REHNQUIST COURT (Update)

The Supreme Court moved in sharply conservative directions after william h. rehnquist was elevated from associate to chief justice, replacing retiring Chief Justice warren e. burger, and an even more conservative Justice, antonin scalia, filled Rehnquist's seat in 1986. But its evolving doctrines came in fits and spurts as the Court's center further shifted with subsequent changes in the composition of the high bench.

The balance on the Court changed dramatically in 1988 with President ronald reagan's last appointee, Justice anthony m. kennedy, replacing Justice lewis f. powell, jr. Powell had been the pivotal vote on major controversies over abortion, affirmative action, and the rights of lesbian and gay citizens. The balance, then, again shifted in 1990 and 1991 with the arrival of President george h. w. bush's two appointees, Justices david h. souter and clarence thomas. They replaced the two most liberal justices, respectively, william j. brennan, jr. , and thurgood marshall. After his initial two terms, however, Souter broke ranks, and on the most divisive issues he now generally votes with Justice john paul stevens and President william j. clinton's two appointees, ruth bader ginsburg and stephen g. breyer. As a result, in the 1990s the Rehnquist Court often split 5–4 on its most controversial rulings. Kennedy and Justice sandra day o'connor cast the controlling votes, forcing more conservative Justices to accommodate their views of the Court's role and of constitutional interpretation.

The changing course of the Rehnquist Court is registered in its treatment of liberal precedent s laid down by the burger court and the warren court. Initially, a majority agreed with the Chief Justice's long-standing view of precedent; namely, that prior rulings dealing with civil rights and civil liberties decided by bare majorities always should be open for reconsideration and reversal. In the first four terms of the Rehnquist Court eleven precedents were overruled along with twelve more in the 1990 and 1991 terms. Yet, overturning so many precedents in such a short period of time created a controversy that came to a head when the Justices considered whether to overrule the watershed abortion decision, roe v. wade (1973), in planned parenthood v. casey (1992). In a bitterly divided 5–4 decision in Casey, the Court's plurality and joint opinion issued by Kennedy, O'Connor, and Souter upheld "the essence of Roe " partly on the institutional ground that its reversal would hurt the Court's prestige and legitimacy. The battle over that decision apparently curbed the Court's appetite for reaching out to overturn liberal precedents. Since the 1993 term only one or two precedents have been annually overruled, which is in line with the historical average.

Rehnquist, nonetheless, commands a majority for many of the positions he staked out as a dissenting Justice during the years of the Burger Court. Notably, the Court has moved in more conservative directions on issues involving the rights of the criminally accused, capital punishment, federalism, and affirmative action. Kennedy, O'Connor, Scalia, and Thomas also share the Chief Justice's reluctance to approve lower federal court orders to achieve school desegregation, to expand substantive due process, or to recognize unenumerated fundamental rights.

The trend toward contracting the rights of the criminally accused that emerged during the Burger Court not merely continued but became more far-reaching, as the Rehnquist Court reversed decisions of the Burger Court deemed too cumbersome and unworkable for law enforcement. In California v. Acevedo (1991), for example, two precedents were overruled in holding that police may search any container in any part of an automobile stopped on probable cause. In general, the scope of the fourth amendment prohibition of unreasonable searches and seizures has been sharply restricted. The doctrine that the Fourth Amendment protects "reasonable expectations of privacy," proclaimed in katz v. united states (1967), became in the hands of the Rehnquist Court the touchstone for limiting the Fourth Amendment's application to warrantless searches and seizures, as well as for upholding random drug testing of students and employees. While the Warren Court's controversial ruling in mapp v. ohio (1961) extending the exclusionary rule to the states was not overruled, the "good faith" exception to it created by the Burger Court was extended to include police reliance on mistaken computer records of outstanding arrest warrants in Arizona v. Evans (1995). Likewise, the landmark ruling in miranda v. arizona (1966) on the Fifth Amendment prohibition of compulsory self-incrimination has not been overruled, but the Court has approved numerous exceptions to the application of Miranda. In addition, the Rehnquist Court made it easier both to impose capital punishment and to expedite the execution of those on death row.

For the first time since the 1937 constitutional crisis over the invalidation of new deal legislation, a bare majority of the Rehnquist Court limited Congress's power under the commerce clause. In a series of rulings, including new york v. united states (1992), united states v. lÓpez (1995), Seminole Tribe of Florida v. Florida (1996), Printz v. United States (1997), and Mack v. United States (1997), Congress was held to have exceeded its inherent powers under the commerce clause and to infringe on principles of federalism. Nevertheless, the tenth amendment has not been resurrected as the strong barrier to congressional legislation that it once was. The Court declined invitations to overrule garcia v. san antonio metropolitan transit authority (1985), which reversed an opinion written by Rehnquist for a bare majority in national league of cities v. usery (1976) asserting the Tenth Amendment was a limitation on Congress. However, in Printz and New York, the Court held that Congress violated the Tenth Amendment when it sought to "commandeer" state legislatures or administrative offices to carry out federal programs. In other respects, too, the Rehnquist Court's lack of deference to Congress is striking. In City of Boerne v. Flores (1997), the Court struck down the religious freedom restoration act as exceeding Congress's enforcement power under the fourteenth amendment, section 5. Congress had sought to reestablish the standard set forth in sherbert v. verner (1963), effectively creating exceptions for religious minorities from otherwise generally applicable laws, that was jettisoned by the Rehnquist Court in employment division, department of human resources of oregon v. smith (1990). In City of Boerne, the Justices also stressed that the Court alone defines the scope of constitutional rights. Furthermore, in Alden v. Maine (1999), the Court held that the Constitution's federal "structure and history" not only shields states from being sued in federal courts but also makes them immune from lawsuits filed in state courts that seek to enforce federal rights against them.

Somewhat ironically, since a majority of the Rehnquist Court was appointed by Republican Presidents who embraced a strong view of presidential powers, the Court has not been deferential to claims of presidential authority, except with respect to the executive's ability to reinterpret statutory authorizations as in rust v. sullivan (1991). Morrison v. Olson (1988) upheld the appointment of independent counsel s to investigate the President and his subordinates. clinton v. jones (1997) unanimously held that Presidents may be subject to civil lawsuits while in office. Clinton v. City of New York (1998) struck down Congress's grant of the line-item veto to the President.

As indicated by its reversal of precedents and rejection of assertions of congressional and presidential power, the Rehnquist Court is conservative but not restrained. The Court's judicial activism is evident as well in its rulings invalidating state, local, and federal affirmative action programs, from richmond (city of) v. j. a. croson co. (1989) to adarand constructors, inc. v. peÑa (1995), which overturned metro broadcasting, inc. v. fcc (1990). So too, in a line of 5–4 rulings following shaw v. reno (1993), the Court struck down the creation of majority-minority electoral districts under the voting rights act of 1965. In these and other areas, the Rehnquist Court thwarted the democratic process and the authority of elected representatives at the national, state, and local levels.

Another major jurisprudential theme of the Rehnquist Court is its embrace of the liberal principle of governmental neutrality toward race, gender, and political expression. That principle of governmental nondiscrimination and freedom of expression is interwoven in rulings on the first amendment guarantees of freedom of speech and freedom of the press, on the one hand, and the fourteenth amendment guarantee of equal protection of the laws, on the other.

The Rehnquist Court's commitment to the principle of equal treatment and nondiscrimination in enforcing the First Amendment is underlined by its invalidation of numerous laws aimed at punishing particular forms of speech, ranging from those outlawing flag desecration and hate speech, to bans on "patently offensive" sex-related communications on cable television and on the internet. At the same time, greater protection for commercial speech was given in 44 Liquormart, Inc. v. Rhode Island (1996).

In invalidating affirmative action programs, a bare majority of the Court emphasized the idea that "the Constitution is colorblind" and applied the strict scrutiny test to judge race-conscious government action. The Court, over Rehnquist's objections, not only repeatedly rejected the use of racially based peremptory challenges in jury selection but also extended the ruling of batson v. kentucky (1986) to sex-based peremptory challenges in J. E. B. v. Alabama (1994). In addition, a majority of the Court appears to agree that strict scrutiny should be reserved solely for racial discrimination cases. The majority has no interest in expanding the categories of suspect and "quasi-suspect" nonracial classifications, or of fundamental rights and interests, to which the Burger Court suggested that the strict scrutiny test or an intermediate test of heightened scrutiny might apply. When finding impermissible sex discrimination in united states v. virginia (1996), for example, a majority could not be mustered for explicitly declaring gender, like race, to be a suspect category subject to the strict scrutiny test. Besides reserving strict scrutiny for cases of racial discrimination, the Rehnquist Court invalidated some forms of nonracial discrimination simply on the basis of the rational basis test. Thus, the Court found no rational basis for laws discriminating against people with mental illness in Heller v. Doe (1993) or against gays and lesbians in romer v. evans (1996).

In all these areas, the Rehnquist Court has been activist, not passive, in asserting its power. In two respects, however, the Court has exercised self-restraint. First, as noted, the Court is decidedly reluctant to recognize unenumerated fundamental rights, as with claims to a right to die with the assistance of a physician. Second, the Court has become increasingly restrained in exercising its traditional supervisory role over lower federal and state courts, even when they render conflicting rulings. Fewer and fewer cases have been annually granted review and, consequently, the plenary docket has declined sharply. In the 1998 term, for instance, only about 80 cases were granted review out of more than 8,000 petitions for certiorari on the docket. In historical perspective, the Court had not handed down so few cases in a term since 1953. By comparison, the Burger Court faced dockets of around 5,000 cases and annually decided between 170 and 180 cases, or about three percent, whereas the Rehnquist Court hears less than one percent of its much larger docket. In sum, the Rehnquist Court is conservative and activist, but also less concerned about correcting errors in the lower courts and about ensuring the certain and stable application of the law.

David M. O'B rien
(2000)