracket eras of the High Court by the terms of the chief justices--there are, after all, eight other justices, and the makeup of the Court can change dramatically, even under one chief, as they come and go. Nevertheless, that convention has its validity and uses, too.

It's really not possible to review all fifteen chapters. So instead I'll give a quick thumbs-up or thumbs-down and a brief explanation for fourteen of them, before discussing one--my favorite--in a little more depth.

Martin H. Belsky--thumbs up. This introduction gives the background of the conference and an overview of all the papers, which is useful for the reader who may not want to read every chapter.

Burt Neuborne--thumbs up. A good, straightforward--albeit with left wing spin--summary of the Court's free expression decisions that includes as an appendix a useful term-by-term list of the Court's significant First Amendment cases.

Bruce J. Ennis--thumbs up. A thoughtful discussion of "The First Amendment in Cyberspace" and how the Court's penchant for "ad hoc balancing" is superseding "categorical analysis" here.

J. Harvie Wilkinson--thumbs up. My favorite. (See the more extended discussion below.)

John T. Noonan, Jr.--thumbs down. While not without its insights (e.g., "For any advocate of a religious cause the [Rehnquist Court's] message is obvious: appeal to free speech, not free exercise."), this chapter's claim that the Court is "the settled opponent" of religious liberty is harsh and unpersuasive.

Yale Kamisar--thumbs down. Tendentious and tedious in its bashing of the Court's willingness to limit the excesses of the Warren Court in criminal procedure.

Lino Graglia--thumbs up. An entertaining if discursive discussion of recent Takings Clause developments, marred only by a bizarre assumption that it is somehow as "activist" for a Court to see something in the Constitution that is there as it is to put something there that is not.

Lawrence Friedman--thumbs down. Not the "historical account" promised, but a rather predictable recitation of conventional wisdom.

Jerome J. Shestack--thumbs down. All you'd expect from a past president of the ABA: liberal and pompous.

Erwin Chemerinksy--thumbs down. Here's the professor's indictment: "During the eleven-year history of the Rehnquist Court, not one additional fundamental right has been recognized." If you think the Court's job is to look at a short, 200-year-old document and find at least one new, heretofore undiscovered fundamental right each and every decade, then this chapter's for you.

Marie L. Garibaldi--thumbs up. I'm not exactly sure what the point of this chapter was, but it does contain the book's single most well-wrought sentence: "I found it impossible to discern a unique New Jersey attitude about garbage."

Claire L'Heureux-Dubé--thumbs down. This Canadian supreme court justice wants the Court to rely more on foreign jurisprudence, when it's hard enough getting our judges to pay attention to legal texts written in their own language.

Robert H. Henry and Arthur G. LeFrancois--thumbs down. This chapter tries to weave together three disparate concerns of the late Professor Schwartz--originalism, cost-benefit analysis, and the role of Supreme Court law clerks--but the discussion ultimately fails, jointly and severally.

David J. Garrow--thumbs up. A pithy and favorable evaluation of the Chief Justice's own personal legacy to the Court, jurisprudential and administrative.

My Favorite Chapter: A Federal Appeals Judge On The Search For Equal Justice

Suffice it to say that the collection itself is worth having, even if the reader picks and chooses among the essays it contains. I'll focus for the balance of this review on my favorite chapter, the one everybody should read: "The Rehnquist Court and the Search for Equal Justice." The author is J. Harvie Wilkinson III, chief judge of the U.S. Court of Appeals for the Fourth Circuit.

Wilkinson has written very thoughtfully and for many years on race and the law. In many respects, his essay gives the highest marks to the Rehnquist Court of all the book's chapters. Specifically, Wilkinson praises the Court's insistence that all racial and ethnic discrimination, including so-called affirmative action, be considered presumptively unconstitutional and subjected to strict scrutiny, the Court's toughest test.

Why Judge Wilkinson Is Correct To Praise The Rehnquist Court

As the issue of race-based college admissions heads to the Court this fall, it is sobering to reflect on what is at stake and how close the outcome is likely to be. The nondiscrimination principle, warns Judge Wilkinson, "developed only through the most closely divided decisions. It occupies, therefore, a potentially transitory position in American law. It is yet uncertain whether the Rehnquist Court's triumph will be of a permanent nature or only an interlude between Courts allowing for a race-based United States."

But in a final section on "The Nondiscrimination Principle and New America," Judge Wilkinson strikes a hopeful note. He concludes that America's changing demographics "will justify the course of the Rehnquist Court in the eyes of history." This is because a "race-based legal regime has even less to commend it in a multiracial nation than in a biracial society" and, indeed, to "devote prodigious efforts to devising the correct racial categorization of American citizens is about as divisive an enterprise as it is possible to imagine."

Amen to that.


Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.

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