Progressive and Conservative Constitutionalism as the United States Enters the 21st Century

Article excerpt

I

INTRODUCTION

We are at a time of the triumph of conservative judicial ideology. Thirty-two years ago, when William Rehnquist joined the Supreme Court, he was perceived as the far right on the Court. Now, virtually every view that he expressed has come to be the majority position. The Court has significantly limited federal power under the Commerce Clause and section five of the Fourteenth Amendment, (1) tremendously expanded the scope of state sovereign immunity, (2) ordered the end of school desegregation orders, (3) limited access to the courthouse for civil rights plaintiffs, (4) and significantly relaxed restrictions on government aid to religion. (5)

Having taught constitutional law for the last twenty-three years, I have a sense of a major overall shift to the right in constitutional law. In 1980, when I taught my first constitutional law class, the Court had liberals such as William Brennan and Thurgood Marshall. William Rehnquist, without question, was the most conservative member of the Court. Today, there are no liberals in the mold of Brennan or Marshall; there are Justices, such as Antonin Scalia and Clarence Thomas, who are further to the right than Rehnquist and perhaps any other Justices in U.S. history.

Yet, the popular perception, and maybe even the perception among some academics, is that the Supreme Court has not moved all that far to the right. What explains the failure to recognize how much conservatives have triumphed in constitutional law? In part, the incremental nature of constitutional law explains why the overall conservativism has not been recognized. Constitutional law, of course, develops case-by-case, not all at once. No single decision changes the nature of constitutional law. Also, the conservative position has not triumphed in some of the most politically visible and controversial areas; the Court has not ended the constitutional right to abortion, affirmative action, or the restrictions on school prayers. It is easy for people to generalize from these examples, failing to recognize all of the other areas where conservative views have won out on the Supreme Court. Additionally, political rhetoric about the judiciary has not caught up to the current reality; conservatives continue to rail against judicial activism, (6) even at a time when the activism on the Supreme Court--overturning laws, overruling precedents--is all in a conservative direction. (7) Finally, many of the Rehnquist Court's most dramatic changes have been procedural in nature, such as in restricting habeas corpus, (8) limiting access to the courts, (9) and expanding sovereign immunity. (10) These do not capture public attention in a way likely to change overall perceptions of the Court.

This essay makes three main points. First, there are major differences between progressive and conservative judicial philosophies. (11) Second, the differences stem from ideology and are not a product of varying methods of judicial interpretation; the differences in methodologies between conservatives and progressives are driven by the desired results each contingent wants to reach. Third, the challenge for progressive academics is to figure out how to respond to the reality of a conservative Supreme Court for the foreseeable future.

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THE DIFFERENCES BETWEEN CONSERVATIVE AND PROGRESSIVE CONSTITUTIONALISM

Six major differences exist between progressives and conservatives in their views about Supreme Court decisionmaking. These, of course, are not exhaustive of all the differences that exist, but they do capture many of the most important issues facing the Supreme Court today.

First, conservatives seek to narrow the reach of federal power and protect "states' rights." For example, conservatives want to limit the scope of Congress's powers under the Commerce Clause and section five of the Fourteenth Amendment and use the Tenth Amendment as a limit on federal power. …