an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Previously I argued (a) that the most important dynamic on the Rehnquist Court was a division within the "conservative" or Republican ranks, and (b) that liberals were in the main able to avoid division because of the leadership of Justices Brennan and Stevens. Those points immediately raise an additional question: Why weren't the conservatives able to overcome their divisions by some similar acts of leadership?
There are three candidates for leaders on the conservative side. Rehnquist himself seems to have devoted his energies to leading the Court, not leading the conservatives. One reason is the almost audible sigh of relief you could hear from within the Court when the inept Warren Burger departed. Burger simply had been unable to administer the Court's work effectively. Rehnquist pretty clearly decided that he had to spend his energies getting things done -- which endeared him to his colleagues. (Brennan and Marshall were effusive in their praise of Rehnquist as a Chief Justice, Brennan even ranking him higher than Earl Warren among the Chiefs with whom he had served.) Then, as the years passed, Rehnquist simply got tired (and frail).
Thomas was damaged within the Court by his confirmation fight, which reinforced his tendency to isolate himself, as is illustrated by the limited number of hours he spends at the Court. In addition, his positions on constitutional law are "extreme" (by which I mean only that they are quite distant from those of the traditional Republicans who would have to be led into unity) and, perhaps more important in this context, inflexible. Still, it is interesting to speculate about what Thomas might do in the event that (a) George W. Bush remains President and (b) decides to expend the quite substantial amount of political capital it would take to have Thomas confirmed as Chief Justice. The position as Chief would give Thomas an institutional leadership role, and the new colleague filling his own seat would undoubtedly be a relatively young modern Republican. (Of course, a President Bush choosing a new Chief Justice might look outside the Court for someone who would provide leadership inside it.)
Finally, there's Scalia. Here I return to a theme in an earlier post, in which I argued that Scalia seems to have decided that he preferred acclaim among his acolytes to success inside the Court. I don't have much to add to what I argued there, except to note -- in a follow-up to Jack Balkin's post on the Webster decision -- that Scalia's obvious fury at O'Connor there (I attribute it to his conclusion that her indecision prevented the modern Republicans from getting behind an opinion by the Chief Justice that would have expressly repudiated Roe v. Wade) seems to have created a permanent breach between them (in the manner that breaches occur between Supreme Court justices -- that is, they remain capable of ordinary civility in their social interactions, but nothing beyond that). So, Scalia created the conditions for his own inability to provide leadership for the modern Republicans.
There may be a simpler, but I think complementary, explanation: There just is a difference in constitutional views between the traditional and the modern Republicans, a difference large enough to make it impossible for them to come together with the degree of consistency that the liberals have demonstrated. The puzzle here is to figure out Justice Kennedy, who, as I noted in Part I of this series of posts, certainly looks as if he ought to be a modern Republican. Again, I think that it's a failure of leadership that allowed Kennedy to stray off the reservation as often as he has done (graduation prayer, Casey, etc.). Posted
by Mark Tushnet [link]
I think Kennedy just seems too squeamish to be fully on board with the Scalia/Thomas mode of interpretation. He has this idea that precedent matters, I think, and is less willing to say that former courts have gotten the Constitution completely wrong.
If the top constitutional scholars of today got together to address this question, what could we expect to hear from them? Professor Randy Barnett's "Restoring the Lost Constitution" (2004) might serve as an appetizer for this discussion and provide some heartburn. If former courts have gotten the Constitution wrong, then what would have been right and what would America have looked like if they had been right? Whatever these scholars would decide upon would surely be critiqued promptly and perhaps for decades. In addition to death and taxes, decisions of SCOTUS will always be subject to criticism. Perhaps that is a form of evolution.
CJ Rehnquist might have got tired, but he also was pretty successful, making a semi-"retirement" one well earned. State sovereignty, (with help from legislation) paring back habeas, and real scrutiny to all affirmative action programs (except perhaps in education, which was probably unlikely).
Push comes to shove, he never was an "extremist," so the fact that such movements didn't go all the way probably didn't upset him. And, a libertarian wing of the Republican Party made it unlikely that it would go too far on certain social issues.
Thomas as CJ is really an outragous choice. I don't think it's a serious possibility -- his judicial heart might be in the right place, but its just too rough. An Albert Gonzalez sort (who wasn't hurt by torture memoranda) is a lot more likely. I am kind of surprised actually that Rehnquist didn't retire last year to allow said person to get in.