Understanding the Rehnquist Court III

Mark Tushnet

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 9:14 PM by Mark Tushnet [link]