Tuesday, August 24, 2004
Understanding the Rehnquist Court II
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)?
I'm not sure this really gets at the phenomenon in question, which I think is indicated by all the hesitations about understanding it and the rather deus ex machina (Stevens clever leadership) 'solution.'
I think a better specification would be quite different. First, I think you're blinded by your political categories -- "liberals" are not found in nature, either. One of the things that I think is most remarkable about the 1990s (it actually goes back to the 1980s) is the transformation of "liberalism" from 'liberalism' to 'communitarianism.' (To put it in crude terms, Rawls is out, Sandel is in). The jurisprudential variant of this communitarianism involves a near-total inversion of the values that used to define 'liberalism': individual rights are out and a sort of Rousseauist community unity is in; judicial resolution is out and deference to legislatures (representing the community will) is in; and values-oriented jurisprudence is out and (following -- or perhaps twisting beyond recognition -- an argument that I believe you made elsewhere) a professional managerialism is in. This latter element manifests itself not just (or even most importantly) in Breyer's crude elitist instrumentalism, but more importantly in attention to judicial 'craft' (which is the professional managerial skill of lawyers). Thus the oft-noted phenomena that Ginsburg was an expert in civil procedure and keeps Hart and Weschler on her desk and refers to it constantly.
When the jurisprudential variant of this substitution of 'communitarianism' for the older version of 'liberalism' are then located on the Court's current field, I think a quite different picture from that of the Court being split 'down the middle' between 'conservatives' and 'liberals' emerges: Clinton's communitarian appointments (Ginzburg, Breyer) are actually quite similar to the 'old conservatives' (i.e., those who take Harlan as their model -- Souter, O'Connor, Kennedy). Stevens has never been a 'liberal' but has always been a centrist (remember the angst when he replaced the 'liberal' Douglas). Thus there are generally six votes for a continuation (or minor modification at the edges) of current doctrinal structures and thus the Rehnquist Court is a Court of "this far and no further." The three 'late conservatives' (i.e., those who follow Bork as their model -- Rehnquist, Scalia and Thomas) are actually isolated despite the forty year campaign of Republicans to overturn the Warren Court (and the forty year fear mongering campaign of Democrats that "all our rights are being taken away"). Scalia and Thomas are increasingly bitter over this fate, as is reflected in the tone of their opinions and perhaps even in Scalia's apparent attempt to do Constitutional Law 'outside the Court' (so to speak) by offering resolutions of cases before they come to the Court. Rehnquist, interestingly, seems to have shifted from a 'late conservative' to an 'early conservative' posture, probably because of his elevation to the Chief's seat.
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