During last year's presidential election, Republicans and Democrats alike stoked party stalwarts by declaring that the race between George W. Bush and John F. Kerry was not simply about winning the White House for the next four years. With as many as three appointments to the nation's top bench going to the victor, it was also about whether conservatives or liberals would control the United States Supreme Court for the next quarter century or more. Abortion rights, affirmative action, gay marriage, and much, much more supposedly hung in the balance.
But does the Supreme Court really matter that much? In his provocative new book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (W.W. Norton), Mark Tushnet of Georgetown University Law Center suggests that the High Court's influence on American life is generally overstated. He also sketches the legacy of William Rehnquist as chief justice, declares that Antonin Scalia "isn't as smart as he thinks he is," and argues that the often dismissed Clarence Thomas is philosophically the most interesting sitting justice.
reason Editor-in-Chief Nick Gillespie spoke with Tushnet in April.
reason: Is the Supreme Court a major factor in changing American society?
Mark Tushnet: If you're trying to chart the direction of the country--and I'll make up a number here--95 percent of it is due to changes in culture and politics. The Court can have some influence on the margins, pushing things a little further in the direction that they're already moving or sometimes retarding the direction. But 10 years down the line, the society's going to be pretty much where it would've been even if the courts hadn't said a word about it. I've used a metaphor from sound engineering. It's "noise around zero." It sort of fluctuates up and down around the trends, so sometimes they're ahead of the trend. Sometimes they're behind the trend. The reason why the Rehnquist Court's economic conservatives won and its social conservatives lost is because that's what was generally happening in American politics.
reason: Let's talk about this in relation to two controversial cases that seemingly had a massive impact on the country: Roe v. Wade , which legalized abortion, and Plessy v. Ferguson , which ratified de jure segregation.
Tushnet: The Court was a little ahead of society with regard to what we now describe as the core holding of Roe v. Wade--that is, that it's impermissible to criminalize [all] abortions. But that was where the country pretty clearly was trending. I should add that the Court formulated a legal doctrine that pushed them quite a bit ahead of where the country was. That's why the antiabortion response has had legs over the years.
reason: What about Plessy v. Ferguson? The Court stepped in to say that a law barring a railroad from selling first-class tickets to blacks was constitutional. Isn't the fact that the railroad wanted to sell tickets to blacks a sign that the country was trending toward integration?
Tushnet: When you get into details, it always gets complicated. On the issue of race, the Court was where the society was at the time. On the issue of economic regulation, it was pretty much where the society was, too, in allowing the state to regulate economic activity.
reason: Because, contrary to the received wisdom, the so-called Gilded Age was hardly a time of runaway laissez-faire. You actually had the courts supporting all sorts of state regulation of economic activity.
Tushnet: Right. A decade later, in Lochner v. New York, the Court said, no, you have an almost absolute right to contract. And that in the end got washed away [during the New Deal years]. So the Court is a factor in where society's going, but it generally reflects our ambivalence more than it directs us.
reason: As we're talking, we're waiting on a decision in the medical marijuana …