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The Jurisprudence of the Rehnquist Court

G. Edward White, University of Virginia School of Law

Abstract

As the Rehnquist Court is summed up, commentators are noting one of its unusual and defining characteristics. Even though, from the 1968 election on, those disappointed with the “liberal” tendencies of the Warren Court called for justices to forswear judicial “activism” and to engage in judicial “restraint” in interpreting the Constitution, and even though successive nominees to the Court in the late twentieth century identified themselves as advocates of “restraint,” the Court, through Rehnquist’s tenure, continued to make decisions that expanded the institutional boundaries of the judiciary and formulated new interpretive glosses of constitutional language. Moreover, even though conventional wisdom anticipated that a succession of Republican presidents would nominate more “conservative” judges to the Court who might “roll back” some of the Warren Court’s decisions, by the time of Rehnquist’s death in 2005 the Court had become prominently identified with lines of decisions, such as those calling for aggressive scrutiny of gender discrimination, those constitutionalizing a right to engage in intimate homosexual conduct, and those upholding racially based affirmative action programs in higher education, which appeared “liberal” in their thrust. Finally, in two lines of decision identified as particularly troublesome for “conservative” critics of the Court, lines that had carved out constitutional protection for criminal defendants and for abortion rights, the Rehnquist Court reaffirmed the two pivotal decisions in those lines, Miranda v. Arizona and Roe v. Wade.

Given the culture of judicial appointments in the late twentieth century, the fact that all of the above decisions were perceived as “liberal” and “activist” was surprising, since most of the nominating presidents of Rehnquist’s tenure had appointed justices with the expectation that they would be conservative and restrained in their approach. But no one could claim that the decisions met that expectation. And in addition to vindicating such “liberal” policies as support for remedies against discrimination based on race, gender, or sexual preference, or solicitude for the rights of criminal defendants and women exercising a choice to have an abortion, some of the decisions appeared to stray from the traditional canons of “restrained” constitutional interpretation by judges, such as fidelity to the constitutional text or respect for established precedent.

By the turn of the twenty-first century it was standard practice for some commentators to claim that the Court had transformed judicial review into “judicial sovereignty,” and to urge the American public, apparently by promoting reform policies at the local level, to “take the Constitution away from the Courts.” The appearance of this commentary was somewhat ironic, since although commentators stressed the Rehnquist Court’s super-activist stance, which they feared might result in its judicializing the presidential election process, dismantling the edifice of federal regulatory power, or reviving a constitutionally protected status for property or economic rights threatened by state regulation, the structure of governance they were concerned to protect against the Court’s prospective assault had largely been given constitutional sanction by Warren Court decisions criticized as inappropriately activist.

Thus the chief puzzle of the Rehnquist Court is how to characterize what appears, from the perspective of political ideology, to be the unexpected tendency of some of its major lines of constitutional cases. This essay seeks to explore that puzzle by putting ideological considerations temporarily to one side, and focusing instead on the Court’s distinctive, and hitherto understudied, constitutional jurisprudence.

Subject Area

Jurisprudence, Legal History, Public Law and Legal Theory

Recommended Citation

G. Edward White, "The Jurisprudence of the Rehnquist Court" (October 2006). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 53.
http://law.bepress.com/uvalwps/uva_publiclaw/art53

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