Rehnquist Court (Update)

• Author: David M. O'B Rien
• Pages: 2168-2170

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The Supreme Court moved in sharply conservative directions after WILLIAM H. REHNQUIST was elevated from associate to CHIEF JUSTICE, replacing retiring Chief Justice WARREN E. BURGER, and an even more conservative Justice, ANTONIN SCALIA, filled Rehnquist's seat in 1986. But its evolving DOCTRINES came in fits and spurts as the Court's center further shifted with subsequent changes in the composition of the high bench.

The balance on the Court changed dramatically in 1988 with President RONALD REAGAN'S last appointee, Justice ANTHONY M. KENNEDY, replacing Justice LEWIS F. POWELL, JR. Powell had been the pivotal vote on major controversies over ABORTION, AFFIRMATIVE ACTION, and the rights of lesbian and gay citizens. The balance, then, again shifted in 1990 and 1991 with the arrival of President GEORGE H. W. BUSH'S two appointees, Justices DAVID H. SOUTER and CLARENCE THOMAS. They replaced the two most liberal justices, respectively, WILLIAM J. BRENNAN, JR. , and THURGOOD MARSHALL. After his initial two terms, however, Souter broke ranks, and on the most divisive issues he now generally votes with Justice JOHN PAUL STEVENS and President WILLIAM J. CLINTON'S two appointees, RUTH BADER GINSBURG and STEPHEN G. BREYER. As a result, in the 1990s the Rehnquist Court often split 5?4 on its most controversial rulings. Kennedy and Justice SANDRA DAY O'CONNOR cast the controlling votes, forcing more conservative Justices to accommodate their views of the Court's role and of CONSTITUTIONAL INTERPRETATION.

The changing course of the Rehnquist Court is registered in its treatment of liberal PRECEDENT s laid down by the BURGER COURT and the WARREN COURT. Initially, a majority agreed with the Chief Justice's long-standing view of precedent; namely, that prior rulings dealing with CIVIL RIGHTS and CIVIL LIBERTIES decided by bare majorities always should be open for reconsideration and reversal. In the first four TERMS of the Rehnquist Court eleven precedents were OVERRULED along with twelve more in the 1990 and 1991 terms. Yet, overturning so many precedents in such a short period of time created a controversy that came to a head when the Justices considered whether to overrule the watershed abortion decision, ROE V. WADE (1973), in PLANNED PARENTHOOD V. CASEY (1992). In a bitterly divided 5?4 decision in Casey, the Court's plurality and joint opinion issued by Kennedy, O'Connor, and Souter upheld "the essence of Roe " partly on the institutional ground that its reversal would hurt the Court's prestige and legitimacy. The battle over that decision apparently curbed the Court's appetite for reaching out to overturn liberal precedents. Since the 1993 term only one or two precedents have been annually overruled, which is in line with the historical average.

Rehnquist, nonetheless, commands a majority for many of the positions he staked out as a dissenting Justice during the years of the Burger Court. Notably, the Court has moved in more conservative directions on issues involving

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the RIGHTS OF THE CRIMINALLY ACCUSED, CAPITAL PUNISHMENT, FEDERALISM, and affirmative action. Kennedy, O'Connor, Scalia, and Thomas also share the Chief Justice's reluctance to approve lower federal court orders to achieve school DESEGREGATION, to expand SUBSTANTIVE DUE PROCESS, or to recognize unenumerated FUNDAMENTAL RIGHTS.

The trend toward contracting the rights of the criminally accused that emerged during the Burger Court not merely continued but became more far-reaching, as the Rehnquist Court reversed decisions of the Burger Court deemed too cumbersome and unworkable for law enforcement. In California v. Acevedo (1991), for example, two precedents were overruled in holding that police may search any container in any part of an automobile stopped on...