Rehnquist Court

• Author: Larry G. Simon
• Pages: 2160-2168

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The Rehnquist Court began its reign in September of 1986 when President RONALD REAGAN appointed WILLIAM H. REHNQUIST Chief Justice to replace retiring Chief Justice WARREN E. BURGER. This article reviews the first four years of the Rehnquist Court. Before his appointment as Chief Justice, however, Rehnquist had served as an Associate Justice on the BURGER COURT for almost fifteen years. Like Burger, he was originally appointed by President RICHARD M. NIXON to redeem a specific campaign promise to promote law and order through Court appointments that would stem the tide of WARREN COURT decisions protecting the rights of the criminally accused and to pursue his more general philosophical commitment to appoint "strict constructionists ? to interpret the law, not to make law."

The Burger Court itself made a fairly quick start in redeeming Mr. Nixon's law-and-order pledge, although the Rehnquist Court has continued and in some ways even accelerated this redemption. It seems highly likely that the elevation of Rehnquist, in conjunction with two subsequent appointments by President Reagan and one by President GEORGE BUSH, will complete the more general transformation of the Court contemplated by President Nixon's commitment to STRICT CONSTRUCTION.

This broader transformation has been steady but slow. It has been steady because Republican Presidents holding the conservative values associated with "strict construction" have controlled the White House continuously since Nixon's election, except for the four-year interlude of President JIMMY CARTER, who did not have the opportunity to appoint a single Justice. It has been slow partly because some of the appointees did not turn out as conservative as expected and partly because some of the conservatives replaced other conservatives rather than liberals. Of President

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Nixon's four appointments, only one, Chief Justice Burger, remained consistently faithful to the conservative cause, whereas Justice LEWIS F. POWELL proved to be a moderate and Justice HARRY A. BLACKMUN became increasingly liberal. Justice JOHN PAUL STEVENS, appointed by President GERALD FORD, has also proved to be a moderate; one of President Reagan's first two appointments replaced a moderate, Justice SANDRA DAY O'CONNOR replacing Justice POTTER J. STEWART, and the other, Justice ANTONIN SCALIA, replaced conservative Justice Burger.

The key appointment giving the conservatives on the Rehnquist Court a clear majority on most if not all issues did not come until President Reagan's 1988 appointment of Justice ANTHONY M. KENNEDY to replace retiring Justice Powell. Ironically, this appointment was made only after the Senate, following a historic controversy, had rejected Mr. Reagan's first candidate to replace Powell, Judge Robert Bork, on the ground that he was too conservative. Kennedy, during his first two terms in office, has proved to be as conservative as many expected Bork might have been, and the principal effect of the Senate's rejection of Bork appears to have been that President Bush in nominating his first Court appointee, DAVID H. SOUTER, to replace liberal stalwart WILLIAM J. BRENNAN searched for a conservative who, unlike Bork, had published nothing indicating his views on any important constitutional questions.

"Strict construction" is sometimes equated with a strategy of interpreting the Constitution according to the "plain meaning" of the text or the intention of its Framers. In fact, however, this interpretive strategy had not proved so far to be of great importance, except with regard to the methodology used by the Court to decide whether rights not expressly mentioned in the text are impliedly protected, where a variation of it has gained prominence. The form of strict construction, or CONSERVATISM, that has gradually come to dominate the Court, however, has been based more on institutional and political than on historical or textual commitments.

Institutionally, most of the Republican appointees have been inclined to resolve any doubts about how the Constitution should be interpreted by upholding actions of other agencies of government. This inclination probably rests mainly on three interconnected institutional commitments: a vision of democracy that pictures majoritarian-responsive institutions as its centerpiece and the life-tenured Court as antidemocratic; a vision of the management of society as a complex matter best delegated to various experts and professionals, like school boards and other ADMINISTRATIVE AGENCIES; and a vision of FEDERALISM that views with suspicion the intrusion of federal power including the JUDICIAL POWER, into areas of decision making traditionally left to state and local government.

Politically, most of the Republican appointees have been guided or at least disciplined by the values associated with the constituency of the Republican party in late twentieth-century America. The Burger Court sat and the Rehnquist Court is sitting in an era when the historically dispossessed are actively seeking possession: blacks and other racial minorities; the poor and the homeless; women; gays; and other groups, like the handicapped, who have in different ways been marginalized in our society.

The Republican party has sought in a variety of ways to accommodate the interests of these groups, but it has been the party of mainstream America, not the party of the dispossessed. While Republicans and Democrats have vied for the "law and order" vote, the Republican party has been the more consistently and vocally anticriminal. The party has sought a moderate, compromising posture on the matters touching the protection of minority groups, women, and the handicapped. It has generally aligned itself at least rhetorically with traditional and to some extent religiously inspired moral views on controversial social questions such as ABORTION and homosexuality. While it has often conformed to the realities of interest-group politics, it has tended to resist governmental redistributive programs that would tax or otherwise interfere with property interests, preferring to rely instead on a relatively unregulated market to provide full employment and thus help the poor.

The behavior of the Rehnquist Court has been quite consistent with these political commitments, although at the same time, it is worthy of emphasis that a consistent and cohesive "Rehnquist Court" does not yet exist in one important sense. Even the conservative Justices sometimes disagree over outcomes and often, in important ways, over the rationale for decisions. As a result, the Court is often at least doctrinally splintered.

The Supreme Court, like the Republican party, has often sought what might be characterized as compromises; but on the whole, it is the Court of mainstream America, not the dispossessed. In a high percentage of important constitutional cases, its institutional and political commitments have pointed in the same direction. When these commitments have conflicted, it has to this point usually refrained from imposing its values, instead deferring to the governmental agencies whose decisions are challenged. There are some important exceptions, most notably in its resistance to AFFIRMATIVE ACTION programs, but these have been few and on the whole restrained. For example, although it has sometimes protected PROPERTY RIGHTS against governmental regulation, its rulings to this point do not remotely promise a return to pre-NEW DEAL ideology. Occasionally, chiefly in FREEDOM OF SPEECH cases, it has acted in ways that might be interpreted as neither institutionally nor politically conservative, as in upholding against regulation the speech rights of flag

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burners, but such cases are also rare. The Rehnquist Court has been, largely but not completely, a passively rather than an actively conservative court.

In one view the Court's overall performance shows only that the system is working as it is supposed to work: the presidential appointment power is the main effective check on these nine Justices who are accountable to no electorate, and twenty years of Republican Presidents has had an effect on the Supreme Court.

The Rehnquist Court has continued the Burger Court's contraction of the RIGHTS OF THE CRIMINALLY ACCUSED and convicted, in general subordinating these rights to lawand-order concerns, except in a subclass of cases in which the prosecution behaved outrageously in a way that might have tainted the guilt determination. Both courts have restricted the application of the FOURTH AMENDMENT'S prohibition of unreasonable SEARCHES AND SEIZURES and the Fifth Amendment's prohibition of compulsory self-incrimination, limited the scope of the EXCLUSIONARY RULE, interpreted the Eighth Amendment so as to allow the states great discretion in reinstituting and administering CAPITAL PUNISHMENT, and virtually eliminated the possibility of HABEAS CORPUS and other postconviction challenges to final judgments of criminal conviction.

UNITED STATES V. SALERNO (1987), in which the Court upheld against Eighth Amendment attack the pretrial detention of dangerous defendants, exemplifies the Court's law-and-order commitment. Maryland v. Buie (1990) is an example of the priority the Court gives to law enforcement goals over Fourth Amendment rights claims. In this case, the Court sanctioned the use of evidence turned up after an arrest in a "protective sweep" of a house, on less than PROBABLE CAUSE, that someone dangerous might have been in the areas searched. The Court seems prepared in many contexts to abandon not only the probable cause requirement but any concept of individualized suspicion as a condition to search, as in Michigan Department of State Police v. Sitz, (1990) where it upheld highway-checkpoint sobriety testing. Teague v. Lane (1989) made it much more difficult for constitutional claims by prisoners to be heard in the federal courts, holding that federal...