Friday, August 27, 2004
Understanding the Rehnquist Court III
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?
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.
Have former courts gotten the Constitution 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.
I'm neither pro-choice nor pro-life. But I'm pro-free-life! Check out www.ProFreeLife.com.
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