Understanding the Rehnquist Court II

Mark Tushnet

I argued in my previous post that one important dynamic on the Rehnquist Court was division between two groups of Republicans, or two types of conservatives. What was happening on the liberal side? Basically -- with one interesting exception -- a high degree of unity (not always -- see Atwater v. Lago Vista -- but quite high nonetheless). And how did that happen (since unity among judicial liberals is hardly a fact of nature)?

The answer is, primarily, extraordinary leadership on the liberal side. We've known for a long time that William Brennan provided that leadership from Burger's appointment (and even before) until Brennan's retirement. Brennan was able to provide that leadership because of his personality and his strategic sense. Since Brennan's retirement, the leadership on the liberal side has come from, surprisingly, John Paul Stevens. It's surprising because of Stevens's well-known idiosyncracies about constitutional doctrine. And, I confess, it's not clear to me how Stevens has managed to pull it off; I think that Stevens's role on the Rehnquist Court is probably the largest untold story about the Court in the 1990s. To the extent I can figure it out, one important component is Stevens's facility at opinion assignment. Interestingly, he's been able to do that in important part because of Rehnquist's insistence that each justice end up with an equal number of majority opinions at the end of each Term. When the Court's unanimous, or nearly so, Rehnquist will assign the "dogs" to some of the liberals. When the liberals manage to get a majority, Stevens can "use up" an opinion assignment, thereby restricting Rehnquist's options as the Term goes on. (One effect, for example, is that Rehnquist is forced into giving more assignments to Scalia and Thomas than he would [probably] like -- because those two justices are more likely to draft hard-edged conservative opinions that will lead O'Connor or Kennedy to have second thoughts.) All this is pretty speculative, although I bet that a quantitative political scientist could get us closer to understanding the post-Brennan opinion assignment process.

I mentioned at the outset one interesting exception to unity on the liberal side. The exception, of course, is Justice Breyer. He is basically a technocratic statist, who most resembles Byron White -- and, in political terms, is the inheritor of the New Frontier vision of John F. Kennedy, coupled with the impulse among twentieth century Progressives to technocracy (an impulse that most self-described "progressives" today don't feel). These aspects of Breyer's jurisprudence come out most clearly in cases involving technological innovation, which today means, mostly, First Amendment cases. In those cases Breyer is pretty strongly pro-regulatory. (His statist nationalism also underlies his position in the Court's federalism cases.)

I have to say that I have a weaker feel for this analysis than I do for my analysis of the conservatives. Next post: What about leadership -- or the absence thereof -- on the conservative side?
Posted 9:30 PM by Mark Tushnet [link]