Academic journal article Social Education

The Rehnquist Court. (Cases, Controversy, and the Court)

Academic journal article Social Education

The Rehnquist Court. (Cases, Controversy, and the Court)

Article excerpt

WILLIAM REHNQUIST became Chief Justice in 1986, replacing Warren Burger, who had served in that role since 1969. Concurrent with Rehnquist's elevation to Chief from his prior position as Associate Justice, Antonin Scalia joined the Court. A year later, Anthony Kennedy replaced Lewis Powell after the Senate rejected Robert Bork. In 1991, Thurgood Marshall, the first African American to serve on the High Court, retired, and after an intense battle, he was replaced by Clarence Thomas. These four justices--Rehnquist, Scalia, Kennedy, and Thomas--joined Sandra Day O'Connor, who became a justice in 1981, to create a conservative majority. In countless cases, including Bush v. Gore, these five justices have formed the majority in 5-4 decisions. From a practical perspective, they are the Rehnquist Court.

In its initial years, the Rehnquist Court's frequent dissenters were the liberal Justices William Brennan, Harry Blackmun, and Thurgood Marshall. But the current Court lacks a liberal in their mold. The other justices on the Court--John Paul Stevens, who was appointed in 1974; David Souter, who replaced Brennan in 1990; Ruth Bader Ginsburg, who succeeded Blackmun in 1993; and Stephen Breyer, who took Byron White's place in 1994-are more moderate, though they function as a consistent dissenting block in the many 5-4 decisions. In the October term 2000, for example, the Court decided 78 cases; 26 were resolved by a 54 margin, and in 14 of those, the majority was held by Rehnquist, O'Connor, Scalia, Kennedy, and Thomas.

What have been the characteristics of the Rehnquist Court? How has it differed from other Courts? The following describes several important themes in the Rehnquist era.

Decrease in the Size of the Supreme Court's Docket

One of the least noted characteristics of the Rehnquist Court has been its smaller annual docket. In recent years, the Court has averaged about 75 decisions a term (for example, in the October 2000 term, the Court decided 78 cases; the year before, 73 cases; and the term before that, 75 cases). This average is in sharp contrast with a decade ago, when the Court averaged more than 150 cases each term. The decrease amounts to 50 percent in the last decade and a one-third reduction over the last several years.

There has been neither public acknowledgment of this trend, nor an explanation for it by the Court. There is also no consensus as to why the change has occurred. Perhaps the Court simply wants to take fewer cases and focus on them in greater detail; the average number of pages per opinion has increased significantly during this time. But it is hard to know what is a cause or an effect: Is the Court taking fewer cases so that it can write longer opinions, or is it writing longer opinions because it has fewer cases? Whatever the explanation, the smaller docket is one of the most important characteristics of the Rehnquist Court. Important legal issues must wait longer before they are resolved, as more conflicts among the circuits and the states go unresolved for a longer period.

The Rise of Federalism as a Limit on the Powers of Congress and the Federal Courts

When historians look back at the Rehnquist Court, they will undoubtedly say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, particularly the last five years, the Supreme Court has dramatically limited the scope of Congress's powers and greatly expanded the protection of state sovereign immunity. All such recent Supreme Court cases have been 5-4 decisions, with the majority comprised of Rehnquist, O'Connor, Scalia, Kennedy, and Thomas. The major cases in which such a trend is evident follow.

Limiting the Scope of the Commerce Power

From 1937 until 1995, no federal law was invalidated as exceeding the scope of Congress's commerce clause authority. But in the past several years, the Supreme Court has made it clear that the judiciary will enforce strict limits on Congress's power under this provision. …

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