Tuesday, August 24, 2004

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?


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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