Academic journal article Northwestern University Law Review

Pragmatism and Judgment: A Comment on Lund

Academic journal article Northwestern University Law Review

Pragmatism and Judgment: A Comment on Lund

Article excerpt

Nelson Lund's article is entitled The Rehnquist Court's Pragmatic Approach to Civil Rights.1 I raise three questions about his analysis, two of which take off from the phrasing of his title.

First, calling the present Court the Rehnquist Court is obviously easy, and I do it myself in the subtitle of my forthcoming book.2 Professor Lund has of course taken his charge from the conveners of this Symposium, and I do not mean to criticize him for doing so. Still, it may be worth pointing out that convening a symposium that encourages people to think in terms of "the Rehnquist Court" might not be the most intellectually productive approach to understanding the contemporary Supreme Court.

Describing periods by Chief Justices is entirely conventional. The "Chief Justice synthesis" is as pervasive in constitutional law as the "presidential synthesis" is in studies of the presidency.3 Yet, I think, the "Chief Justice synthesis" is often inaccurate. It is reasonably clear now that there is something askew in describing the Burger Court as fundamentally distinct from the Warren Court. From a time shortly after William Brennan arrived at the Court, it was more a Brennan Court than a Warren Court, and throughout Warren Burger's tenure the Court was certainly more a Brennan Court than a Burger Court.

What of the present Court? I think there are several candidates for alternative labels. Taking up a widely noted point that emerges as well in Professor Lund's discussion, we might refer to the present Court as the O'Connor Court, reflecting Justice Sandra Day O'Connor's position as the median Justice, the person whose position on the issues is more likely to determine the outcome than anyone else's.

In addition, Professor Lund's presentation provocatively suggests a great deal of continuity between the so-called Burger Court and the Rehnquist Court. One can read his argument to be that the Burger Court-or, pretty clearly in this context, the Brennan Court-adopted approaches to the nation's civil rights laws that a truly conservative Court would have rejected, and that the Rehnquist Court did not do an entirely satisfactory job of cleaning up the mess that it inherited.4 Labeling a Court with a Justice's name requires that the Justice actually be on the Court, of course, and Justice Brennan himself departed long ago.

There is, though, another candidate. Justice John Paul Stevens served on the Burger (Brennan) Court and on the present Court. Thinking of the present Court as the Stevens Court might capture some of the continuity suggested in Professor Lund's article. That might seem odd at first because Justice John Paul Stevens is conventionally described as a member of the Court's liberal wing, and because the Court is commonly described as a conservative Court.5 Those descriptions are largely accurate, although as Professor Lund and I both suggest not completely accurate.

Why might it make sense to identify the Court with a member of its minority faction? The reason is this: The Court's conservatives have been notably fractured, for reasons I discuss later in this comment.6 Put another way, no Justice on the conservative side has been able to provide the leadership that would hold the conservatives together. It has gone largely unremarked, though, that the Court's liberals have presented a far more united front.7 But there is little reason to think that this liberal unity is a natural phenomenon.8 Rather, it is an accomplishment, facilitated by someone's leadership. We will not know for sure until historians are able to examine the Justices' papers, but I think there is good reason to conclude, even now, that Justice Stevens has provided that leadership notwithstanding his sometimes idiosyncratic positions on important matters.

Second, I wonder about describing the present Court as pragmatic. The term seems to me to have become an all-purpose and almost meaningless label for quite traditional judicial decisions. …

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