With the Chief Justice's death last September, the book was closed on the Rehnquist Court. Politically and jurisprudentially, however, the book had slammed shut long before. In 1986, when William H. Rehnquist was confirmed as chief justice (and Antonin Scalia succeeded to the associate justiceship Rehnquist had vacated), American conservatives, then politically resurgent, had great expectations that the Supreme Court's excesses of the past several decades would be reversed or at least substantially moderated. But though Rehnquist would preside over the Court for almost two decades, the window of opportunity for fundamental change in American constitutional law closed within six years of his confirmation.
In fact, the end of the Rehnquist Court's high promise may be precisely dated—June 29, 1992. On that day the long-awaited decision in Planned Parenthood v. Casey was handed down, explicitly reaffirming the core holding of Roe v. Wade: that inherent in the word "liberty" in the 14th Amendment's due process clause was a constitutional right for women to terminate their pregnancies by abortion. With this decision, the conservative constitutional insurgency mounted in the 1980s ended in a virtual rout.
The final blow of the abortion case had been telegraphed several days before in another 5-4 decision, Lee v. Weisman, in which the majority disallowed a nonsectarian invocation and benediction at a school commencement ceremony, and reaffirmed the misshapen establishment-clause jurisprudence that had emerged from school prayer decisions 30 years before. Reporting the commencement prayer decision, the New York Times joyfully announced the formation of a "moderate" bloc on the Court consisting of Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter. Indeed, the Time's front page was able to run the same three pictures the day after Casey that it had used the preceding Friday. The importance of this spring '92 alignment can hardly be overstated. During the summer, many conservatives continued to dream about being only one vote away. President George H. W. Bush would be reelected, Justice Harry Blackmun would retire in despair, and then finally, on what would be the sixth conservative try since 1981 (the eleventh since Richard Nixon took office in 1969) a stable, controlling conservative majority would be installed on the Court. But a beaten and intellectually rudderless Bush left Washington in January, and Bill Clinton took office pledged to nominate "world class" progressives to the federal bench. In the spring of 1993 Justice Byron White, one of the four dissenters in both Casey and Weisman, announced his retirement and conservatives consoled themselves by observing that White's replacement, Ruth Bader Ginsburg, was not as bad a choice as President Clinton might have made. On April 6, 1994, Justice Blackmun announced, finally, his intention to step down—but hardly in despair. He went full of honors, celebrated as a hero of American constitutional development.
The Counterrevolution That Wasn't
To understand just how little was accomplished in the Rehnquist years, we have only to recall the breathtaking innovations of the Warren and Burger Courts. Today left-wingers chatter about "respect for precedent" and float notions such as "super precedents," conveniently forgetting that the decisions and doctrines they seek to protect were largely created during the Warren and Burger years (when the baleful influence of Justice William Brennan was at its height). These decisions and doctrines came about through the wholesale slaughter of existing precedents and jurisprudential principles of longer standing and deeper rooting in our legal culture than those now proclaimed sacred.
Most of these initiatives had to do with constitutional construction, but some involved matters of statutory interpretation. A few had wispy intellectual roots that ran back to the 1940s and beyond, but most were cut from whole cloth after 1960. Chief among these was the careless extension of free speech protection to utterance and conduct that were historically regulated under the police power of the states and were of little or no communicative significance. There was also the gutting of the 1964 Civil Rights Act's "no discrimination" provisions; and the relentlessly secularist and historically unjustified separation of religion from the public order. These Courts discovered unenumerated and previously unimagined "fundamental rights" in the 14th Amendment's due process and equal protection clauses. Moreover, they thoughtlessly created new procedural rights and requirements in the area of criminal justice, and disregarded the cardinal constitutional principle of federalism.
Admittedly, the late 1980s and early 1990s saw a few small gains in the area of criminal justice. In the others, failure was complete. All the important points were reargued and conservatives lost—with the margins of defeat provided by Reagan and Bush appointees.
But what about the later '90s? Didn't the counterrevolution come, but just a little late? As early as the conclusion of the 1994-1995 term, Linda Greenhouse, the New York Times's veteran Supreme Court reporter, was arguing that the "moderate" bloc of Casey had broken down, with the Court's center of gravity shifting to the right. On July 6, 1995, a Times editorial portentously referred to "a court running in the wrong direction." That same month, Jeffrey Rosen, the able Court-watcher for The New Republic, wrote that the conservative justices "think they have finally exorcised the ghost of the Warren Court, [and] fulfilled the goals of the conservative judicial revolution." And again, after the closing of the Court's 1995-1996 term, there was much grumbling on the left about the conservative justices committed to returning constitutional law to the dark ages.
Unhappily, all this was wildly overstated. To the extent that there was any fundamental change on the Court in the late 1990s it had to do with Justice David Souter's steady drift to the left. Not since Harry Blackmun's metamorphosis from Chief Justice Burger's "Minnesota twin" to being the darling of elite law schools, has there been an intra-Court development as dramatic. Indeed, just as Justice Blackmun's shift was initially heralded by an adulatory article in the New York Times Magazine, so a piece appeared there in September 1994 celebrating Souter's growing judicial maturity. As for Justices Kennedy and O'Connor, what Greenhouse and others mistook for a turn to the right was nothing more than a continuation of the essentially unprincipled balancing act that has been their distinctive judicial style. What looked to the Left to be impressive conservative victories were a few marginal adjustments. Just consider what has happened in the last 15 years in six crucial, battleground issues of constitutional law.
Here we need look no further than the fate of the 1996 Communications Decency Act. The Court was presented with a perfect opportunity to undo (at least partially) one of the great mistakes of the Warren era—the painfully restrictive definition of "obscenity" put in place by Roth v. United States in 1957, and modified only slightly by the Burger Court in 1973. In proposing to protect minors on the internet, Congress availed itself of two new general rubrics: "indecent," and "patently offensive." If these could be employed (without the necessity of an elaborate "finding of obscenity") then at least the federal government—at least with respect to the new technology of the net—would have enjoyed some pre-1957 flexibility in regulating smut. Instead, Justice Stevens's Opinion of the Court reiterated the by-then-familiar sweeping free speech libertarianism, and held that the restrictions intended to protect children might have the impermissible effect of depriving adults of their constitutionally protected access to pornography.
As to the Civil Rights Act itself, there was no indication of readiness to undo the damage done by William Brennan's 1979 opinion in United Steelworkers of America v. Weber, where racial preferences were held not to violate the act's "no discrimination" command. It is true that a slim majority (typical of the Rehnquist Court) made a move toward limiting race-conscious public policies under the 14th Amendment. The problem is that the amendment, fairly constructed, does not command colorblind public policy while the Civil Rights Act does. In cases such as Adarand Constructors, Inc., v. Pena (1995) and Shaw v. Reno (1993), the majority reached morally admirable results without any basis in the originalist interpretive approach to which it was supposedly committed. In other words, the conservative majority was willing to undo earlier activism (the judicial and bureaucratic corruption of the Civil Rights Act into an instrument of result-oriented "affirmative action"), prompting it to a little activism of its own—advancing the myth of an almost colorblind 14th Amendment, then refusing to follow through even on this, and collapsing in the embarrassing muddle created in 2003 by Justice O'Connor in Gutter v. Bollinger and Gratz v. Bollinger (involving racial preference in admission at the University of Michigan law school, and at its undergraduate college).
This area is often cited by those who believe the Rehnquist Court reversed Warren-and-Burger-era doctrine. A number of cases are typically offered as examples, but three tell the story, such as it is. The first is 1997's Agostini v. Felton, which did actually brush aside William Brennan's earlier opinion that forbade publicly paid teachers of remedial reading from going onto parochial school premises. But although Justice O'Connor's Agostini opinion is a step back from the high-water mark of separation, it is only a baby step. Along with the Court liberals (Stevens, Ginsburg, Breyer, and Souter), O'Connor remained firmly committed to strict separationism. All we have in Agostini is a nuanced disagreement between O'Connor and the liberals as to how the "test" for strict separation should be applied.
A second case could have resulted in real change except, again, for O'Connor. Justice Clarence Thomas produced an opinion in Mitchell v. Helms (2000) charting a new approach to establishment clause challenges involving church-related schools: as long as the aid program was "neutral" (available to public and private, secular and church-affiliated), and as long as what was provided was secular in nature, there would be no constitutional problem. This was elegant and sensible, but O'Connor refused to join it, depriving it of majority support. Instead she concurred only in the result (upholding the challenged program), and taking Thomas to task for ignoring various strict separationist "tests" and distinctions in a fashion "in tension with our precedents."
The third case, and the most famous, is 2002's Zelman v. Simmons-Harris, upholding the Cleveland school voucher program. The "big news" was that tuition vouchers used at church-related schools were upheld, but Chief Justice Rehnquist's Opinion of the Court (divided 5-4) broke no new doctrinal ground, and once again there was a subversive O'Connor concurrence, denying that the decision "marks a dramatic break from the past."
She was right. The pattern is one of small course corrections combined with a refusal to confront and correct fundamental doctrinal mistakes dating from the Warren years.
Unenumerated Fundamental Rights
Nothing has happened in the years since Casey to reopen the question of the legitimacy of the Court's discovering unenumerated fundamental rights in the 14th Amendment. In fact, the doctrine of autonomy for "intimate" choices has been quietly expanded. Granted, in its 1997 decision in Washington v. Glucksberg, the Court declined invitations from the second and the ninth circuits to create a right to assisted suicide. Largely unnoticed, however, was the extent to which the various opinions expanded the constitutional right to die (which had been tentatively advanced in the Cruza case seven years earlier) and hinted powerfully that this "right" included access to painkillers that might hasten death. As Justice Scalia later quipped: "We're not quite ready to announce a right to assisted suicide—check back with us."
The modest rollback of Warren Court activism in the area of criminal justice achieved in the 1980s did not continue into the 1990s. There was nothing, for instance, to match even the limited exception to the Fourth Amendment's exclusionary rule that was carved out in 1984. Indeed, the Court in recent years has arguably added to the expense and difficulty of criminal trials by crafting demanding new equal protection rules for the selection of juries. An effort to limit access to habeas corpus (which had swelled to elephantine proportions in the '60s and '70s) appears to continue, but this hardly amounts to a heroic readjustment of the rights revolution in the area of criminal justice. And most tellingly, in 2000, the Court, speaking through William Rehnquist, declined a golden opportunity presented by the fourth circuit to restrict the sweep of that most controversial of Warren Era criminal justice decisions, Miranda v. Arizona.
This is an area in which the Rehnquist Court in the 1990s signaled the possibility of significant change, but what was accomplished was (in Robert Nagel's phrase) more a suggestion than a revolution. The 1995 Lopez decision has gotten the most attention, but despite the similar outcome in 2000's U.S. v. Morrison, its durability and longer-term implications remain to be seen. The core of the chief justice's opinion—that when Congress regulates non-economic activity under the commerce power it must make a colorable case for the effect on interstate commerce—was laudable. But Justices Kennedy and O'Connor were at pains to distance themselves from Rehnquist's opinion, suggesting that no real change was being made in commerce-clause doctrine. It is also worth noting that the Gun-Free School Zones Act has been reenacted with a commerce rationale precisely along the lines suggested by Justice Breyer in his Lopez dissent. It is only when we have a majority consistently prepared to disallow such tenuous connections to interstate commerce that we can confidently state the Lopez case amounts to anything. And, sad to say, the chief lost his last commerce-clause case, Gonzales v. Raich, in 2005, when the Court, in an opinion by Justice Stevens, found the commerce power broad enough to authorize the federal government to shut down California's medical marijuana experiment.
It is true that cases in 1992 and 1997 did reinforce the principle that Congress may not commandeer states and state officials as enforcers of its laws. It is also true that decisions in the past few terms limiting the power of Congress to create private causes of action by individuals against state governments vindicated an important component of federalism (the integrity of the states as constitutionally sovereign entities). But the bottom-line judgment must be that the prospects for a reinvigorated federalism looked only marginally better in 2005 than in 1986.
However, what finally destroys and mocks any claim that the Rehnquist Court moved constitutional law in a seriously conservative direction is the events of 2003. The Supreme Court's decision in Lawrence v. Texas in June, followed closely by the decision in Massachusetts's Goodridge v. Department of Public Health in November, has precipitated a full-blown constitutional crisis.
For a decade before Goodridge, several state high courts had been sniffing hungrily around the subject of gay marriage, experimenting with variously implausible state constitutional arguments. Judges in Alaska and Hawaii, for instance, were driven off by constitutional amendments, and at the federal level congressional pressure forced President Clinton in 1996 to sign the Defense of Marriage Act (DOMA), which provided that no state had to recognize an out-of-state gay marriage. But Anthony Kennedy's opinion in Lawrence altered the landscape of constitutional politics dramatically.
Kennedy struck down the Texas prohibition on homosexual sodomy citing the 14th Amendment's due process clause, gratuitously overruling Bowers v. Hardwick (1986), a precedent of 17 years standing and perhaps the one genuine example of judicial modesty displayed by the Court in the 1980s. According to Kennedy, Justice White, the author of the Bowers opinion, had made a terrible mistake by asking whether there was a fundamental unenumerated right to engage in consensual homosexual sodomy. White had concluded, quite properly, that only if the Court were willing to affirm such a fundamental right could it invalidate the Georgia statute; this was fully consistent with the Court's doctrine of substantive due process developed up to that time. Justice Kennedy, to the contrary, held that the question was not whether a fundamental right to homosexual sodomy existed but whether there was a realm of intimate sexual association protected by the 14th Amendment, a realm that could be subjected to government regulation only if that regulation had a rational basis. This was ridiculous on its face. The notion that stating a "right" at a meaningless high level of abstraction obviates affirming a right to the specific behavior at issue is simply escapist. And after concluding that the proper test for the Texas statute was "rational basis," Kennedy found that there was none! In dissent Justice Scalia warned that Kennedy's radically broad, brash opinion would open the door to same-sex marriage. This was quickly borne out in Goodridge.
Writing for the Supreme Judicial Court of Massachusetts, Chief Justice Margaret Marshall relied on the equal protection clause of the Massachusetts Constitution, but her approach was structurally identical to Kennedy's in Lawrence, on which she heavily relied. Despite 200 years of history, the disagreement of the governor, opposition by majorities in the state legislature and by a healthy majority of the citizens of the commonwealth, Marshall simply declared that there was no rational basis for restricting marriage licenses to couples of opposite sexes.
In the following November's electoral cycle, eleven states, reacting to events in Massachusetts, either altered their state constitutions to protect traditional marriage or adopted baby DOMAs, statutes with the same aim. And George W. Bush moved, albeit hesitantly, to endorse the idea of a national constitutional amendment restricting marriage to men and women.
Our Constitutional Crisis
Will the judges be deterred by all of this? Of course not. Meet Judge Doris Ling-Cohan of New York County (that's Manhattan to the rest of us). On February 4th last year, she delivered herself of a 50-page opinion in the case of Hernandez v. Robles, holding that in New York City, under the due process clause of the New York Constitution, the city must issue marriage licenses to same-sex couples. Following Kennedy in Lawrence, and Marshall in Goodridge (both extensively cited), Ling-Cohan held that existing New York law flunked the rational basis test. Her opinion is much more cleanly and powerfully written than either Kennedy's effort in Lawrence or Margaret Marshall's clotted prose in Goodridge. While for the moment Ling-Cohan stands reversed by New York's intermediate-level appeals court, other judges around the country are also beginning to feed on Goodridge and Lawrence. Last March, Judge Richard A. Kramer of San Francisco County Superior Court, held that California's equal protection clause mandated same-sex unions, despite the fact that his state Supreme Court was then wrestling with that very question.
But even now the depth of our constitutional crisis is not fully understood. Gay marriage is a public policy choice of major consequence, which the judges (or at least the more adventurous judges) are determined to preempt and arrogate to themselves. This is serious, but the nature of the arguments on which the courts are now proceeding, the propositions now being advanced as what "the law" is, have truly deadly implications for the future of constitutional government in America.
For what the judges are doing, from Justice Kennedy on the Supreme Court, through Margaret Marshall in Massachusetts, to Richard Kramer in San Francisco, is liberating themselves from the cumbersome and (at least potentially) limiting doctrines that in the past were advanced to justify striking down legislation on the basis of unenumerated constitutional rights. Under these prior understandings, in order to strike, the judge had to arm himself with the doctrinal weapon of "strict scrutiny"; only then could he insist that a "compelling interest" was necessary to justify the governmental regulation, and that the means chosen to advance such an interest must be "narrowly tailored" to its accomplishment. To get to strict scrutiny it was first necessary to find either that a fundamental constitutional right existed, rooted in our history, or that the law trenched upon the interest of some "suspect class." Only from the plateau of strict scrutiny could the courts preempt public policy decisions. Absent that, the routine 14th Amendment test was "rational basis," and as generations of constitutional law students have been taught, this is an easily satisfied threshold requirement for constitutionality—the minimal constitutional hurdle which any law must clear. In one early formulation: "If any state of facts can reasonably be conceived that would sustain [the law], the existence of that state of facts at the time the law was enacted must be assumed." But now the whole grammar of 14th Amendment strict scrutiny analysis appears to have been abandoned. In its place the judges, following Kennedy, make no arguments themselves and simply stigmatize all arguments put forward to justify a law as "irrational." Doctrinally it is scandalous, but rhetorically it is quite brilliant.
First, all government action is equally subject to rational basis, and second, what is rational is now strictly in the eye of the judicial beholder. And one thing that we have been taught clearly by Kennedy, Marshall, and the others is that a moral justification for legislation can never constitute a rational basis. (Morality is now consigned, in constitutional law, to the realm of the "irrational.") No matter that the classic formulation of state police power has always been "power to protect the health, safety, welfare, and morals of the citizens." No matter that up until a few years ago an assertion by a judge that government in America may never regulate behavior based on moral disapprobation would have been laughed out of both courts and classrooms. In fact, Justice Kennedy first floated that notion in Romer v. Evans back in 1996, and while he had been very cagey in his statement of the proposition in Romer, by Lawrence it was out of the closet, and is now quite explicit in the writings of Marshall, Ling-Cohan, and Kramer. The operational effect of abandoning strict scrutiny for a new, bionic version of rational basis is that now judges need argue nothing themselves; they simply react to arguments made by defenders of governmental action and decide whether these arguments strike them as persuasive or not.
Getting the Nominations Right
None of this, of course, is the late Chief Justice's fault. In his years as a frequent dissenting voice from 1972 to 1986, he often presented intellectually compelling alternatives to mistaken paths along which post-Warren majorities continued to plod. His 1985 dissent in Wallace v. Jaffree, for instance, effectively undermined the spurious historical foundation on which the liberals' strict-separationist jurisprudence rested. And in his almost 20 years in the center seat he worked assiduously to build conservative majorities, wavering only in a few instances, such as United States v. Dickerson (1999), where his growing attachment to judicial supremacy led him to uphold Miranda warnings.
No, the blame belongs mainly to the presidents who nominated the Rehnquist Court's wavering justices, beginning with Ronald Reagan, who mortgaged his first Supreme Court nomination for electoral advantage in 1980, without giving thought to who "a woman" might be. In the event, he resorted to an obscure new judge (and former state legislator) on the Arizona intermediate appellate bench, with a vaguely pro-life reputation. Although he recovered with his choice of Antonin Scalia a year later, he failed to respond vigorously to the attack on Robert Bork; and then, shocked by Bork's defeat and embarrassed by the implosion of Douglas Ginsburg's short-lived nomination, he hurriedly put forward the insufficiently vetted Anthony Kennedy. Above all, however, blame for the Rehnquist Court's failings rests with George Herbert Walker Bush. Although he can take credit for the superb choice of Clarence Thomas, he was initially unwilling to engage Senate Democrats energized by their Bork victory, and in 1990 made the ultimate stealth nomination of David Souter ("John Sununu says he's sound"). Almost literally nothing was known about him; they didn't ask and he didn't tell, and a Republican president replaced William Brennan with a Brennan clone.
George W. Bush, of course, has done much better, and we move now into the Roberts/Alito era. Conservatives have more reason to hope for reform in constitutional law than at any time since June 1992. The president has made two splendid nominations, but three is really the charm. Make no mistake: on most issues the other side is still winning and could possibly win big on the issue of gay marriage. Overwhelmingly, the legal academy (a.k.a. "The Mainstream") still belongs to the "living constitutionalists." And although conservative constitutionalists are deeper intellectually and tougher politically than they were 20 years ago, things looked good in 1986, too.
We will all do well to remember that constitutional discourse today is a kind of forensic performing art carried on before a tiny and very select audience. By its applause or invective, that audience is used to exercising a powerful influence over who wins and who loses, and this audience is almost monolithically liberal. Girdled in the armor of self-righteousness, and operating on the basis of a "progressive" political-moral orthodoxy unchallenged until recently, the con-law establishment is supremely ruthless with no sense of being so. The interweaving of two institutions, the law school (especially the great national law schools) and the judicial clerkship, has created a closed little society Don Corleone might envy. It would take a long book, and the skills of an old-time Kremlinologist, to map all the interconnections between schools (and their publications), clerks, and judges. Of course, Roberts and Alito know this; it is their own world after all. And they must also know that to the extent they attempt to nudge constitutional law back toward more traditional, respectable contours, their portion from their peers will vary from contemptuous dismissal to outright vilification. They will know, in fact, that a favorable mention in the Harvard Law Review or the New York Times will signal the need for searching self-examination.
Good luck, gentlemen.