THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE RIGHT

Vol. 14 No. 2 (February 2004)

THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE RIGHT, edited by Herman Schwartz. New York: Hill and Wang, 2003. 288 pp. $25.00 Hardcover. ISBN: 0-8090-8073-7 $14.00 Paper. ISBN: 0-8090-8074-5.

Reviewed by John Fliter, Department of Political Science, Kansas State University. Email: jfliter@ksu.edu

This book is one of several that have been published recently assessing the jurisprudence of the Supreme Court under the leadership of Chief Justice William H. Rehnquist. As the subtitle implies, the essays contained within this edited volume offer a critical review of the impact of the Rehnquist Court on civil rights and liberties, federalism, and institutional powers. The editor, Herman Schwartz, is a professor of law at American University and civil liberties activist. Most of the other 16 contributors to the volume are law professors, and a couple are former journalists.

A forward by Tom Wicker puts the Rehnquist Court in perspective by providing an historical overview of the Supreme Court and its role in American politics. In his introduction Professor Schwartz declares that Ronald Reagan’s efforts to reshape the federal courts have succeeded and the Rehnquist Court is now the most conservative Court since the 1920s. The conservative majority consisting of Chief Justice Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor have narrowed or reversed many of the gains for social justice and civil rights that have been won over the past fifty years. In some areas, however, such as women’s rights or the rights of gays and lesbians, Justices Kennedy and O’Connor have joined with the more liberal justices on the Court in expanding rights.

Missing from the "forward" or "introduction" is a discussion of judicial role orientations or an explanation of the differences between liberal judicial activism and activism on the right. As we all know, judicial activism is not the exclusive domain of liberal justices. The conservative activism of the Rehnquist Court is characterized by a desire to overturn long-standing precedents of the Warren and Burger Courts, a tendency to alter firmly established legal principles and standards, a propensity to overturn laws passed by Congress and the states that conflict with a conservative agenda, and, in the case of state sovereign immunity under the Eleventh Amendment, a willingness to create rights where none exist.

In an essay entitled "Equal Protection for One Lucky Guy," John P. McKenzie critically dismantles the Rehnquist Court’s opinion in BUSH v. GORE (2000), the decision that stopped the Florida recount and handed the presidency to George W. Bush. The title of the essay is based on a one sentence disclaimer in the opinion: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many difficulties." In this sentence the Court was saying that the decision created no precedent and applied to only one person-candidate George W. Bush. McKenzie argues that not only was this statement unprecedented but also the rationale for the opinion is contrary to the entire thrust of the Rehnquist Court’s jurisprudence on federalism. Instead of showing deference to the Florida Supreme Court decision and allowing the political process to play itself out, the Rehnquist Court fashioned an equal protection claim that sounded more like something from the Warren Court era.

The rest of the book is divided into three sections: Race and Criminal Justice, Individual Rights, and The Assault on Federal Power. Each section contains four or more essays involving various substantive rights or institutional powers. Some of the essays are more balanced in their treatment of the Court than others, but all take a critical look at the constitutional legacy of the Rehnquist Court. There are even chapters on topics that most political scientists who study constitutional law rarely cover - environmental law, antitrust law, and securities regulation.

An essay by Charles Ogletree, Jr. describes the Rehnquist Court’s significant impact on criminal justice issues. In contrast to the due process revolution of the Warren Court, the Rehnquist Court has launched its own counter revolution in criminal procedure. Most, but not all, decisions of the Court have narrowed the procedural rights of criminal defendants. Ogletree argues that Chief Justice Rehnquist has used judge-created procedural rules to limit substantive rights in three areas-searches and seizures under the Fourth Amendment, the Fifth Amendment’s protection against self-incrimination, and the Eighth Amendment’s ban on cruel and unusual punishment.

In an essay entitled, "No Rights of Prisoners," author William E. Hellerstein argues that the Rehnquist Court has had a unique two-pronged effect on prisoners’ rights-it has seriously eroded the progressive rulings of the Burger Court, and its jurisprudence has contained implied messages to the legislative and executive branches that further erosion of the rights of prisoners is acceptable. The central thrust of almost all of the Court’s decisions in this area has been to increase judicial deference to prison officials. In TURNER v. SAFELY (1987) and O’LONE v. ESTATE OF SHABAZZ (1987), the Court moved from a strict scrutiny standard to a reasonableness standard when reviewing prison regulations that restrict freedom of speech or religion. A prisoner’s right to due process has also been narrowed. Prisoners, unlike others who seek due process protections, must now plead and demonstrate that they have suffered an "atypical" and "significant" hardship. Only a couple of decisions involving the physical treatment of inmates have been favorable to prisoners.

In "Capital Punishment: Accelerating the Dance with Death," Stephen Bright concludes that states’ rights and finality, rather than the Bill of Rights and fairness, have been the driving forces behind capital punishment decisions. The Court has made it more difficult for death row inmates to seek federal court review of their convictions and has made it easier for the states to execute, regardless of whether inmates were denied competent counsel, were victims of systemic race discrimination, or are actually innocent. In one of the few victories for opponents of capital punishment, the Court in ATKINS v. VIRGINIA (2002), overturned an earlier precedent and held that the execution of the mentally disabled constitutes cruel and unusual punishment.

Norman Redlich, in an essay aptly named, "The Religion Clauses: A Study in Confusion," argues that the Rehnquist Court inherited several flexible constitutional doctrines covering free exercise and establishment clause claims but has left us with a multitude of conflicting and contradictory principles. Church-state separation has been severely weakened by countervailing doctrines of accommodation, an elusive neutrality toward religion, and the use of free speech principles to protect religious activities in public forums. For example, in ROSENBERGER v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA (1995), the Court applied public forum analysis to strike down a university regulation that denied funding to a student group for a sectarian religious publication. The decision elevated free speech rights over establishment clause concerns. As a result, the wall of separation between church and state today is more like a picket fence. Strict separationists can take some comfort, however, in the fact that the Rehnquist Court has not permitted direct aid to religious schools and it has consistently opposed state-sponsored prayer in schools. In its most significant free exercise decision, EMPLOYMENT DIVISION v. SMITH (1990), the Court rejected the compelling state interest standard in favor of what is now called the SMITH rule: if a generally applicable statute that is neutral toward religion has the incidental effect of restricting religious practices, it does not violate the free exercise clause. The test protects state and local governments at the expense of individual free exercise rights. Congress tried to reverse this decision with passage of the Religious Freedom Restoration Act (1993) but the Court struck down the law in CITY OF BOERNE v. FLORES (1997).

According to Jamin B. Raskin, freedom of speech appears to be the one area where the Rehnquist Court deserves a standing ovation for its protection of extreme or unpopular expression. Raunchy political and social satire was protected in HUSTLER MAGAZINE v. FALWELL (1988), and flag burning was held to be protected symbolic political speech in TEXAS v. JOHNSON (1989). Even conservatives like Justice Scalia have occasionally joined the Court in defending free speech. Raskin suggests that the conservative backlash to "political correctness" gave free speech a special status in conservative circles, and he contends that Scalia’s opinion in R.A.V. v. CITY OF ST. PAUL (1992), which invalidated a hate-speech ordinance, was partly influenced by conservative anti-PC sentiment. The Court also has handed down several libertarian decisions involving the Internet, often treating cyberspace as a free marketplace of ideas. But where extreme speech has won protection, Raskin argues that ordinary speech, in the context of government practices, has suffered significant defeats. For example, the Court embraced our dominant two-party system by permitting a public television station to exclude a third party candidate from a debate. The Court also upheld anti-abortion regulations, known as the abortion gag rules, which prohibited any program receiving Title X funds from counseling or advocating abortion as a method of family planning.

In a chapter on gay rights, Chai Feldblum provides a fair assessment of the Rehnquist Court’s mixed record on the rights of gays and lesbians. The decision in BOWERS v. HARDWICK (1986), which upheld Georgia’s sodomy law, was announced shortly before Rehnquist became Chief Justice. It would take almost ten years before the Court heard another case involving gay rights. In HURLEY v. IRISH-AMERICAN GAY, LESBIAN, AND BI-SEXUAL GROUP OF BOSTON (1995), the Court concluded that parade organizers had a free speech right to exclude an Irish gay group from the parade’s participants. A year later, in ROMER v. EVANS, the Court struck down a state constitutional amendment in Colorado that prohibited gays and lesbians from seeking protection from discrimination under state and local laws. That victory, however, was followed by the decision in BOY SCOUTS v. DALE (2000). The Court said that Dale, an Eagle Scout and avowed homosexual, could be excluded from the Boy Scouts on free speech and association grounds because homosexuality was incompatible with the mission of the organization. Unfortunately, the book went to press before Feldblum could include the Court’s decision in LAWRENCE v. TEXAS (2003), which overturned the Bowers precedent and has emboldened the gay and lesbian rights movement.

A woman’s right to abortion under ROE v. WADE (1973) has barely survived. Susan Estrich’s essay is effective because it focuses more on the politics of abortion rather than the many opinions handed down by the Rehnquist Court. The Court’s most significant decision, PLANNED PARENTHOOD v. CASEY (1992), discarded the ROE trimester framework and replaced it with a vague "undue burden" standard. State governments may place restrictions on abortion unless those restrictions impose an undue burden on a woman’s access to the procedure.

Herman Schwartz has a chapter entitled, "The States’ Rights Assault on Federal Authority." The Rehnquist Court has been very active in promoting a states’ rights agenda within our federal system. With the appointment of Justice Clarence Thomas in 1991, Chief Justice Rehnquist and the other conservatives now had the five votes needed to launch their assault on federal power, and the decision in NEW YORK v. UNITED STATES (1992) represented the first salvo. The Court struck down an interstate compact, enforced by federal law, that attempted to find dumping locations for radioactive waste. By a 5-4 vote in U.S. v. LOPEZ (1995), the Court struck down a federal law criminalizing the possession of a gun within a thousand feet of a school because they saw no connection between guns in schools and interstate commerce. Several other decisions limiting congressional power followed with the same 5-4 majority.

Another topic covered in the section on federal power is the rights of the disabled. Andrew Imparato argues that the Rehnquist Court has advanced a "miserly" interpretation of disability rights. The Court has consistently taken a narrow interpretation of the definition of a mental or physical disability under the Americans with Disabilities Act (1990). Using a broad interpretation of state sovereign immunity under the Eleventh Amendment, the Court also has issued several opinions limiting the ability of disabled public employees to sue state governments in either federal or state courts for damages, thus narrowing the scope of their civil rights.

Rounding out this section is an essay by Eleanor Fox on antitrust litigation and corporate power, and the book ends with an essay by Lawrence E. Mitchell on how the Rehnquist Court has handled securities regulation. These essays are fine although ending the book with a chapter on securities law was a bit unsatisfying. I was hoping to find a concluding chapter with a "what is to be done" theme or "there is light at the end of the tunnel" message. Perhaps it would be too difficult to write a chapter like that given the current balance of power within government.

Because of the breadth of the topics covered, this volume will make a good supplement to a course on constitutional law or a more specialized course on the Supreme Court or judicial policymaking. The book succeeds at what it attempts to do - provide a doctrinal summary and critique of the Rehnquist Court’s jurisprudence. Political scientists will not find much discussion of strategic interaction among the justices or institutional influences on decision making. Still, the book has much to offer. For citizens, students, and scholars concerned about the Rehnquist Court’s attack on federal power, the social programs of the New Deal, and the general assault on civil rights and liberties, this book is essential reading.

CASE REFERENCES:

ATKINS v. VIRGINIA, 122 S.Ct 2242 (2002).

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BOY SCOUTS v. DALE, 530 US 640 (2000).

BUSH v. GORE, 531 U.S. 98 (2000).

CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).

EMPLOYMENT DIVISION OF OREGON v. SMITH, 494 U.S. 872 (1990).

HURLEY v. IRISH-AMERICAN GAY, LESBIAN, AND BI-SEXUAL GROUP OF BOSTON, 515 U.S. 557 (1995).

HUSTLER MAGAZINE v. FALWELL, 485 U.S. 46 (1988).

LAWRENCE v. TEXAS, 123 S. Ct. 2472 (2003)

NEW YORK v. U.S., 505 U.S. 144 (1992).

O’LONE v. ESTATE OF SHABAZZ, 482 U.S. 342 (1987).

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).

ROE v. WADE, 410 US 113 (1973)

ROMER v. EVANS, 517 US 620 (1996).

ROSENBERGER v. RECTOR AND VISITORS OF UNV. OF VIRGINIA, 515 U.S. 819 (1995).

TEXAS v. JOHNSON, 491 U.S. 397 (1989).

TURNER v. SAFELY, 482 U.S. 78 (1987).

U.S. v. LOPEZ, 514 U.S. 549 (1995).

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