I. Seeing the Court in Political Perspective.

Political scientists converge on perceiving the Supreme Court, and therefore the Rehnquist Court, as a “political institution,” but there are many different understandings of what this means. Some scholars see the Court as simply an arena in which justices vote their political attitudes. Others describe judicial ideologies in more complex terms that include legal philosophies and notions of suitable judicial roles. Many today focus on how the justices engage in strategic behavior, voting to build coalitions on the Court and to make the Court’s positions effective against other political actors. Some, indeed, especially stress how the Court seeks to preserve and enhance its own institutional power in relation to the other branches of the federal government, the states, and private citizens. Others have long emphasized instead how the Court is shaped by and provides service to the political coalitions that are nationally predominant in different eras. Most of us would grant some credence to all these views.

I do too; but when as here we seek to understand the place of the Rehnquist Court in the broader trajectory of American constitutional development, I think it is most illuminating to evaluate the Court in relation to broader trends of political development-and I do think the Rehnquist Court expresses and reinforces rather than challenges those trends. I also have a distinctive concern with the relationship of constitutional discourse to broader political ideologies. I believe that the Court is politically driven to craft arguments that simultaneously claim to be anchored in the constitutional text and fully responsive to current needs and values; that these demands often produce tortuous reasoning that is a hallmark of constitutional argument; and that this reasoning sometimes helps legitimate positions in more general political debates. In that light I think the Rehnquist Court has helped reinforce certain distinctive tropes in contemporary American political arguments, including “color-blindness” and the wrongness of “big government” as opposed to “federalism” and state and local power.

II. The Dominant Trends in Contemporary American Politics.

Painting in broad strokes has obvious limits but is often heuristically necessary. I believe the most fundamental determinants of American politics in the Rehnquist years have been, domestically, ongoing responses to the civil rights and economically redistributive initiatives of the 1960s and early 1970s that have made this a period of stagnation and retrenchment on those issues; and internationally, the end of the Cold War and the positioning of the U.S. as the only superpower in an age of intensifying global interconnections. The former has been most important for constitutional jurisprudence during the Rehnquist Court up to now, but the latter may well loom larger in the years ahead as questions of national security and transnational agreements become ever more prominent. In any case, the domestic and international trends are linked: as Philip Klinkner and I have argued, the deeply entrenched character of American racial hierarchies has meant that reforms have come only when domestic and international factors have created great pressures for change, as in the Cold War era of the 1950s and 1960s; and periods of reform, which in the 60s included economic as well as racially egalitarian reforms, have thus far always been followed by periods of stagnation and retrenchment such as has characterized the Rehnquist years. The end of the Cold War has in some ways lessened pressures for egalitarian reforms but America’s international role has still placed some limits on how far retreats can go and, even more, on the forms they can take.

On all pertinent fronts, the Rehnquist Court has articulated and contributed to the distinctive form of the dominant political conservatism that has resulted in these years, incorporating certain elements of the civil rights and Great Society reforms and of America’s expanded international role while limiting their reach and rejecting other elements entirely. This presentation canvasses some of the leading examples, as I discuss them in my regular undergraduate teaching of constitutional law (which may help us compare and contrast how law professors and political scientists address these topics).

III. The Political Patterns of Rehnquist Court Decisions.

The Rehnquist Court, 1986-present, has never had more than two justices appointed by Democratic Presidents and currently has six justices appointed by Reagan and the elder Bush and one appointed by Ford. Its other two justices were appointed by “New Democrat” Bill Clinton. Hence it is very much a product of the dominant political currents of the 1980s and 1990s. It has expressed the dominant political trends of those years, in many cases extending Burger Court jurisprudential developments in doing so. These include:

1. Racial Equal Protection: The Rehnquist Court has maintained the civil rights era insistence that racial classifications are suspect but has turned the trope of “color-blindness” into close scrutiny of efforts to reduce entrenched racial inequalities. It has overseen effective abandonment of school desegregation efforts; virtually invalidated public affirmative action and remedial majority-minority districts; and it has limited alternative federal bases of advancing civil rights, notably the commerce power, though these decisions have not thus far touched the major civil rights laws of the 1960s. The pattern is one of curbing reform efforts and permitting racial inequalities to deepen but not to construct them actively or repudiate racial egalitarianism explicitly.
2. Gender and Sexual Orientation Equal Protection and Privacy Rights. More than in the case of race, the Court has proven willing to extend protections against traditional forms of gender discrimination and discrimination on the basis of sexual orientation, and it has limited but sustained abortion rights. It has at the same time preserved the validity of bans on homosexual conduct and read the commerce clause so as to limit federal power to address gender violence and discrimination. Again, major efforts to reform gender and sexual orientation inequities are resisted; but at the margin the Court has also gone along with the growing political support for eroding some traditional forms of subordination on the basis of gender and sexual orientation.
3. Property Rights and Economic Equal Protection. The Rehnquist Court has limited the scope of federal commerce powers; heightened protections against “takings” moderately; and not shown any interest in anti-class hierarchy equal protection claims, in keeping with a pattern of limiting and sometimes rejecting the heightened economically egalitarian regulations of the Great Society era. Admittedly, recent decisions resisting more expansive “takings” interpretations and, more surprisingly, reviving the privileges and immunities clause in a welfare rights context do go against these trends in limited ways.
4. Federalism. The Rehnquist Court has both read national powers over the economy more narrowly and has also frequently invoked the long-minimized 10th and 11th Amendments to limit the reach of a variety of national regulations. In so doing it has given constitutional expression to the rejection of 60s-style “big government” advanced both by recent Republicans and, to a lesser degree, by Clinton. Many of the measures challenged express racial, gender, labor or environmental goals characteristic of the civil rights and Great Society eras.
5. Free Expression and Non-Gender Privacy Rights: The Rehnquist Court has maintained and in some cases extended broad protections in these areas, but it has also often defined the boundaries of speech and privacy rights, among other rights through appeal to notions of traditional mores and social conventions, an inherently conservative approach; and it has continued to extend free speech protection to personal political expenditures. The pattern is to define speech and privacy rights in ways that conform to rather than challenge prevalent moral norms and economic inequalities.
6. Criminal Justice Rulings. The pattern in Rehnquist Court criminal justice rulings mirrors those just reviewed: a heightened emphasis on federalism, expressed in reductions of the availability of habeas relief; maintenance of the main Warren Court doctrines defining rights of the accused, while using traditions, conventions, and exceptions to limit the scope of 4th, 5th, 6th and 8th Amendment rights, especially claims that suggest sweeping challenges to the disparate racial and class impacts of criminal justice processes.
7. Rights of Aliens and Treaty Obligations. Though at the margins the Rehnquist Court has been more willing to uphold claims that aliens are entitled to basic due process and equal protection rights than some predecessors, its decisions continue patterns of permitting the national government extremely broad discretion in the policies and procedures it applies to aliens, in the processes through which it adopts international agreements, and in its obligations to abide by those agreements. The pattern is to provide enough oversight so that the U.S. can claim that basic rights and rule of law are provided to all, without significantly limiting national policymaking in these regards.

Overall, a strong case can be made both that the Rehnquist Court’s rulings express the dominate political trends of the last two decades and that, accordingly, they have helped to stall and in some regards reverse governmental efforts to transform substantially America’s entrenched patterns of racial, gender, and class inequalities, in ways that have strengthened state governments versus the national government domestically while preserving great national discretion in foreign policy matters.

IV. Rehnquist Court Discourse and Political Discourse.

The Rehnquist Court, like all courts, articulates its rationales while faced with competing political pressures: to preserve institutional legitimacy by credibly rooting decisions in authoritative legal texts, while also reaching substantive results that satisfy the Court’s core contemporary constituents, in government and in the broader legal and civic publics. This Court might be thought to face special pressures, or to have special desires, to adopt some form of explicitly originalist and/or literalist jurisprudence. It would, however, be difficult to satisfy the demands of its contemporary constituents effectively if it did so. In fact it more characteristically resorts to its interpretation of broader political and social traditions, and to some opportunistic adaptations of 60s and 70s doctrinal innovations, to reach its results. Thus federalism, limits on national governmental powers, the scope of criminal justice guarantees, speech and privacy rights are all defined far more by what the Court presents as dominant, traditional practices than either by original intent or explicit textual bases. Doctrines like “color-blindness” and “intermediate scrutiny” are also adapted to serve to limit pressures for progress toward greater racial and gender equality and to protect property rights. This is a pattern best explained in political terms, not as a matter of essentially legal logic, whether understood as “reasoning by analogy” or in other such terms-as much though not clearly more so as the jurisprudence of any other Supreme Court.

Though expressive of broader political currents, these judicial decisions arguably have also contributed to them, by conferring grander mantles of legal legitimacy on concepts like “color-blindness,” special protection for property rights, and the prerogatives of the states. But how far the Court has meaningfully shaped rather than roughly mirrored politics, and whether it has done so to a greater degree in this area rather than some other, are questions on which political scientists disagree, and which we need to explore and answer more fully than we have done. I think it is much more our challenge and responsibility to do so than it is that of our legal counterparts. That may be a basic difference in the ways in which we approach, or at least should approach, the Rehnquist Court.