Bland Justice

The Supreme Court, now as ever, follows the national consensus.

As Washington prepares breathlessly for the resignation of the ailing Chief Justice William Rehnquist, Mark Tushnet makes a well-timed and largely convincing case in A Court Divided that the stakes in the next Supreme Court nomination battle really aren’t that high after all.

Despite the apocalyptic rhetoric of liberal and conservative interest groups, Tushnet argues, the Supreme Court has always followed the election returns. Citing the work of political scientists, Tushnet notes that the Warren and Burger Courts never got very far out of line with the national political consensus, and the Rehnquist Court hasn’t done so, either. In the 1980s and ‘90s, as conservatives won the economic war to pass tax cuts and to scale back the size of government, the court modestly followed Congress’ lead; the justices struck down a few symbols of the post New Deal regulatory state, but only those on the margins. And as the public sided with liberals rather than conservatives in the culture wars—endorsing gay rights and affirmative action and access to early term abortions—so did the court. “The reason the Court’s economic conservatives won and its cultural conservatives lost is simple. In the arena of politics, economic conservatives were winning and cultural conservatives were losing,” Tushnet writes.

Tushnet offers a detailed and accessible narrative about the conservative interest groups that were founded in the ‘80s and ‘90s to persuade the court to undertake a more aggressive roll-back of environmental regulations, zoning regulations, and health and safety regulations. Yet after reviewing the Rehnquist Court’s major interventions in each of these areas, he concludes that the efforts of the conservative groups were largely unsuccessful. “Scholars of real revolutions would be amused by the Rehnquist Court’s federalism revolution,” he writes. “Not a single central feature of the New Deal’s regulatory regime was overturned in that revolution, nor were central elements of the Great Society’s programs displaced.” For all the invective about the court’s decisions limiting the Congress’ power to authorize suits against the states, Tushnet reports, the decisions seem to have had little practical effect. Congress can easily create alternative remedies for victims of discrimination—and has done so, by passing a slightly narrower law forbidding religious discrimination after Congress struck a broader law down.

Tushnet ascribes the court’s comparative moderation to divisions among the Republican justices, arguing that intra-party tensions have limited the degree to which they were willing to advance the agenda of the corporate supporters of the Republican Party. And he argues that the most important division on the court is between justices like Rehnquist—who identify with the modern Republican Party, transformed by Goldwater and Reagan—and justices like O’Connor and Souter, who identify with an older tradition of country-club Republicanism that is more sympathetic to government regulation.

On this point, I’m skeptical. The division between Goldwater and country-club Republicans doesn’t capture the more important division between Rehnquist on the one hand and Antonin Scalia and Clarence Thomas on the other. Rehnquist, who wrote speeches for Goldwater during the 1964 presidential campaign, is undoubtedly a Goldwater Republican, more concerned about the excesses of the welfare state than about enforcing traditional values. But Thomas and Scalia represent a still more recent generation of Reaganite conservative cultural warrior whose sensibility was shaped by the reaction to Roe v. Wade.

Classifying the justices of the Rehnquist Court is an entertaining parlor game, and different readers will prefer their own taxonomies. If forced to choose only two categories, I’d find it more helpful to divide the court between pragmatists and legalists. The pragmatists—including Rehnquist and O’Connor as well as liberals such as Stephen Breyer—are driven more by practical results than by ideological purity. By contrast, the legalists—including Scalia and Thomas, who are occasionally joined at times by liberals such as Ruth Bader Ginsburg and David Souter—are more concerned about applying consistent rules in predictable ways, even if this means challenging federal power on a broad scale.

Understanding Rehnquist as a pragmatist also helps to support Tushnet’s argument that he has been an unusually effective chief justice who has done more to unify the court than his less flexible colleagues. It may also help to explain why he parted company with Scalia and Thomas in cases involving the constitutionality of sentencing guidelines as well as the president’s power to detain enemy combatants. (In both cases, pragmatism led Rehnquist to take the liberal side.)

In the end, any attempt to divide the justices into two simplistic boxes will be too crude to capture the complexity of the Rehnquist Court. The only way to describe those complexities is to offer detailed portraits of the individual justices. It’s here that Tushnet’s book shines. Combining first-hand reporting (some of it from his daughter, a former law clerk for Justice Souter) with effective synthesis, he offers individual chapters on each of the justices that are full of surprising and illuminating insights. Perhaps most notably, he is unimpressed by the bullying Scalia (“Antonin Scalia isn’t as smart as he thinks he is”) and is far more generous toward Clarence Thomas, whom he argues has been underrated as a lawyer. (Justices Breyer and Kennedy have remarked on Thomas’ skill and photographic memory in complicated regulatory cases.) Tushnet argues that Thomas’ work on the court—particularly in federalism cases—has been more creative and interestingly radical than Scalia’s and therefore more likely to make an enduring contribution to constitutional law. Thomas would uproot much of the New Deal in the name of first principles; Scalia is a little more fainthearted.

The ability of future Republican presidents to transform the court, Tushnet concludes, will depend on whether they can nominate and confirm justices who agree with Thomas rather than with O’Connor and Kennedy. “A united Court with new justices who agreed with Thomas could radically transform the constitutional law dealing with Congress’s power to regulate the national economy,” he writes. What is more, if carried to its logical conclusion, Thomas’ vision could lead to the invalidation of laws regulating sexual harassment, racial discrimination, and environmental protections, transforming the scope of federal power rather than tinkering at the edges.

This might suggest that the stakes in the upcoming Supreme Court battles are, in fact, quite high; but Tushnet suggests a court with a majority of Thomases isn’t likely to materialize any time soon. The court does indeed follow the election returns, and there does not yet seem to be a national constituency for dismantling the regulatory state root and branch. If the court struck down laws that members of the current Congress care intensely about—such as antidiscrimination laws or federal criminal laws—Congress would object and the court eventually would retreat. That’s not to say that a court full of Thomases is inconceivable if the GOP continues to hold the White House and Congress for the next decade. But President Bush is not likely to have the opportunity to replace three moderates or liberals with three Thomases during the next four years alone.

Tushnet’s accessible and astute book reminds us—at the moment when we need to be reminded—that the Supreme Court rarely transforms the national political debate. Most of the time, it influences national politics only at the margins—striking down obscure laws that have lost their national constituency (such as sodomy laws) or tacking gently left or right in response to shifts in the national mood. Occasionally, the court tries to impose a vision that is intensely contested by national majorities (as it did during the 1930s), and in these rare cases it tends to provoke a political backlash, followed by a judicial retreat. Most important of all, Tushnet offers a useful caution to his fellow liberals: Rather than squandering their energies on ineffective opposition to Supreme Court nominations, they should focus instead on retaking the White House and Congress.