Balkinization  

Sunday, August 22, 2004

Understanding the Rehnquist Court

Mark Tushnet

Jack's post on the Casey decision prompts me to sketch my argument in "A Court Divided," as promised (or threatened) earlier. The basic dynamic on the Rehnquist Court, I argue, has two elements, one on the "conservative" side, and one on the "liberal" side. Here I'll deal with the first, and post tomorrow about the second.

One way to get into the element on the conservative side is to think about where the "troika" opinion in Casey came from. That is, how did O'Connor, Kennedy, and Souter come to agree on reaffirming what they called the "core holding" of Roe v. Wade? Of course there are "local" -- that is, particular to individuals and circumstances -- components of the account. For example, Kennedy has a streak of libertarianism, not systematically integrated into an overall jurisprudence but mobilized on (not quite random) occasions. That's an important part of his position in the gays rights cases, for example, and probably played into his action in Casey. And, it seems clear to me that O'Connor was "turned off" by Scalia's vigorous attack on her in the Webster decision, where (as Scalia saw it), O'Connor's indecision led to a weaker anti-Roe opinion by Rehnquist than he could have written (had he known that O'Connor was not going to get on board with the weaker opinion) -- and by her decision a year earlier in Minnesota v. Hodgson to invalidate (for her, for the first time) a restrictive abortion law, because of what she saw as its really serious adverse impact on abused women.

But, more broadly, Casey stands for -- symbolizes -- a division within the Republican party, between what I call modern (post-Goldwater) Republicans and traditional Republicans of a sort that was once associated with Nelson Rockefeller and that still remains strong in the Republican party in the Northeast. The latter point explains why Souter's positions should not come as a complete surprise. He's said that he came to the Court completely unacquainted with the important constitutional issues that he's had to deal with, but that doesn't explain why, once he studied the issues, he came out where he did. I think the reason is that his sensibilities and presuppositions were those of a Northeastern Republican.

O'Connor and Kennedy are different. O'Connor was an activist in the Goldwater Republican party in Arizona, and Kennedy was associated with Ronald Reagan in California. That is, in biographical terms they seem to be "modern" rather than "traditional" Republicans. For O'Connor, though, that was tempered by her experience as a suburban professional Republican woman in the 1950s and 1960s, who channeled her ambition for several years into the social-welfare activism of people in her social circle, when she took time off from her law practice to raise her young children. She was, that is, a fairly typical "country-club Republican" who found that the party she became active in was already the Goldwater party, whose most conservative positions would influence her but which could not overcome the effects of how she experienced her life as a suburban professional Republican woman.

Kennedy's a harder case, in Casey itself -- and it seems to me significant that, though he went along with Casey, he went back to the "conservative" side in Stenberg v. Carhart. Still, I think that it's fair to associate Kennedy with traditional Republicanism -- maybe because that's how he grew up (with a father who was a hail-fellow-well-met lobbyist). Perhaps more important, Kennedy pretty clearly sees himself as a "statesman" on the Court, which necessarily pushes him toward less hard-edged positions than, for example, Scalia takes. ("Pushes him" doesn't mean that he always ends up "in the middle" -- consider his position in affirmative action cases. Still, "statesmanship" induces a tendency toward traditional rather than modern Republicanism on a Court with a significant number of more liberal members.) Something similar seems to operate for O'Connor as well, whose experience in the Arizona legislature was one of leading a closely divided body.

So, in short, the main theme in the Rehnquist Court has been a division among Republicans that tracks, albeit imperfectly, a distinction between modern Republicans (plainly, now dominant in the party) and traditional ones (equally plainly, now a dying breed). Tomorrow: what's the story on the "liberal" side?

Comments:

I always got the impression from the Casey to Stenberg change made by Kennedy that he felt the "no undue burden" standard would allow significantly greater abridgement of the right to choose than Stenberg made clear would be allowed, and I think Scalia saw it too, and tried to take advantage of it in his dissent when he wrote that Stenberg was the obvious consequence of Casey, and anyone disagreeing with it needs to see Casey overruled.

To me, 1000% of the focus of any discussion on Casey is the question of what, exactly, Blackmun and Kennedy discussed after Rehnquist was so sure he was writing a majority opinion...what could've been a "new development" two months after Rehnquist had already declared a "W?"
 

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